REPORT
Nº. 80/01 PETITION
Nº 12.264 FRANZ
BRITTON, AKA COLLIE WILLS GUYANA October 10, 2001 I.
SUMMARY
1.
This Report concerns a petition presented to the Inter-American
Commission on Human Rights (hereinafter referred to as "the
Commission") by letter dated March 21, 2000, by I. Kamau Cush,
Chairman for Economic Empowerment, Guyana, (hereinafter referred to as
"the Petitioner') against the State of Guyana, on behalf of Mr. Franz
Britton, aka Collie Wills (hereinafter referred to as "Mr.
Britton"). The
Petitioner alleges that the State of Guyana had violated the rights of Mr.
Britton as set forth in the American Declaration on the Rights and Duties
of Man (hereinafter referred to as "the Declaration").
2.
According to the Petitioner, Mr. Britton, a Guyanese national, and
a father of three children, was first arrested on January 19, 1999, by
Police officers at Cove and John Police Station, East Coast Demerara,
Guyana, a local police Station and was released on January 23, 1999. The
Petitioner claims that Mr. Britton was asked to report on January 25,
1999, to that same police station and was re-arrested by Leon Fraser, the
Assistant Superintendent of Police, of the Criminal Investigation
Department, headquartered at Eve Leary, Georgetown, Guyana. The Petitioner
states that subsequent to Mr. Britton's re-arrest eye-witnesses claimed
that Mr. Britton was last seen in the company of Mr. Leon Fraser,
Superintendent of Police, head of the dreaded "Black Clothes"
police, and being bundled into a silver gray car, license plate number PGG
3412. The Petitioner
indicates that it is believed that Mr. Britton was taken and confined at
Brickdam Police Station, Georgetown, Guyana. 3.
The Petitioner reports that Mr. Britton has not been seen since his
re-arrest on January 25, 1999, that Mr. Britton's whereabouts are unknown,
and that the police has not given any explanation for his disappearance.
The Petitioner maintains that Mr. Britton's relatives including his
mother, Ms. Irma Wills, have stated that they visited both the Cove and
John Police Station at East Coast Demerara, and the Brickdam police
station where Mr. Britton was last seen, and that they have been stymied
in their efforts by the State authorities in Guyana to ascertain Mr.
Britton's whereabouts after his arrest, detention, and transportation to
Brickdam Police Station, Georgetown, by Mr. Leon Fraser, Superintendent of
Police. 4.
For the foregoing reasons, the Petitioner claims that the State has
violated the human rights of Mr. Britton guaranteed by the provisions of
Articles II (the right to equality before the law), XI (the right to the
preservation of health and well-being)
XVIII, (the right to a fair trial),
XXV (the right to protection from arbitrary arrest), and XXVI (the
right to due process of law) of the Declaration.
The Petitioner also requested Precautionary Measures pursuant to
Article 29 of the Commission's Regulations on behalf of Mr. Britton. 5.
On April 4, 2000, the Commission issued precautionary measures
pursuant to Article 29 (2) of its former Regulations and requested that
the State take the appropriate measures to protect Mr. Britton's life.
The Commission also requested that the State provide it with
information concerning Mr. Britton's health status, the reason for his
arrest and detention, and the location of the detention facilities where
he is being held. 6.
The Commission concludes that this petition
is admissible pursuant to Articles 31, 32, 33, 34, and 37 of its Rules of
Procedure. II.
PROCEEDINGS BEFORE THE COMMISSION
7. In presenting
the petition to Commission, the Petitioner submitted the following
exhibits: 1.
A copy of of two letters dated September 11, and September 15,
1999, written by Mr. Britton's mother Ms. Irma Wills requesting
information concerning her son's (Mr. Britton) location addressed to Mr.
Laurie Lewis D.S.M, Commsissioner of Police, Eve Leary, Georgetown, and
signed by Irma Willis. At the bottom of the page of the letter dated
September 11, 1999, after Ms. Wills signature, there is an encription,
"C.C. Mr. Ronald Gajraj - Minister of Home Affairs; Mr. H.D. Hoyte,
S.C. M.P; Guyana Human Rights Association; and the Editor, Stabroek
News." 2.
A copy of An Application for a Writ of Habeas Courpus Ad
Subjiciiendum brought by Mr. Basil Williams, attorney, on behalf of Mr.
Britton; and a copy of the the Honourable Justice Carl Singh's Order of
the High Court of the Supreme Court of Judicature, Civil Division, dated
February 2, 1999, ordering
Mr. Laurie Lewis, the Commissioner of Police, to have the body of Franz
Britton Wills brought before the Court at Law, in the City of Georgetown,
in the County of Demerara, Guyana, immediately after the receipt of the
Writ of Habeas Corpus. 3.
A copy of an Affidavit dated February 11, 1999, signed by Leon Mark
Fraser (sworn before A Commissioner of Oaths to Affidavits),
which was filed with the Leave of the Court
in the Application for the Writ of Habeas Courpus Ad Subjiciendum. The Affidavit inter
alia states that he released Colly Willis called Franz Britton Willis,
from Brickdam police lock-ups on Wednesday January 27, 1999, and
that he is not in police custody. 4.
A statement of Paula Garraway, which outlines the details relating
to Mr. Britton's first arrest on January 19, 1999, his release on January
23, 1999, after she posted Bail in the amount of $25,000.00 for Mr.
Britton, and the circumstances relating to his re-arrest on January 23,
1999, his disappearance and her efforts to obtain information concerning
his location from Police authorities. 8.
On April 4, 2000, the Commission issued precautionary measures
pursuant to Article 29 (2) of its former
Regulations and requested that the State take the appropriate
measures to protect Mr. Britton's life.
The Commission also requested that the State provide it with
information concerning Mr. Britton's health status, the reason for his
arrest and detention, and the location of the detention facilities where
he is being held. 9.
On April 5, 2000, the Commission opened this case and forwarded the
pertinent parts of the petition to the State pursuant to Article 34 of its
former Regulations, and requested that the State provide its observations
with regard to the exhaustion of remedies and the claims raised in the
petition, within 90 days. The Commission reiterated its request of April 4
and 5, 2000, for information from the State on August 24, 2000, and
February 6, of 2001. 10.
On August 23, 2001, the Commission sent communications to both the
Petitioners and the State pursuant to Article 41(1) of the Commission's
Rules of Procedure informing them that it was placing itself at the
disposal of the parties with a view to reaching a friendly settlement in
the case. 11.
To date the State has not responded to the Commission's
communications of April 4 and 5. 2000, August 24, 2000, and February 6,
2001, concerning the adoption of precautionary measures and admissibility
of the petition and the claims raised therein. III.
POSITIONS OF THE PARTIES ON ADMISSIBILITY A.
Position of the Petitioner 12.
The Petitioner claims that the State has violated the human rights
of Mr. Britton guaranteed by the provisions of Articles II (the right to
equality before the law), XI (the right to the preservation of health and
well-being) XVIII, (the right
to a fair trial), XXV (the
right to protection from arbitrary arrest) , and XXVI (the right to due
process of law) of the Declaration. 13.
The Petitioner alleges that the following State agents are
responsible for Mr. Britton's disappearance whilst in police custody: 1.
Mr. Bharrat Jagdeo, President of Guyana, who appoints the Minister
of Home Affairs; 2.
Mr. Ronald Gajraj, Minister of Home Affairs, who supervises the
Police Department in Guyana; 3.
Mr. Laurie Lewis, Commissioner of Police in Guyana, who supervises
the "Black Clothes" police unit which is responsible for most of
the extra-judicial killings; 4.
Superintendent Leon Fraser, head of the "Black Clothes"
police unit, who is directly responsible for that death squad. 14.
The Petitioner maintains that steps have been taken to obtain
information from the authorities of Mr. Britton's location. Mr. Britton's
mother, Ms. Irma Wills, has issued a statement outlining the frustration
that she has encountered in her efforts to obtain information from the
State Authorities concerning her son's disappearance. In addition, the
Petitioner informs that Mr. Britton's mother wrote to the Commissioner of
Police, Mr. Laurie Lewis D.S.M on March 11, 1999, and September 15, 1999,
requesting an internal investigation of the disappearance of her son
whilst in police custody, and also questioned the $25,000 (Guyanese
dollars) demanded by the police as "Bail" for her son who was
not formally charged with an offence, and the fact that the $25,000 was
returned to her following her son's disappearance.[1]
15.
The Petitioner indicates that the Statement of Paula Garraway
addressed "To Whom it May Concern" and which was presented in
support of the petition informs that Ms. Garraway posted the $25,000 Bail
requested to release Mr. Britton on January 23, 1999, from the Cove and
John Police Station, and that Mr. Britton was asked to report to the Cove
and John Police Station, Demerara on January 25, 1999, which he did and
was re-arrested. According to the Petitioner, Ms. Garraway states that she
went to the Cove and John Police Station subsequent to his re-arrest with
food for Mr. Britton, but was informed that he had been transported to
Brickdam Police Station for questioning.
Ms. Garraway states further, that she went to the Brickdam Police
Station where he was detained and gave a policeman by the name of
"Hope," tea, and a change of clothes for Mr. Britton, but when
she returned with dinner for him that evening two policemen who
were"sitting at the Lock Up doorway" informed her that Mr.
Britton had been released and returned home. 16.
In addition, Ms. Garraway reports that she returned home, and
"a message came from Lock Up that "Abram" known as "Robo
Cop" and Assistant Superintendent Fraser collected him out of the
Lock Up sign in the book put him in a silver grey car PGG 3412."
Ms. Garraway maintains in her Statement that "from that day I
have never heard or seen him ("referring to Mr. Britton)."
Moreover, in her Statement, Ms. Garraway contends that she saw "ASP
(Assistant Superintendent of Police) Fraser
face to face and he told me that my man will come home by weekend
with a smile on his face he speak to me sitting on step." Ms.
Garraway concludes her Statement by outlining the steps she has taken to
ascertain the whereabouts of Mr. Britton from the Police and State
authorities without success.
17.
The Petitioner states that an Application was made on behalf of Mr.
Britton to the High Court of the Supreme Court of Judicature, Civil
Division in Guyana for A Writ of Habeas Corpus by his attorney Mr. Basil
Williams. The Petitioner
indicates that on February 2nd,
1999, the Honourable Mr. Carl Singh, High Court Judge, ordered Mr. Laurie
Lewis, Commissioner of Police, to attend the Law Court on Monday February
8, 1999, and appear before Justice Singh to "Show Cause why a Writ of
Habeas Corpus Ad Subjiciendum should not be issued" and to have
"the body of Franz Britton Wills brought before the Court of Law
immediately after the receipt of such Writ."[2]
The Petitioner claims that to date Mr. Britton has not been seen since he
was re-arrested and detained by the Police on January 23, 1999, and that
Mr. Leon Fraser, head of the "Black Clothes" police unit, stated
inter alia in an Affidavit[3]
to the Court that he released Mr. Britton (Colly Willis) from Brickdam
police station on January 27, 1999, and that he have not seen him since
his release. B.
Position of the State 18.
To date the State has not responded to the Commission's
communications of April 4 and 5. 2000, August 24, 2000, and February 6,
2001, concerning the admissibility of the petition and the claims raised
therein. IV.
ANALYSIS ON ADMISSIBILITY
A.
Competence of the Commission
19.
The admissibility of this petition is being analyzed in accordance
with the provisions of the Commission's
new Rules of Procedure which came into effect on May 1, 2001.[4] 20. In his
petition, the Petitioner alleged violations of Articles II, XI, XVIII,
VII, XXV, and XVI and of the Declaration.
Article 23 of the Commission's Rules of Procedure provides that: [a]ny
person or group of persons, or non-governmental entity legally recognized
in one or more Member States of the OAS, may submit petitions to the
Commission, on their own behalf or on behalf of third persons, concerning
alleged violations of a human right recognized in, as the case may be, the
American Declaration of the Rights and Duties of Man, the American
Convention on Human Rights, the Additional Protocol in the Area of
Economic, Social and Cultural Rights, the Protocol to Abolish the Death
Penalty, the Inter-American Convention to Prevent and Punish Torture, the
Inter-American Convention on the forced Disappearance of Persons, and/or
the Inter-American Convention on the Prevention, Punishment and
Eradication of Violence Against Women, in accordance with their respective
provisions, the Statute of the Commission, and these Rules of Procedure.
The Petitioner may designate an attorney or other person to represent him
before the Commission, either in the petition itself or in another
writing. 21. The petition in
this case was lodged by Mr. I Kamau Cush, a national of Guyana. The
Declaration became the source of legal norms for application by the
Commission[5]
upon Guyana becoming a Member State of the Organization of American States
in 1991.[6]
In addition, the Commission has authority under the Charter of the
Organization of American States, Article 20 of the Commission's Statute,[7]
and the Commission's Rules of Procedure to entertain the alleged
violations of the Declaration raised by the Petitioner against the State,
which relate to acts or omissions that transpired after the State joined
the Organization of American States. Consequently, the Commission has
jurisdiction ratione temporis,
ratione materiae, and ratione
personae to consider the violations of the Declaration alleged in this
case. Therefore, the Commission declares that it is competent to
address the Petitioners' claims relating to violations of the Declaration.
B.
OTHER GROUNDS OF ADMISSIBILITY
a.
Exhaustion of Domestic Remedies 22.
This case raises the issue of whether the State’s silence by not
responding to the Commission’s communications constitutes a waiver to
object to non-exhaustion of domestic remedies as established by the
Commission’s jurisprudence. The
issue of exhaustion of domestic remedies is governed by Article 31 of the
Commission’s Rules of Procedure. Article
31(1) of the Commission’s Rules of Procedure provides that: "In
order to decide on the admissibility of a matter, the Commission shall
verify whether the remedies of the domestic legal system have been
pursued and exhausted in accordance with the general principles of
international law." Article
31(2) states that the preceding paragraph shall not apply when: a.
The domestic legislation of the State concerned does not afford due
process of law for protection of the right or rights that have allegedly
been violated; b.
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 c.
There has been unwarranted delay in rendering a final judgment
under the aforementioned remedies. 23. The State of
Guyana is not a party to the American Convention, however, for purposes of
analysis only, the Commission refers to the case of La Comunidad Mayagna
(Sumo) Awas Tingni in which the Inter-American Court of Human Rights in
construing Article 46(1)(a) of the American Convention[8]
which provisions are similar to Article 31(1) and 31(2) of the
Commission’s Rules of Procedure stated the following waiver of domestic
remedies rule: Indeed,
of the generally recognized principles of international law referred to in
the rule of exhaustion of domestic remedies, the foremost is that the
State defendant may expressly or tacitly waive invocation of this rule
(Castillo Páezcase, Preliminary Objections. Judgment of January 30, 1996.
Series C No. 24, para. 40; Loayza Tamayo case, Preliminary Objections.
Judgment of January 31, 1996. Series C No. 25, para.40). Secondly, in
order to be timely, the objection that domestic remedies have not been
exhausted should be raised during the first stages of the proceeding or,
to the contrary, it will be presumed that the interested State has waived
its use tacitly (Castillo Páez case, Preliminary Objections. Ibid, para.
40; Loayza Tamayo case, Preliminary Objections. Ibid, para. 40; Castillo
Petruzzi case, Preliminary Objections Judgment of September 4, 1998.
Series C No. 41, para. 56). Thirdly, the State that alleges non-exhaustion
must indicate which domestic remedies should be exhausted and provide
evidence of their effectiveness(Castillo Páez case, Preliminary
Objections. Ibid, para. 40; Loayza Tamayo case, Preliminary Objections.
Ibid, para. 40; Cantoral Benavides case, Preliminary Objections. Judgment
ofSeptember 3, 1998. Series C No. 40, para. 31; Durand and Ugarte case,
Preliminary Objections. Judgment of May 28, 1999. Series C No. 50, para.
33).[9] 24. It is also
important to note the Commission’s jurisprudence concerning the issue of
waiver of exhaustion of domestic remedies.
The Commission’s rulings on this issue are illustrated in some
cases from the Caribbean, namely, the cases of Rudolph Baptiste,
Report No. 38/00,[10]
Omar Hall, Report No. 25/00,[11]
and Brian Schroeter and Jeronimo Bowleg, Report No. 123/99.
In those cases the Commission found that where the States were
given the opportunity to respond to the issue of exhaustion of domestic
remedies and failed to do so, that those States had tacitly waived their
rights to object to the admissibility of those petitions based upon the
waiver of exhaustion of domestic remedies rule. 25.
The Commission notes that to date, the State has not provided the
Commission with information concerning the issues relating to the
admissibility and merits of the petition. 26. In light of the
foregoing the Commission finds that in accordance with jurisprudence of
the Inter-American System that the State tacitly waived its right to
object to the admissibility of the petition based upon the waiver of
exhaustion of domestic remedies rule. 27. The Commission
concludes that this petition is admissible pursuant to Article 31 of the
Commission’s Rules of Procedure. b.
Timelines of the Petition 28. In the petition
under study, the Commission has found that the State tacitly waived its
right to object to the admissibility of the petition based upon the
exhaustion of domestic remedies requirement, such that the requirement
under Article 32(1) of the Commission’s Rules of Procedure does not
apply. Nevertheless, the requirements of the exhaustion of domestic
remedies and the presentation of a petition within six months of
notification of the final judgment that exhausted remedies are
independent. Consequently, the Commission must determine whether the
petition under study was presented within a reasonable time. In this
regard, the Commission observes that the petitioner’s original
communication was received on March 21, 2000,
The Commission notes that the Petitioner maintains that an Application was
made on behalf of Mr. Britton to the High Court of the Supreme Court of
Judicature, Civil Division in Guyana for A Writ of Habeas Corpus by his
attorney Mr. Basil Williams, on
February 2nd, 1999. The Commission further observes that the
Honourable Mr. Carl Singh, High Court Judge, ordered Mr. Laurie Lewis,
Commissioner of Police, to attend the Law Court on Monday February 8,
1999, and appear before Justice Singh to "Show Cause why a Writ of
Habeas Corpus Ad Subjiciendum should not be issued" and to have
"the body of Franz Britton Wills brought before the Court of Law
immediately after the receipt of such Writ."[12]
However, the Commission observes that to date, Mr. Britton has not been
seen since he was re-arrested and detained by the Police on January 23,
1999. In light of the particular circumstances of the present
petition, the Commission considers that the petition was lodged within a
reasonable time. c.
Duplication of Procedures 29. This petition
satisfies the requirement of Article 33 of the Commission’s Rules of
Procedure because the information in the record does not reveal that the
subject matter of the petition is pending settlement pursuant to another
procedure before an international governmental organization of which the
State concerned is a member; nor does it essentially duplicate a petition
pending or already examined and settled by the Commission or by another
international governmental organization of which the state concerned is a
member, pursuant to Article 33 (1) and (2) of the Commission's Rules of
Procedure. d.
Colorable claim 30. The Petitioner
has alleged that the State has violated Mr. Britton's rights under
Articles II, XI, XVIII, XXV and XXVI of the Declaration.
Pursuant to Article 34 of the Commission's Rules of Procedure, the
petition states facts that tend to establish a violation of the rights
referred to in Article 27 of these Rules of Procedure,[13] and the statements of the petitioner indicate that the
petition is not manifestly groundless or out of order' or that the
supervening information or evidence presented to the Commission does not
reveal that the matter is inadmissible or out of order. Therefore, the
Commission concludes, without prejudging the merits of the case, that the
petition is not barred from consideration under Article 34 of its Rules of
Procedure. 31. In accordance
with the foregoing analysis, and without prejudging the merits of this
petition, the Commission decides to declare this petition admissible
pursuant to Articles 37 of its Rules of Procedure. THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS DECIDES TO: 1.
Declare that the petition is admissible with respect to the claimed
violations of Articles II, XI, VIII, XXV and XXVI of the American
Declaration. 2.
Maintain in effect the Precautionary Measures issued on April 4,
2000. 3.
Transmit this Report to the State of Guyana and to the Petitioner. 4.
To make public this Report and to publish it in its Annual Report
to the General Assembly.
Done and signed in Washington, D.C., on the 10TH of the month of October, 2001. Signed: Chairman, Claudio Grossman, First Vice-President, Juan Méndez, Second Vice-President, Marta Altolaguirre, Robert K. Goldman, Peter Laurie and Julio Prado Vallejo, Hélio Bicudo, Commissioners. [ Table
of Contents | Previous | Next ] [1]
A copy of both letters dated September 11, and September 15, 1999,
addressed to Mr. Laurie Lewis D.S.M, Commsissioner of Police, Eve
Leary, Georgetown, and signed by Irma Willis, has been provided as an
Exhibit to the Commission. At the bottom of the page of the letter
dated September 11, 1999, after Ms. Wills signature, there is an
encription, "C.C. Mr. Ronald Gajraj - Minister of Home Affairs;
Mr. H.D. Hoyte, S.C. M.P; Guyana Human Rights Association; and the
Editor, Stabroek News. [2]
A copy of the Court's Order was produced by the Petitioner as an
Exhibt. [3]
The Petitioner also submitted as an Exhibit, a copy of an Affidavit
dated February 11, 1999, signed by Leon Mark Fraser (was sworn before
A Commissioner of Oaths to Affidavits),
which was filed with the Leave of the Court
in the Application for the Writ of Habeas Courpus Ad
Subjiciendum. [4]
The Rules of Procedure of the Inter-American Commission on Human
Rights were approved by the Commission at its 109th Special
Session which was held from December 4 to December 8, 2000. [5]
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),
14 July 1989. [6]
Guyana became a Party to the OAS's Charter on January1, 1991. [7]
Article 20 of the Commission’s Statute provides as follows: In
relation to those member states of the Organization that are not
parties to the American Convention on Human Rights, the Commission
shall have the following powers, in addition to those designated in
article 18: (a)
To pay particular attention to the observance of the human
rights referred to in Articles I, II, III, IV, XVIII, XXV, and XXVI of
the American Declaration of the rights and Duties of Man; (b)
To examine communications submitted to it and any other
available information, to address the government of any member state
not a Party to the Convention for information deemed pertinent by this
Commission, and to make recommendations to it, when it finds this
appropriate, in order to bring about more effective observance of
fundamental human rights; and, (c)
To verify, as a prior condition to the exercise of the powers
granted under subparagraph b. above, whether the domestic legal
procedures and remedies of each member state not a Party to the
Convention have been duly applied and exhausted. [8]
Guyana is not a party to the American Convention.
Article 46 Article 46 (1) of the American Convention provides
that: Admission by the Commission of a petition or communication
lodged in accordance with Articles 44 or 45 shall be subject to the
following requirements:
(a) that remedies under domestic law have been pursued and
exhausted in accordance with generally recognized principles of
international Law.” Article
46 (2) of the American Convention provides: The Provisions of the
paragraphs 1(a) and 1(b) of this Article shall not be applicable when: (a)
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; (b)
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 (c)
There has been unwarranted delay in rendering a final judgment
under the aforementioned remedies. [9]
La Comunidad Mayagna (Sumo) Awas Tingni, Preliminary Objections,
Judgment of February 1, 2000, page 12, para 53.
Series C: Opinions and Judmennts, No. 67. [10]
Case No 11.743, (Grenada),
Annual Report of the Inter-American Commission on Human Rights,
1999, Volume I, pp. 721, and 737. [11]
Case No. 12.068,
(The Bahamas), Id. Annual Report of the Inter-American, pp. 184, and
187. [12]
A copy of the Court's Order was produced by the Petitioner as an
Exhibt. [13]
Article 27 of the Commission's Rules of Procedure provides: "The
Commission shall consider petitions regarding alleged violations of
the human rights enshrined in the American Convention on Human Rights
and other applicable instruments, with respect to the Member States of
the OAS, only when the petitions fulfill the requirements set forth in
those instruments, in the Statute, and in these Rules of
Procedure." |