5.3 With regard to the author’s claim that
Mr. Baksh lacked credibility and that testimony
provided by the doctor and other witnesses had not
been conclusive, the Committee recalls its constant
jurisprudence that it is in general for the courts of
States parties to the ICCPR, and not for the
Committee, to evaluate the facts in a particular case.
The information before the Committee and the
arguments advanced by the author do not show that
the Courts' evaluation of the facts and their
interpretation of the law were manifestly arbitrary or
amounted to a denial of justice. Accordingly, this
part of the communication is inadmissible under
article 2 of the Optional Protocol.
foreman of the jury, and that unlike in some other
trials the trial against the two brothers was not
aborted as a consequence of the incident. The
Committee notes that although it is not in the
position to establish that the performance and the
conclusions reached by the jury and the foreman in
fact reflected partiality and bias against Bharatraj
and Lallman Mulai, and although it appears from the
material before it that the Court of Appeal dealt with
the issue of possible bias, it did not address that part
of the grounds of appeal that related to the right of
Bharatraj and Lallman Mulai to equality before the
courts, as enshrined in article 14, paragraph 1, of the
Covenant and on the strength of which the defence
might have moved for the trial to be aborted.
Consequently, the Committee finds that there was a
violation of article 14, paragraph 1, of the Covenant.
5.4 The Committee declares the remaining
allegations related to the incident of jury tampering
admissible insofar as they appear to raise issues
under article 14, paragraph 1, and proceeds with its
examination on the merits, in the light of all the
information made available to it by the author,
pursuant to article 5, paragraph 1, of the Optional
Protocol.
6.3 In accordance with its consistent practice the
Committee takes the view that the imposition of a
sentence of death upon conclusion of a trial in which
the provisions of the Covenant have not been
respected, constitutes a violation of article 6 of the
Covenant. In the circumstances of the current case
the State party has violated the rights of Bharatraj
and Lallman Mulai under article 6 of the Covenant.
Consideration of the merits
6.1 The Committee notes that the independence
and impartiality of a tribunal are important aspects of
the right to a fair trial within the meaning of article
14, paragraph 1, of the Covenant. In a trial by jury,
the necessity to evaluate facts and evidence
independently and impartially also applies to the
jury; it is important that all the jurors be placed in a
position in which they may assess the facts and the
evidence in an objective manner, so as to be able to
return a just verdict. On the other hand, the
Committee recalls that where attempts at jury
tampering come to the knowledge of either of the
parties, these alleged improprieties should have been
challenged before the court.4
7.
The Human Rights Committee, acting under
article 5, paragraph 4, of the Optional Protocol to the
International Covenant on Civil and Political Rights,
is of the view that the facts before reveal violations
of article 14, paragraph 1, and article 6 of the
International Covenant on Civil and Political Rights.
8.
In accordance with article 2, paragraph 3 (a),
of the Covenant, the State party is under an
obligation to provide Bharatraj and Lallman Mulai
with an effective remedy, including commutation of
their death sentences. The State party is also under
an obligation to avoid similar violations in the
future.
6.2 In the present case, the author submits that the
foreman of the jury at the re-trial informed the police
and the Chief Justice, on 26 February 1996, that
someone had sought to influence him. The author
claims that it was the duty of the judge to conduct an
inquiry into this matter to ascertain whether any
injustice could have been caused to Bharatraj and
Lallman Mulai, thus depriving them of a fair trial. In
addition, the author complains that the incident was
not disclosed to the defence although both the judge
and the prosecution were made aware of it by the
9.
Bearing in mind that, by becoming a party to
the Optional Protocol, the State party has recognized
the competence of the Committee to determine
whether there has been a violation of the Covenant
or not and that, pursuant to article 2 of the Covenant,
the State party has undertaken to ensure to all
individuals within its territory and subject to its
jurisdiction the rights recognized in the Covenant,
and to provide an effective and enforceable remedy
in case a violation has been established, the
Committee wishes to receive from the State party,
within 90 days, information about the measures
taken to give effect to the Committee's Views. The
State party is also requested to publish the
Committee's Views.
4
See Willard Collins v. Jamaica, Case No. 240/1987,
Views adopted on 1 November 1991, paragraph 8.4.
74
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