(Jamaica Gleaner) The Caribbean Court of Justice (CCJ) has ruled that Jamaican Shanique Myrie is to be awarded J$3.6m (US$35,000).
The ruling by the six-member panel was delivered via a video conference in the Supreme Court.
Myrie took the Barbados Government to the CCJ alleging that she was discriminated against because of her nationality when she arrived in Barbados on March 14, 2011.
The 25-year-old also claims she was subjected to a body-cavity search in unsanitary and demeaning conditions before being detained and deported the next day to Jamaica.
The Barbados Government denied the claims and argued at the hearing that the Jamaican woman had been untruthful to Immigration Department officials.
Its lawyers also contended that her testimony was contrary to what she had provided in statements to the Barbadian police.
Myrie wanted the CCJ to determine the minimum standard of treatment for CARICOM citizens moving within the region under the Revised Treaty of Chaguaramas.
Myrie had asked the CCJ to award her almost US$500,000 in punitive damages for the treatment she received on her visit to Barbados.
She also wanted the regional court to award costs and special damages.
A summary of the CCJ decision follows:
This summary is not intended to be a substitute for the reasons of the Caribbean Court of Justice
or to be used in any later consideration of the Court’s reasons.
IN THE CARIBBEAN COURT OF JUSTICE
Original Jurisdiction
CCJ Application No OA 2 of 2012
BETWEEN
SHANIQUE MYRIE CLAIMANT
AND
THE STATE OF BARBADOS DEFENDANT
JAMAICA INTERVENER
EXECUTIVE SUMMARY
[1] On March 14, 2011 Shanique Myrie arrived at the Grantley Adams International Airport
in Barbados and was denied entry into that country. She was detained overnight in a cell
in the airport and deported to Jamaica the following day.
[2] Ms Myrie’s experiences in and deportation from Barbados prompted her to file an action
before the CCJ. She claimed that she was made to undergo a painful and humiliating
body cavity search by a Barbadian border official, that her detention cell was insanitary
and that this and other treatment to which she was subjected amounted to a serious breach
of her right of free movement and also a violation of her fundamental human rights and
freedoms. She claimed an entitlement to a right to free movement within the Caribbean
Community, specifically a right of entry without any form of harassment, based on the
combined effect of Article 45 of the Revised Treaty of Chaguaramas (the “RTC” or
“Treaty”) and a Decision of the Conference of Heads of Government of the Caribbean
Community taken at their Twenty-Eighth Meeting (“the 2007 Conference Decision”).
She also claimed that Barbados breached her rights under Articles 7 and 8 of the RTC to
non-discrimination on the ground of nationality only and to treatment that is no less
favourable than that accorded to nationals of other CARICOM States or Third States. The
State of Jamaica had earlier sought and obtained leave to intervene in the action. At the
trial Jamaica supported Ms Myrie’s claims.
[3] Barbados denied that Ms Myrie was subjected to the alleged body cavity search or other
improper treatment by any of its border officials. It denied that her detention cell was
insanitary and denied that she was refused entry into Barbados for the sole reason that she
was a Jamaican national. Barbados claimed that Ms Myrie was rightly refused entry
because she was untruthful about the identity of her Barbadian host.
This summary is not intended to be a substitute for the reasons of the Caribbean Court of Justice
or to be used in any later consideration of the Court’s reasons.
[4] Barbados further submitted that the 2007 Conference Decision did not create for Ms
Myrie any legally binding right but that if it did, that right was not an absolute one and in
any event could not be judicially reviewed. Barbados also objected to Ms Myrie’s claim
that she was discriminated against contrary to Articles 7 and 8 of the RTC.
[5] The Court first satisfied itself of its jurisdiction. The Court noted that having previously
been granted Special Leave to appear, Ms Myrie had fully complied with Article 222
RTC and so had established her standing to take her case before the Court. The Court
also held that its jurisdiction to interpret and apply the Treaty extended to decisions and
other determinations made by relevant competent authorities in the exercise of their
functions ostensibly to fulfil or further the goals and objectives of the Treaty. The Court
indicated, however, that it had no jurisdiction to grant some of the orders requested by
Ms Myrie concerning specific claims that Barbados violated her fundamental human
rights.
[6] The Court went on to consider the relevant standard of proof to be applied in the case. It
noted the flexible approach of international tribunals to this issue. The Court held that the
standard of proof to be applied in this case must be lower than the standard used in a
criminal case, whether domestic or international. Faced with the contradictory versions
of events presented, the Court gave very careful and anxious consideration to all the
material before it given the seriousness of the allegations. The Court was ultimately
satisfied that its findings were fully supported by the objective evidence, the testimony
given and the reasonable inferences that the Court was entitled to make.
[7] After outlining the uncontroverted facts of the case, the Court made findings concerning
the allegedly insanitary state of the cell in which Ms Myrie was detained, the body cavity
search to which she said she was subjected and the circumstances under which this cavity
search allegedly took place. It was Ms Myrie on whom the burden of proof rested to
prove these facts and, after examining all the oral and written evidence presented, the
Court found that she had properly discharged this burden cast upon her.
[8] The Court then addressed Barbados’ claim that the 2007 Conference Decision was not a
binding decision within the meaning of Article 28 RTC because the Minute of the
Conference decision a) referred to what the Conference had “agreed” and not to what it
may have “decided” and b) noted that a “reservation” had been made by Antigua and
Barbuda. Barbados submitted that a mere “agreement” prevented the action taken by the
Conference from becoming a binding decision and in any event the presence of a
“reservation” also had a similar effect on the binding nature of the Conference activity
because observance of the required unanimity principle had been breached. The Court
rejected both submissions. The Court held that the variance between what was “agreed”
and what was “decided” was of no consequence as it was not unusual for the Community
to record its decisions while using the word “agreed”. Further, the Court noted that
subsequent CARICOM documents frequently referred to the action taken at the 2007
Conference Meeting as an implementable decision binding on Member States. As to the
Antigua and Barbuda “reservation”, the Court noted that there was no evidence to
This summary is not intended to be a substitute for the reasons of the Caribbean Court of Justice
or to be used in any later consideration of the Court’s reasons.
indicate that this “reservation” was intended to amount to or was ever regarded as a
negative vote on the decision. All the evidence suggested that neither the Community nor
any Member State had ever suggested that the decision was not validly made. On the
contrary, the 2007 Conference Decision was always treated as valid and binding by the
CARICOM Secretariat and various Organs of the Community.
[9] The Court also rejected Barbados’ submission that, in any event, Article 240 RTC
suggests that decisions such as the Conference Decision must be domestically enacted
before they become binding on the Community plane. The Court held that Article 240
RTC is not concerned with the creation of rights and obligations at the Community level
but speaks to giving effect to Community rights and obligations in domestic law. If
binding regional decisions can be invalidated at the Community level by the failure on the
part of a particular State to incorporate those decisions locally, the efficacy of the entire
CARICOM regime would be jeopardized. Domestic incorporation could not be a
condition precedent to the creation of Community rights as such an interpretation would
produce an anomaly when some States incorporated a Decision and others did not. This
would destroy the certainty, predictability and uniformity of Community law.
[10] The Court stated that Barbados’s position that the Court was unable to review the
activities of its immigration and customs officers was misguided. The Court explained
that the purpose of Article 30 RTC is to allow Member States, as part of their
sovereignty, to reserve public service positions strictly for their own nationals and it was
not intended to limit the right to free movement or to prevent the Court from subjecting to
judicial scrutiny the actions of officials in the exercise of their duties in the context of the
RTC.
[11] Since the right of “definite entry” conferred by the 2007 Conference Decision was a
critical element in the case the Court considered it important to explain certain
substantive and procedural entitlements associated with the right. The Court explained
that the right is part of the broader concept of free movement of CARICOM nationals
within the Community and that concept entails the right of Community nationals to have
unrestricted access to, and movement entails the right of Community nationals to have
unrestricted access to, and movement within, the jurisdiction of the Member States,
subject to public interest considerations. The 2007 Conference Decision was another step
in furthering the fundamental goal and clarifying the right of free movement as it made
clear that every Community national is entitled to a “definite entry” of six months upon
arrival in another Member State.
[12] The Court noted that both the rights of establishment and of the provision of services,
including services in the tourism sector, presume of necessity the right of movement of
Community nationals without being obstructed by unreasonable restrictions. An essential
element of the right of free movement is entry and stay of a Community national in
another Member State hassle free, that is to say, without harassment or the imposition of
impediments. The Court held that where a Community national is refused entry into a
Member State on a legitimate ground, that national should be given the opportunity to
This summary is not intended to be a substitute for the reasons of the Caribbean Court of Justice
or to be used in any later consideration of the Court’s reasons.
consult an attorney or a consular official of his or her country or to contact a family
member. The Court alluded to the principle of accountability which it had referenced in
earlier cases. The court stated that, in this context, this principle requires Member States
to give, promptly and in writing, reasons for refusing entry to a Community national. The
receiving State is also obliged to inform the refused Community national of his or her
right to challenge the decision. In this regard, the Court indicated that it expects Barbados
to interpret and apply its domestic laws liberally so as to harmonise them with
Community law or, if this is not possible, to alter them.
[13] While the 2007 Conference Decision entitles a Member State to limit the free movement
of a national of another Member State if such national is “undesirable” or would become
“a charge on public funds”, the Court indicated that this entitlement must be construed as
an exception to the right of entry. Consequently, the scope of the refusal and the grounds
on which it is should be based must be interpreted narrowly and strictly and the burden of
proof must rest on the Member of State that seeks to invoke either ground. The concept
of undesirability must be concerned with the protection of public morals, the maintenance
of public order and safety and the protection of life and health. While Member States
have some discretion when invoking this exception, the scope of the concept of
“undesirable persons” is subject to control by the major Community Organs, particularly
the Conference, and ultimately by the Court as the Guardian of the RTC. Refusal on the
basis of undesirability must be based on national law and on Community law but where
the former is inconsistent with Community law, the latter must prevail. The Court also
provided general guidelines on how a Member State may limit a visiting national’s right
of entry on the ground of the visitor being a person likely to become a “charge on public
funds”.
[14] The Court held that in order for a Member State to limit the right of entry of a national of
another Member State in the interests of public morals, national security and safety, and
national health, the visiting national must present a genuine, present and sufficiently
serious threat affecting one of the fundamental interests of society. The threat posed
should, at the very least, be one to do something prohibited by national law. The national
must pose a threat to do something prohibited by national law. The Court held that the
principle of proportionality was also relevant to the application of Community law.
[15] The State of Barbados justified its denial of entry to Ms Myrie on the basis that she had
told lies to the immigration officials as to the identity of her host in Barbados but the
Court found that in this case Barbados did not discharge its burden to justify the
limitation placed on Ms Myrie’s right to entry as it produced insufficient evidence to
establish that she posed such a threat as properly to deem her undesirable. While the
truthfulness of replies to questions from border officials may, of course, be officials is, of
course, be a relevant consideration in assessing such threat, the Court was of the view
that Barbados had not established Ms Myrie’s untruthfulness on her replies to such
questions.
This summary is not intended to be a substitute for the reasons of the Caribbean Court of Justice
or to be used in any later consideration of the Court’s reasons.
[16] In addressing Ms Myrie’s claim of discrimination, the Court declared that discrimination
in the context of Community law occurs where there exists treatment that is worse or less
favourable than is accorded to a person whose circumstances are similar to those of the
complainant except for their and the complainant’s nationality. Where a claimant
establishes facts that raise a prima facie case that the receiving State engaged in
discriminating on grounds of nationality, the burden shifts to that State to disprove the
discrimination. The Court ruled that the evidence presented by Ms Myrie and Jamaica,
the Intervener, was not capable of raising a prima facie case that Ms Myrie was the
victim of discrimination. Ms Myrie’s claim that there had been a breach of Article 7 was
therefore dismissed.
[17] Ms Myrie’s claim that, as a Jamaican, she was treated less favourably than nationals of
other States was also dismissed. The Court stated that the right to Most Favoured Nation
treatment, established by Article 8 RTC, may be regarded as a particular, albeit limited,
manifestation of the principle of non-discrimination, although it is broader as it also
extends to Third, i.e. non-CARICOM States. Since the Court had dismissed the
discrimination claim and little or no evidence was proffered with regards to the treatment
by Barbados of nationals of Third States, Ms Myrie’s allegation of a breach of Article 8
RTC could not be sustained.
[18] The final issue the Court considered was Ms Myrie’s claim for damages. The Court
reiterated the circumstances under which a claim for compensatory damages may
succeed. The Court held that Ms Myrie’s claim was such a case. It found that the breach
of Ms Myrie’s right of entry without harassment or the imposition of impediments
encompassed all that transpired between the time of her arrival in Barbados and her
unlawful expulsion the following day. This necessarily included her subjection to the
body cavity search and being detained overnight in a cell in deplorable conditions. The
Court held that this treatment constituted a very serious breach of Ms Myrie’s right to
entry and so she was entitled to be awarded damages, though not exemplary damages.
The Court indicated that it had the power to award compensation for non-pecuniary
damage under the RTC. The Court therefore awarded damages at the high end of the
spectrum appropriate for the breach of the particular right in question, even though in
principle the nature of the right of entry would not usually attract huge damages and
indeed may in some cases attract no damages whatsoever.
[19] In all the circumstances, the Court made a declaration that Barbados had breached Ms
Myrie’s right to enter Barbados. The Court ordered Barbados to compensate Ms Myrie in
pecuniary damages in the sum of $2240 and non-pecuniary damages to the tune of BB$
75000. The Court also ordered Barbados to pay Ms Myrie’s reasonable costs. The Court
refused all other declarations and orders sought by Ms Myrie and Jamaica.
THE MYRIE CASE TIMELINE
March 14, 2011 – Myrie travels to Barbados and was deinied entry after reported inhumane cavity search
January 12, 2012 – application filed to Caribbean Court of Justice after Jamaican and Barbadian authorities failed to arrive at a settlement.
February 17, 2012 – First case management hearing by video link from the Supreme Court to ensure all relevant documents were filed and the way the case should proceed.
April 20, 2012 – CCJ ruled that there was sufficient grounds for Myrie’s case to be heard.
September 27, 2012 – Jamaican government given permission by the CCJ to intervene in the hearing.
December 12, 2012 – During a case management conference by video link at the Supreme Court a trial date was set for the hearing to start March 4, 2013 in Jamaica to reduce expenses for Myrie.
March 4 to 6, 2013 – CCJ sits at Jamaica Conference Centre, Kingston, Jamaica to hear Myrie’s testimony.
March 18 and 19, 2013 – case resumes in Barbados where the Barbadian government presented its case.
April 8 and 9, 2013 – Final hearing at which the lawyers made submissions before the CCJ at its Headquarters in Trinidad.
October 4, 2013 – CCJ ruling handed down.
