REPORT Nº 1/06
CASE 12.264

PUBLICATION

FRANZ BRITTON

GUYANA

February 28, 2006

I.        SUMMARY

          1.       This Report concerns a petition presented to the Inter-American Commission on Human Rights ("the Commission") by letter dated March 21, 2000, by I. Kamau Cush, Chairman for Economic Empowerment, Guyana, ("the petitioner”) against the State of Guyana (“the State” or “Guyana”), on behalf of Mr. Franz Britton, a.k.a. Collie Wills ("Mr. Britton").  The petitioner alleges that the State has violated the rights of Mr. Britton as set forth in the American Declaration on the Rights and Duties of Man ("the Declaration"). According to the petitioner, Mr. Britton, a Guyanese national and father of three children, was first arrested on January 19, 1999, by police officers at Cove and John Police Station, East Coast Demerara, Guyana.  Mr. Britton was then released on January 23, 1999.  The petitioner claims that Mr. Britton was asked to report on January 25, 1999 to that same police station where he was re-arrested by a police division known as the Quick Reaction Group or the “Black Clothes”.  According to the petitioner, the “Black Clothes” division is “a unit that functions as a death squad.”  The petitioner states that Mr. Britton was last seen being forced by police officers into a car.  The petitioner reports that Mr. Britton has not been seen since his re-arrest on January 25, 1999, and that his whereabouts are unknown, despite multiple inquiries made of the State.  The petitioner further alleges that the State has not furnished any information about the whereabouts of Mr. Britton despite these inquiries. 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. 

          2.       Up to the date of this report, the Commission has received no response from the State to its requests for information.

          3.       In Report 80/01 adopted by the Commission on October 10, 2001 during its 113^th regular period of sessions, the Commission decided to admit the petition and to continue with the analysis of the merits of his case.  As set forth in the present report, having examined the information and arguments concerning the merits of the petition, the Commission has concluded that the State is responsible for violating Mr. Britton’s rights under the Declaration, including Article I (right to life, liberty, and personal security), Article XVIII (right to a fair trial), Article XXV (right of protection from arbitrary arrest) and Article XXVI (right to due process).

          4.       Based upon these conclusions the Commission recommends that the State inform the relatives of Mr. Britton of his whereabouts and fate and conduct a thorough investigation to identify the persons responsible and criminally prosecute them.  The Commission also recommends that the State adopt the necessary measures to prevent the recurrence of such a disappearance.  Finally, the Commission recommends that the State of Guyana provide reparations for the relatives of Franz Britton including moral damages in compensation for the suffering occasioned by Mr. Britton’s disappearance. 

II.       PROCEEDINGS SUBSEQUENT TO ADMISSIBILITY REPORT 80/01

          5.        In Report 80/01, adopted by the Commission on October 10, 2001, during its 113^th regular period of sessions the Commission declared that Mr. Cush’s petition was admissible with respect to Articles II, XI, XVIII, XXV and XXVI and that it would continue with the analysis of the merits of the claims.  Report 80/01 was transmitted to the State and petitioner by note dated October 22, 2001.

6.       By note of December 26, 2002, the Commission requested the State to submit observations on the merits of the case within two months of the request, pursuant to Article 38(1) of the Commission’s Rules of Procedure.  The Commission reiterated that request to the State by communications of June 30, 2004 and October 5, 2004.  Up to the date of this report, the Commission has received no response to these communications to the State.

III.      ANALYSIS

             A.      Findings

7.       The Commission notes that the State has not disputed the petitioner’s allegation that Mr. Britton was abducted and ‘disappeared’ by State agents.  In this respect, the Commission has received no information or observations from the State with respect to the petitioner’s petition, despite repeated requests. Accordingly, the Commission invokes Article 39 of its Rules of Procedure, which provides that:

The facts reported in the petition whose pertinent parts have been transmitted to the Government in reference shall be presumed to be true if, during the time period set by the Commission, the Government has not provided the pertinent information requested, as long as other evidence does not lead to a different conclusion.[1]

8.       The Commission notes that the State at no time has responded to the petitioner’s allegations or questioned the petition’s admissibility.  While the Commission acknowledged that the State is not a party to the American Convention on Human Rights, the Commission is authorized under Article 20 b. of its Statute “….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”.

9.       The IACHR also considers that the information requested by the Commission is information that would enable it to reach a decision in a case submitted to it.  The Inter-American Court of Human Rights has indicated that cooperation by the States is an essential obligation in international proceedings in the inter-American system:

In contrast to domestic criminal law, in proceedings to determine human rights violations the State cannot rely on the defense that the complainant has failed to present evidence when it cannot be obtained without the State's cooperation.

The State controls the means to verify acts occurring within its territory.  Although the Commission has investigatory powers, it cannot exercise them within a State's jurisdiction unless it has the cooperation of that State.[2]

10.     The IACHR and the Inter-American Court of Human Rights have also indicated that “the silence of the accused or elusive or ambiguous answers on its part may be interpreted as an acknowledgment of the truth of the allegations, so long as the contrary is not indicated by the record or is not compelled as a matter of law."[3] The Commission therefore reminds the State of Guyana that it has a duty to cooperate with the organs in the inter-American human rights system, for optimal fulfillment of its functions to protect human rights.

11.     Based on the record before it, the Commission presumes the facts alleged in the petition to be true, and is satisfied that there is no other evidence that could lead to any other conclusion.  In this respect, the Commission presumes that the State effectuated the abduction and disappearance of Mr. Britton, having regard to the uncontested evidence before the Commission that:

(a)         Mr. Britton 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. 

(b)        Mr. Britton was asked to report on January 25, 1999 to that same police station where he was re-arrested by a police division known as the Quick Reaction Group or the “Black Clothes”, and that he was last seen being forced by police officers into a car silver/gray car, license plate number PGG 3412 and taken to the Brickdam police station in Georgetown, Guyana.

(c)         Mr. Britton's relatives including his mother, Ms. Irma Wills have received no information from the State about the whereabouts of Mr. Britton, despite multiple inquiries made of the police and other State officials.[4]

(d)        Mr. Britton has not been seen since his re-arrest on January 25, 1999 and that his whereabouts remain unknown.

B.       Application and interpretation of the American Declaration

12.     The Petitioner in the present case has alleged that the State of Guyana is responsible for violations of the rights of Franz Britton under Articles II, XI, XVIII, XXV, and XXV of the American Declaration of the Rights and Duties of Man.  As has been well established by inter-American jurisprudence,[5] the American Declaration constitutes a source of international legal obligation for all member states of the Organization of American States, including Guyana.[6]  Moreover, the Commission is empowered under Article 20 of its Statute and Articles 49 and 50 of its Rules of Procedure to receive and examine any petition that contains a denunciation of alleged violations of the human rights set forth in the American Declaration in relation to OAS member states that are not parties to the American Convention.

13.     According to the jurisprudence of the inter-American human rights system, the provisions of its governing instruments, including the American Declaration, should be interpreted and applied in context of developments in the field of international human rights law since those instruments were first composed and with due regard to other relevant rules of international law applicable to member states against which complaints of human rights violations are properly lodged.[7]

14.     In particular, the organs of the inter-American system have previously held that developments in the corpus of international human rights law relevant to interpreting and applying the American Declaration may be drawn from the provisions of other prevailing international and regional human rights instruments.[8] This includes the American Convention on Human Rights which, in many instances, may be considered to represent an authoritative expression of the fundamental principles set forth in the American Declaration.[9]  Pertinent developments have also been drawn from established jurisprudence on the issue of forced disappearance, including the Inter American Convention on Forced Disappearance of Persons.

15.     Accordingly, in determining the present case, the Commission will, to the extent appropriate, interpret and apply the pertinent provisions of the American Declaration in light of current developments in the field of international human rights law, as evidenced by treaties, custom and other relevant sources of international law.

16.     The petitioner has specifically alleged violations of Articles II, XI, XVIII, XXV, and XXV, but has not expressly invoked Article I of the Declaration (which protects the right to life, liberty and personal security).  After consideration of the facts alleged in the petition, and based upon the principle of iura novit curia,"[10] the Commission also recognizes a colorable violation of Article I of the Declaration.

17.     In the Commission’s view, what happened to Mr. Britton, as set forth in this case corresponds in all respects to the concept of "forced disappearance", as developed in the jurisprudence of the Commission and the Inter-American Court of Human Rights and incorporated into Article II of the Inter-American Convention on the Forced Disappearance of Persons.[11]

18.     Article II of the Inter-American Convention on Forced Disappearance of Persons defines "forced disappearance" in the following terms:

For the purposes of this Convention, forced disappearance is considered to be the act of depriving a person or persons of his or their freedom, in whatever way, perpetrated by agents of the state or by persons or groups of persons acting with the authorization, support, or acquiescence of the state, followed by an absence of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees.

19.     Guyana is not a State Party to the Convention on Forced Disappearance, but the mere elaboration of a definition of "forced disappearance" by the drafters of the Convention is useful in order to identify the elements of the same.  The essential element is the deprivation of an individual’s liberty by agents of the State ostensibly under law, followed by the refusal or incapacity of the State to explain what occurred to the victim or to provide information regarding his whereabouts.

20.     The Inter-American Court of Human Rights (the "Court" or the "Inter-American Court") has held that "the forced disappearance of human beings is a multiple and continuous violation of many rights under the Convention that the States Parties are obligated to obligated to respect and guarantee."[12]  The preamble to the Inter-American Convention on Forced Disappearance of Persons reaffirms that forced disappearance of persons "violates numerous non-derogable and essential human rights enshrined in the American Convention on Human Rights, in the American Declaration of the Rights and Duties of Man, and in the Universal Declaration of Human Rights."[13]

21.     The Commission notes that in the Velasquez Rodriguez case, the Inter American Court held that:

The context in which the disappearance of Manfredo Velásquez occurred and the lack of knowledge seven years later about his fate create a reasonable presumption that he was killed [14].

Similarly, the Commission considers that Mr. Britton could reasonably be presumed dead in light of the context of his disappearance and the length of time (over six years) that has elapsed since he was last seen.

22.     Based on these principles, the Commission examines the human rights that were engaged as a result of the forced disappearance of Franz Britton.

C.      Article I

23.     Article I of the American Declaration protects the right of every human being to life, liberty, and the security of his person.  The Inter-American Court of Human Rights has pointed out that the forced disappearance of persons "frequently (involves) execution of those detained, in secret and without any kind of trial, followed by hiding of the body with a view to removing all material traces of the crime and achieving impunity for those who committed it, which amounts to brutal violation of the right to life …."[15]

24.     In the case of Mr. Franz Britton, the evidence adduced leads to the presumption that he was detained by State agents, and never released.  This appears to be buttressed by the fact that his detention and disappearance were reported to the authorities and that his whereabouts remain unknown more than six years after his detention.  As the Commission previously noted, the context in which Mr. Britton disappeared together with the fact that his whereabouts are still unknown are reasonable grounds for assuming that he was killed.[16]

25.     The disappearance of Franz Britton violates the right to personal security recognized by Article 1 of the Declaration.  As the Inter American Court has pointed out, “…the mere subjection of an individual to prolonged isolation and deprivation of communication is in itself cruel and inhuman treatment which harms the psychological and moral integrity of the person, and violates the right of every detainee ….to treatment respectful of his dignity.”[17] 

26.     Concerning violation of right to liberty, the Inter-American Court has ruled that:  "the kidnapping of a person is an arbitrary deprivation of liberty, an infringement of a detainee's right to be taken without delay before a judge and to invoke the appropriate procedures to review the legality of the arrest, all in violation of Article 7 of the Convention which recognizes the right to personal liberty."[18]

27.     While it is acknowledged that the Court was addressing itself (in the preceding excerpts) to provisions of the American Convention, the Commission finds that this reasoning is applicable with equal force to the right to life, liberty and security of the person recognized by Article 1 of the American Declaration.

28.     Based on the Commission’s findings on the disappearance of Mr. Britton and the application of the foregoing jurisprudence, the Commission concludes that the State is responsible for Mr. Britton’s disappearance, and therefore a violation of the right to life, liberty, and personal security enshrined in Article I of the Declaration.

D.      Article XVIII[19]

          29.     Article XVIII of the Declaration protects a person’s right to a fair trial, protecting all persons from arbitrary acts of authority that violate fundamental constitutional rights.  Based on the Commission’s finding that the State (a) never charged Mr. Britton with a criminal offence or brought him before court of competent jurisdiction; (b) is responsible for Mr. Britton’s detention, disappearance and death; (c) appear to have failed to investigate Mr. Britton’s disappearance despite written requests from his family,[20] the Commission further finds that Mr. Britton’s right to judicial protection was violated by the State contrary to Article XVIII the American Declaration.

30.     Article XVIII of the Declaration also recognizes the right of Mr. Britton’s relatives to have his disappearance effectively investigated by the Guyanese authorities, to have those responsible prosecuted, to have the appropriate punishment meted out, to be informed of the whereabouts of his remains and to be compensated for the damages and injuries they sustained.[21]  In the Commission’s view, the State has failed to satisfy any of these obligations.

E.       Articles XXV and XXVI

31.     Article XXV protects, inter alia, the right to be free from arbitrary arrest and to be deprived of one’s liberty only in cases and according to procedures established by pre-existing law.  Article XXVI protects the right to be presumed innocent until proven guilty as a result of an impartial and public hearing, in a manner previously established by law, as well as prohibiting cruel and unusual punishment. 

32.     As the Commission has noted before, a detention is arbitrary and illegal when carried out for reasons other than those contemplated and required by law.  As the Commission observed in a previous case from Peru,[22] “detention for improper purposes is in itself a punishment or sentence, a kind of sentence without trial or extralegal sentence violating the democratic principles of the independence and separation of powers as well as the guarantees of legality and the presumption of innocence”.

33.     In the instant case, Mr. Britton was deprived of his liberty without any access to the procedures established by preexisting law and was denied his right to an impartial and public hearing.  In fact, it appears that Mr. Britton was accorded no legal process before his disappearance whatsoever.  Accordingly, the Commission finds that the State violated Articles XXV and XXVI with respect to Mr. Britton.

IV.      Additional Allegations

34.     Article II of the American Declaration provides that “all persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed, or any other factor.”  The petitioner has alleged a violation of this Article, but without any supporting facts or evidence.

35.     The petitioner has submitted no evidence that Mr. Britton’s disappearance was attributable to race, sex, language, creed, or any other factor.  The Commission therefore concludes that there is no basis for finding that Guyana violated Mr. Britton’s right to equal protection, as alleged or at all.

36.     Article XI protects a person’s right to health and well-being through sanitary and social measures relating to food, clothing, housing, and medical care, to the extent permitted by public and community resources.  The petitioner claims that Mr. Britton’s rights under this provision were violated bv the State but again, has not advanced any evidence to support this contention.  As the Commission concluded with respect to Article II, the Commission finds no evidentiary basis to find a violation of Article XI.

V.      PROCEEDINGS SUBSEQUENT TO MERITS REPORT 77/05

37.     The Commission examined this case in the course of its 123^rd period of regular session and on October 15, 2005 adopted Report N° 77/05 pursuant to Article 43 (2) of its Rules of Procedure.

38.     On November 01, 2005, the Commission transmitted Report N° 77/05 to the State, and requested that the Government of Guyana inform the Commission within two months as to the measures adopted to comply the recommendations made to resolve the situation denounced.

39.     The Commission did not receive a response from the State to Report N° 77/05.

VI.      CONCLUSIONS

40.     The Commission, based on the foregoing considerations of fact and law and in the absence of any response from the State, ratifies its conclusions that:

a.       agents of the State security forces abducted and/or detained Franz Britton and that during the following six years his whereabouts have not been identified, and that, as a result, Guyana has violated the rights of Franz Britton to life, liberty, personal liberty, judicial protection, arbitrary arrest and due process of law, all recognized, respectively, in Articles I, XVIII, XXV, XXV and XXVI of the American Declaration. 

b.       The State is not responsible for violating the rights of Mr. Britton under Articles II and XI.

VII.     RECOMMENDATIONS

41.     Based on the analysis and the conclusions in the present report,

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS REITERATES THE FOLLOWING RECOMMENDATIONS TO THE STATE OF GUYANA:

1.       Carry out a serious, impartial and effective investigation by means of the competent organs, to establish the whereabouts of Franz Britton and to identify those responsible for his detention-disappearance, and, by means of appropriate criminal proceedings, to punish those responsible for such grave acts in accordance with the law.

2.       Adopt the necessary legislative or other measures to prevent the recurrence of such events and provide, in all cases, the required due process and effective means of establishing the whereabouts and fate of anyone held in State custody.

3.       It adopt measures to make full reparation for the proven violations, including taking steps to locate the remains of Franz Britton and to inform the family of their whereabouts; making the arrangements necessary to facilitate the wishes of his family as to an appropriate final resting place; and providing reparations for the relatives of Franz Britton including moral and material damages in compensation for the suffering occasioned by Mr. Britton’s disappearance and not knowing his fate.

VIII.    PUBLICATION

42.     In accordance with Article 43 of the Commission’s Rules of Procedure, the Commission, the Commission transmitted the content of this report, adopted as Report Nº 77/05 to the State and to the Petitioners by communications dated November 01, 2005. The State was granted a period of two months within which to inform the Commission of the measures taken to comply with the Commission's recommendations.  The State failed to present a response within the time limit prescribed by the Commission.  
 

43.     Based upon the foregoing considerations, and in the absence of a response by the State to Report Nº 77/05, the Commission in conformity Article 45(3) of its Rules of Procedure decides to ratify the conclusions and reiterate the recommendations in this Report, to make this Report public, and to include it in its Annual Report to the General Assembly of the Organization of American States.  The Commission, according to the norms contained in the instruments which govern its mandate, will continue evaluating the measures adopted by the State of Guyana with respect to the above recommendations until they have been complied with by the State.
 

Done and signed in the city of Washington, D.C., on the 28^th day of the month of February, 2006.  (Signed): Evelio Fernández Arévalos, President; Paulo Sérgio,Pinheiro, First Vice-President; Florentín Meléndez, Second Vice-President; Clare K. Roberts, Freddy Gutiérrez Trejo, Paolo G. Carozza and Víctor E. Abramovich Commissioners.