Human Rights Committee

Eighty-ninth Session

2440^th Meeting (AM)

HUMAN RIGHTS COMMITTEE EXAMINES ISSUES CONCERNING HUMAN TRAFFICKING, JUVENILE

JUSTICE, ACCESS TO LEGAL AID, AS IT CONCLUDES REVIEW OF REPORT BY BARBADOS

Human rights education was an essential contribution to the long-term prevention of human rights abuses in Barbados and an important investment in the endeavour to achieve a just society in which all enjoyed their rights, the head of that country’s delegation told the Human Rights Committee this morning.

As the 18-member expert Committee that monitors compliance with the International Covenant on Civil and Political Rights concluded its consideration, begun yesterday, of Barbados’ third periodic report, Louis Tull of Barbados fielded a range of questions, including on the trafficking of persons, the practice of charging 11 year-olds with a criminal offence, treatment of juvenile inmates, limited access to legal aid, and the statute on “flogging” in schools.

Owing to its geographical location, the Caribbean was particularly vulnerable to migratory movements from one part of the hemisphere to another, and thus it was “very susceptible” to trafficking in persons, arms, illegal drugs and so forth, Mr. Tull acknowledged.  Because of the nature of the archipelago –- the scattering of small islands –- the borders were porous and could be accessed by anyone interested in moving in with fast boats.  Enormous resources would be required to monitor and police the borders around the entire island. 

He said that the authorities had met with the Caribbean Community (CARICOM) members and evolved several initiatives.  Among those had been the establishment of protection programmes for the victims of trafficking.  That involved all the jurisdictions of the islands.  Steps had also been taken to firm up a task force to deal with scouting and exploration of the waters of the Caribbean Sea.  The matter had first been brought to the attention of the region at a meeting in Guyana in April 2005, when the idea of mapping out a regional plan had emerged.  The region had also cooperated with the International Organization of Migration.

Pressed by experts about how an 11-year-old could possibly have the physical and mental maturity to be criminally charged, Mr. Tull confirmed that the age of criminal responsibility was indeed 11 years, and that between ages 11 and 14, a court could determine that a person had sufficient capacity to “create crime”.  As for whether a person that age had the mental and psychological capacity to be so charged, a judge could carry out an inquiry with a person between age 11 and 14 to determine whether the person was capable of understanding the law.

Presently, juvenile offenders up to the age of 15 were housed in Government reform schools, he replied to a further series of questions.  Between the ages of 16 and 18, they were considered young offenders and could be placed either in reform schools or prisons, depending on the seriousness of the offence.  If a young offender between 16 and 18 was placed in prison, he or she was housed in a part of the prison that was separate and apart from the adult criminal population.  So, although those youths were physically in the prison, they were not part of the adult prison population in any way.  With new prisons scheduled for completion in August, there would be a completely separate juvenile centre eliminating all contact with the adult prisoners.  There had always been a juvenile court in Barbados, and minors were entitled to legal aid.

To the several queries about access to legal aid -- on which Barbados had a reservation to the Covenant -- he said that many persons charged criminally were not sharp or intelligent enough to defend themselves, so there was wide legal aid access.  In a perfect world, everybody in Barbados would have legal representation before the court, but Barbados did not have the resources to provide free lawyers to every one of the thousands of cases that appears before the courts annually.  Whenever a judge found that a case presented a certain legal difficulty or a person needed assistance, however, he or she could order legal aid.  The judge had the duty and responsibility to assist that person in his or her defence.

Experts, picking up the thread from yesterday, stressed that the persistent existence of corporal punishment of children might lead the way to completely unacceptable excesses in the behaviour of the State party.  Mr. Tull said that flogging sounded harsh, but it implied “reasonable discipline”, guided by specific principles.  Moreover, there was not “constant thrashing” in the schools on a daily basis.  Although not in a position to get into the psychological or sociological aspects of flogging, however, he said that all seven members of his delegation had been flogged by parents and teachers at school.  That might not prove anything, but “if we’re going to tell anecdotes, let us tell them”, he said. 

The Committee will meet again formally at date and time to be announced.

Background

The Human Rights Committee met this morning to conclude its consideration of the third periodic report of Barbados, although the document before it contains the country’s third to sixth periodic reports (document CCPR/C/BRB/3).  It also met to consider general comments of the Committee, including the revised general comment on article 14.  (For background, see press release HR/CT/688 of 22 March.)

Country Response to Experts’ Comments and Questions

Responding to questions posed during the Committee’s session on Tuesday, LOUIS TULL, who headed the Barbados delegation, said the 2002 constitutional amendment had not set time limits for convicted prisoners.  Cases that predated the amendment were not affected by the changes.  The lack of a time limit had benefits on both sides.  It allowed the Appellate Courts enough time to exhaust all remedies.

Regarding the 46 police complaint cases, he said no statistics were currently available.

Concerning the Ombudsman’s Office, he said it was independent.  The Government was discussing the prospect of raising its profile to give it constitutional status to ensure total independence.

In terms of creation of a National Human Rights Committee, he said Barbados was not against doing so but needed to consider whether resources were available and how to streamline the work of overlapping bodies addressing human rights issues. 

Experts’ Questions and Comments

RAJSOOMER LALLAH, expert from Mauritius, asked Mr. Tull to elaborate on Barbados’ experience with the new Caribbean Court of Appeal. 

MICHAEL O’FLAHERTY, expert from Ireland, asked for clarification concerning the national advisory body on disabilities.  He also expressed concern over the criminalization of homosexuality, urging Barbados to be more sensitive about the need to protect homosexuals not only from prejudice but also violence.

NIGEL RODLEY, expert from the United Kingdom, reiterated his question as to whether legislation existed on mental torture and whether there were incidents of judicially ordered corporal punishment.

Country Response

LOUISE TULL said the Caribbean Court of Appeals was in the early stages of functioning.  So far it had handled less than a dozen cases, mainly from Guyana and Barbados.  He would be in a better position to discuss its impact when other Caribbean States came on board.

Regarding disabilities, he said the National Advisory Committee for Disabilities and the Binational Disabilities Council had overlapping responsibilities.  The advisory committee had not been functioning because other State agencies working with the private sector were carrying out the work intended to be done by the committee.  He told the experts he would investigate the overlap of the two agencies upon his return to Barbados.  The Government involved committee members in planning and programming and closely consulted with the Ministry of Transportation, for example, on the needs of disabled persons.  The very ethos of Barbados was that all minorities must be protected.

Concerning torture, he said there was no legislation on criminally sanctioning mental torture. 

In terms of corporal punishment, he said a statute provision existed for court orders for flogging of juvenile offenders, including at reform schools.  Corporal punishment was also allowed in prisons however it had not been carried out there for many years.  Corporal punishment was common in the old days, but nowadays judges rarely called for it.

The head of the delegation, said that, notwithstanding the difficulty of the State party in determining the extent of trafficking in persons, it had taken steps to prevent it and to protect the victims.

Owing to its geographical location, the Caribbean was particularly susceptible to migratory movements from one part of the hemisphere to another, he said.  Thus, it was very susceptible to trafficking in persons, arms, illegal drugs and so forth.  Because of the nature of the archipelago – the scattering of small islands – the borders were porous, and that required a tremendous amount of resources to police and monitor.  The airport and seaport were the two ports of entry, and most recently, a private port had opened for private yachts, but the islands could be accessed all around by anyone interested in moving in with fast boats, especially from Saint Vincent only 100 miles away. 

So, on the trafficking question, Barbados’ authorities had met with the Caribbean Community (CARICOM) members and had evolved several initiatives, apart from information campaigns.  Among those had been the establishment of victim protection programmes for the various jurisdictions involving all the islands.  Steps had also been taken to firm up a task force to deal with scouting and exploration of the waters of the Caribbean Sea.  The matters had first been brought to the attention of the region at a meeting in Guyana in April 2005, when the idea of mapping out a regional plan had come into being.  The region also had cooperation with the International Organization of Migration.

He said, “It troubles us.  What more can I say?  We are working actively on it.  It is not yet a big problem… but it probably is happening.”  He added, “We are trying to nip it in the bud by approaching it at a local and regional level.”

Steps were also being taken to protect persons who were travelling throughout the Caribbean, he said.  Work was under way on a visa bill in the region to harmonize the disparate visa policies, and a security watch list was also being formulated.  Much thinking had been triggered by the security measures generated by the World Cup.  Many of those steps should have been undertaken years ago.

In terms of the treatment of prisoners following the tragic fire incident on 29 March 2005, the Government had made every effort in the days immediately following the crisis to ensure enforcement of minimum prisoners’ comfort.  Prison rules had not been strictly enforced, as it was not possible to secure society from the 1,000-odd prisoners owing to no suitable place to house them, but within six weeks, the rules were generally observed once again.  The inmates’ attorneys had access to them from the start, but the prisoner’s relatives did not.

Barbados was currently working on a refugee policy, and it enjoyed an ongoing relationship with the Office of the United Nations High Commissioner for Refugees, he noted.  His country did not deport asylum seekers.  Rather, it got in touch with the United Nations and arranged to have those persons placed in another country.  Basically, there was no problem of asylum seekers in Barbados, and there had been only one applicant that he knew of, and that person had been referred to the High Commissioner.  However, Barbados did have people in transit to other destinations.  A person in Barbados could only be deported if he or she had entered the country illegally.  If anyone was unhappy with the result in that regard, there was an immigration review committee, an independent body.

Replying to some previous questions about the judiciary, he said that in all family law matters, except divorce, one could obtain legal aid.  Any judge could order legal aid, even for a charge that was not a “schedule offence”.  A person was also entitled to legal aid for any constitutional motion.  As for how the legal aid system worked, an applicant was given a list of attorneys from which to choose.

On violence against women and children, he said that the report had listed several measures, including the adoption of the domestic violence act.  In terms of results in practice of that and other measures, those figures were not immediately available.  Statistics on cases of domestic violence and sexual offences were still being gathered and collated, but efforts continued to strengthen measures to protect women from violence. 

He said that actions were also being taken in relation to sexual exploitation and the physical abuse of children.  He cited the protection of children act of 1990, which was a legislative instrument, but there were also several programmes in place.  Among them, a child-care board had been set up under the Ministry of Social Transformation.  The board was responsible for investigating complaints made in relation to children.  There was also a campaign under way to sensitize the public about child abuse issues, and a juvenile liaison scheme had put in place social workers to help police officers gain a better understanding of the issue.

The State party intended to establish a juvenile court, he said.  Presently, children up to the age of 15 were housed in Government reform schools; between the ages of 16 and 18, they were considered young offenders and could be placed either in reform schools or prisons, depending on the seriousness of the offence.  If a young offender between 16 and 18 was placed in prison, he or she was housed in a part of the prison that was separate and apart from the adult criminal population.  So, although those youths were physically in the prison, they were not part of the adult prison population in any way.  With the new prisons being built – to be completed in August – there would be a completely separate juvenile centre eliminating all contact with the adult prisoners.  There had always been a juvenile court in Barbados, and minors were entitled to legal aid.

The age of criminal responsibility in Barbados was 11 years; between age 11 and 14, a court could determine that a person had sufficient capacity to “create crime”, he said. 

In closing that grouping of replies, he said the awareness of human rights issues formed an ethos in Barbados.  It was Barbados’ view that human rights education constituted an essential contribution to the long-term prevention of human rights abuses in the country.  It would also represent an important investment in the endeavour to achieve a just society in which all human beings enjoyed their rights and in which their rights were respected. 

Experts’ Comments and Questions

MAURICE GLELE-AHANHANZO, expert from Benin, referred to question 13, concerning articles 8 and 24 of the Covenant, on slavery and forced labour.  What measures were taken to combat trafficking in human beings?  Exploitation of migrants – including for prostitution – was a concern, according to State Department documents and the International Organization for Migration (IOM).  Had Barbados conducted any inquiries into this and had justice intervened?   What specific measures were there to address slavery and forced labour?  What specific measures were there to protect domestic violence victims, including men?  Where there domestic violence assistance centres? 

IVAN SHEARER, expert from Australia, referred to question 14 on standards of minimum rules for treatment of prisoners.  Was he correct in believing that prisoners did not have the right to specific recourse for abuse by prison officers other than the right to take action in high courts?  The Barbados Prison Act made reference to section 20 on the use of force, stating that prison officers might use force as was reasonably necessary.  Besides being examined by a medical officer after being struck by a prison officer, what recourse did prisoners have?  What was meant by “improper police conduct”?  Was there a corresponding definition for prison officers’ conduct?  During the relocation period following the prison fire, two prisoners had been shot and injured by security personnel, and one had been shot and killed by a guard.  Where there any investigations of those incidents?  Were officers held to account?  Reports also said that two people had died while in detention at the temporary prison due to unsanitary conditions.  Could the delegation elaborate on that? 

On question 16, he applauded Barbados’ cooperation with the Office of the United Nations High Commissioner for Refugees (UNHCR) to devise practices and new laws for asylum seekers.  He asked for further information on question 17 on the legal aid system.

MICHAEL O’FLAHERTY, expert from Ireland, referred to question 19 on the sexual exploitation of children.  The Child Care Board had received reports of physical abuse experienced by one in 200 children.  That was a high figure.  To what extent was Barbados implementing programmes to change societal attitudes and behaviour regarding the treatment of children?  He noted an impossible tension between a policy of combating physical abuse against children but at same time condoning flogging.  The International Labour Organization (ILO) Committee of Experts on the Convention on the Worst Forms of Child Labour specifically requested that Barbados criminalize the trafficking of children under 12 years old.  Was Barbados considering ratifying the Palermo Protocol?  Trafficked women who had worked as prostitutes were being deported from Barbados to Guyana and the Dominican Republic, according to the IOM and other sources.  To what extent was Barbados reconsidering its deportation policy and how was it protecting women in those situations?

What was the Juvenile Young Offenders Policy?  He applauded Barbados decision to increase the minimum age of criminal responsibility from 7 to 11 but noted that the Committee on the Rights of the Child deemed 11 year olds too young for criminal charges taking into account levels of physical and mental immaturity.  Was age 11 consistent with that perspective?

On question 22, he noted that the Committee had not had been briefed by non-governmental organizations (NGOs) from Barbados nor were any non-governmental organizations present in the room.  He noted the apparent low level of knowledge among non-governmental organizations of the Covenant and its proceedings.  Would the Barbados Government be willing to put the Committee’s proceeding on its website and in newspapers and public libraries?

RUTH WEDGWOOD, expert from the United States, asked for data on casualties resulting from the fire.  Were any wounded or burned?  On flogging, she said simply keeping it on the books could set a tone for other relationships, such as subtly giving parents license to harshly discipline their children.  The term flogging indicated severity -- that was worrisome.

PRAFULLACHANDRA NATWARLAL BHAGWATI, expert from India, said he was very concerned about the position of children in Barbados’ society.  There was no provision in the law against trafficking in children under the age of 18, and there was reportedly a lot of trafficking in children for sexual and labour exploitation.  He wished to know the steps taken to prevent that, especially since children living in poverty were prime targets for trafficking for the purposes of employment, including for child prostitution. 

It had also been reported, including by the United States Government, that violence and abuse against children was a serious problem in Barbados. What steps were being taken to prevent that and to protect the children?

He also asked a number of questions about the Caribbean Court of Appeals, including how many judges it had, how they had been appointed, whether there was any regional representation, and what kind of appeals it was hearing.

The meeting was then suspended briefly to give the delegation time to compile its response.  

Delegation Response

To questions on slavery and forced labour, the head of the delegation said that section 14 of the Constitution specifically stated that no person could be held in slavery or servitude and no person could be required to perform forced labour.  That did not require under situations of lawful detainment, during wartime or natural calamities.  To ensure that there was no exploitation of migrant workers, the Constitution specifically protected the rights of migrants.  Also, the main trade union had publicly articulated its responsibility in that regard, and, as a member of the International Labour Organization, Barbados had pledged to act on behalf of migrant workers.

As for prostitution, he said that there was legislation “on the books” against prostitution, and Barbados was working with other CARICOM members to formulate a definitive policy and legislation to deal with trafficking.  To protect victims of domestic violence, there were community shelters, and the courts could grant restraining orders.  The Government had also devised a list of strategies, and it was constantly upgrading and reviewing all related legislation.  Therapy and counselling for both the victims of abuse and the abusers were also available.

To a further question about the prison fire, he said one prisoner had been shot and killed.  A commission of inquiry was investigating the fire and had begun its work two weeks ago.  There would also be an inquest into the prisoner’s death.  A prison officer who used force against a prisoner must allow that prisoner to see a doctor, and the prison officer must also report the incident to the superintendent of prisons.  The visiting magistrate could hear prisoner complaints and might take further steps to see to it that prisoners’ rights were vindicated. 

Yes, he replied to a further question, the age of criminality was 11.  To the question about whether the person had the mental and psychological capacity to be so charged, he said that although the age for criminal charge was 11, he could say categorically that a judge could carry out an inquiry with a person between age 11 and 14 to determine whether that person, despite what the law said, was capable of understanding the law.

On flogging, he said he had taken the Committee’s view “to heart”.  The flogging sounded harsh, but it implied “reasonable discipline”.  In schools, specific infractions of discipline were set out by the Ministry of Education citing 11 violations and their levels, and there was only one level for which flogging – corporal punishment – could be applied.  So, the practice was “very rare”.  It was not as if the schools were using it on a daily basis, not as if they were engaged in “constant thrashing”.  He was not in a position to get into the psychological or sociological aspects of flogging, or the numbers of children charged with assault at the early stage in life.  If the Committee wanted to tap into anecdotal information -- and it seemed that it did – he said that all seven members of his delegation had been flogged by parents and teachers at school.  That might not prove anything, but “if we’re going to tell anecdotes, let us tell them”, he said. 

As for legal aid, many persons charged criminally were not sharp or intelligent enough to defend themselves, so there was wide legal aid access.  In a perfect world, everybody in Barbados would have legal representation before the court, but Barbados did not have the resources to provide free lawyers to every one of the thousands of cases that appeared before the courts annually.  Whenever a judge found that a case presented a certain legal difficulty or a person needed assistance, however he or she could order legal aid.  The judge had the duty and responsibility to assist that person in his or her defence.

On trafficking of children for labour and sexual exploitation, Mr. TULL said the Sexual Offences Act prohibited the sexual exploitation of everyone.  In trying to work out comprehensive legislation on trafficking, Barbados would bear in mind the point made on sections dealing specifically with children.  Barbados rigidly enforced child labour laws, which prohibited employment of children under 16.  It also vigorously enforced education laws which required all children to attend school until that age.

He said the Criminal Court of Justice comprised a president and many judges.  Judges were appointed by regional legal services commissions, whose members were appointed upon the recommendation of the Caribbean Bar Association. 

Experts’ Comments and Questions

MICHAEL O’FLAHERTY, expert from Ireland, returning to the issue of trafficking, stressed that prostitutes who had been trafficked were modern day slaves.  Barbados had prosecutorial discretion that could be exercised for that particular group.  He requested a written response on Barbados position on the Palermo Protocol on trafficking, and a response to the recommendation of the ILO Committee of Experts that Barbados criminalize the trafficking of persons under the age of 18.  Could the delegation also respond to questions on non-custodial or non-criminal justice approaches to dealing with juvenile crimes? 

IVAN SHEARER, expert from Australia, said that paragraphs 115 and 116 of that report stated that the Committee for National Reconciliation was supposed to be concerned with race relations.  What problems had been identified?  What had brought about the need for that Committee?

RUTH WEDGWOOD, expert from the United States, returned to the issue of the prison fire, asked if there had been any casualties resulting from the spreading fire and the physical restraint that was usually imposed in places like prisons and nursing homes.  Was there an inquiry into this?  She also stressed the importance of providing free, quality legal aid.

Country Response

Concerning modern day slavery, Mr. TULL said people entering Barbados and engaging voluntarily in prostitution were dealt with under the Immigration Act.  Most foreigners involved in prostitution had not been forced into the business.  They were deported or told to leave the country for breaching immigration laws.  A fuller written response, including data, on that issue would be provided at a later date.

Barbados was currently studying the Palermo Protocol and would make a decision at a later date.

In terms of non-custodial justice approaches, he said that indeed Barbados had non-custodial centres for minors.  Very few juveniles were put in custody.  Most were put on probation and given mandatory counselling and community service.

Concerning the figure that 1 in 200 children experienced physical abuse, he said that number did not tell the whole story.  A large percentage of those 200 were the same children suffering repeat offences by the same relatives.  However, he said he would request more information on that and stressed that it was indeed the Government’s responsibility to do so.

Regarding the Committee on National Reconciliation, he said there was no single catalyst for its creation in 1999.  The Government felt the need to set up a committee to develop, coordinate and implement the programme to forward the process toward national reconciliation.  The idea was to build a feeling of national oneness.  There had been debate in the country over which racial or ethnic group had the greatest economic influence and distribution of wealth, and how that in turn affected social relations.

Concerning free legal aid for all, he said the Government had done its best to provide free, quality legal aid, including for serious offences.  However its limited resources did not allow Barbados to provide legal aid for everyone.  He hoped that would change in the future. 

Closing Remarks

Committee Chairman RAFAEL RIVAS POSADA, expert from Colombia, said the Committee would put forward its conclusions on Barbados next week.  He stressed the importance of State parties extending rights and protection to their citizens as called for in the Covenant and to provide information on that process in a timely fashion.  He thanked the delegation for its candid responses and treatment of the proceedings.  While State parties had no mandate to interpret international instruments, there was cause for concern by the Committee until they in fact adjusted domestic laws in line with the Covenant.  Committee members had expressed concern over the death penalty law in Barbados even though it was not specifically prohibited by the Covenant, as well as concern over corporal punishment of children and the need to set up a National Human Rights Commission.

Mr. TULL said the dialogue was very useful and that he would relay the experts’ comments to the Barbados Government in the spirit in which they were made.  He accepted many of the experts’ recommendations.  The Barbados Government would continue to listen to the views of the experts and the international community on capital punishment and flogging primarily as they concerned human rights.  However, he said he did not agree with the experts’ views that prisons in Barbados were repressive.

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