34
115. It is important to note that, even if Mr. Caesar had been able to appeal to the
Privy Council, such an appeal would have been most unlikely to succeed. In this
regard the expert witness Desmond Allum commented that:
[o]ne of the fundamental reasons why there has been no substantial challenge to the
legality of a sentence of corporal punishment is the “savings clause”. This clause
effectively ensured that it was not open to [domestic] courts to impugn the
constitutionality of a sentence of corporal punishment as this [clause] predated the
coming into force of the 1976 Constitution, and accordingly, was “saved” into [Trinidad
and Tobago’s] law as good law.
In the recent case of Matthew v The State of Trinidad and Tobago, the Judicial
Committee of the Privy Council considered the “savings clause” in the context of the
death penalty. The majority of the Board of the Privy Council held that the mandatory
death penalty is a cruel and unusual punishment, and is therefore inconsistent with
Sections 4(a) and 5(2)(b) of the Constitution. However, a majority of the Board held
that the legislation imposing the mandatory death penalty was passed prior to the
Constitution, and, because of the “savings clause” in Section 6, it could not be
invalidated by reference to the fundamental rights for which Sections 4 and 5 of the
Constitution provide. Accordingly, the majority upheld the validity of the mandatory
death penalty.44
116. Similarly, in a 2002 judgment with regard to a case in the Bahamas, the
Judicial Committee of the Privy Council observed that “[…] it is accepted that flogging
is an inhuman and degrading punishment and, unless protected from constitutional
challenge under some other provision of the Constitution, is rendered
unconstitutional by [the provision of the Constitution prohibiting torture and inhuman
or degrading treatment or punishment]”.45
Nevertheless, on the basis of the
“savings clause” in the Constitution of the Bahamas, the Privy Council upheld the
constitutionality of the legislation authorising corporal punishment.
117. It follows from the above that the State did not provide the alleged victim
with an effective remedy to challenge the application of the aforementioned corporal
punishment. Therefore, the Court considers that Trinidad and Tobago is responsible
for the violation of Article 25, in relation to Articles 1(1) and 2, of the Convention, to
the detriment of Mr. Caesar.
X
REPARATIONS
(Application of Article 63(1) of the American Convention)
Arguments of the Commission
118.
a)
b)
44
The Commission argued that:
the State must pay the reasonable and justified material and moral
damages related to the violations suffered by Mr. Caesar;
Mr. Caesar is entitled to receive a sum of compensation sufficient to
reflect the fundamental and serious nature of the violations committed
Affidavit of expert witness Mr. Desmund Allum, sworn on October 26, 2004 (Exhibits to the Case
File).
45
Prince Pinder v. The Queen, Privy Council Appeal No. 40/2001 (Bahamas), September 23, 2002,
[2003] 1 AC 620, para. 5.
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos