...continued

B.       Position of the State

1.       Position of the State on Admissibility

          53.     As of the date of this report, the Commission had not received any observations from the State on the admissibility of Mr. Aitken’s complaint. As a consequence, the State may properly be considered to have implicitly or tacitly waived its right to object to the admissibility of the Petitioners’ claims.

2.       Position of the State on the Merits

(a)      Articles 4 and 5 of the Convention - Mandatory Nature of the Death Penalty

54.     The State denies that the imposition of the death penalty in Jamaica is not reserved for the most serious offenses as provided for under Article 4(2) of the Convention. Rather, the State argues that a conviction for murder is one of the most serious crimes and is precisely the reason why it attracts one of the most serious penalties.  The State also contends that the death penalty for murder has long been recognized in countries that imposed that penalty both before the Convention and after, and represents a “classic” example of the most serious crimes under Article 4(2) of the Convention.  The State therefore characterizes the Petitioners’ argument in this regard as, at best, a “specious” attempt to challenge the validity of capital punishment in Jamaica.  The State emphasizes that it is the elements of the offense that attract the penalty and clearly refers to the circumstances in which the offender committed the offense.  According to the State, in this context the characterization of murder as a serious crime is even more clearly demonstrated and its individualized application manifest.

55.     The State also argues that the reformed system of capital punishment contained in Jamaica’s Offenses Against the Person Act 1992 is sufficient to comply with Article 5 of the Convention, as it is restricted to the most serious crimes in conformity with Article 4(2) of the Convention and nothing in Article 5 of the Convention can be construed so as to derogate from the express provisions of Article 4.

56.     In this connection, the State contends that a legislature is vested with the authority to assess the situations which have arisen or which may arise and must form a judgment as to what laws are necessary and desirable for the purpose of maintaining peace, order and good government.  The State therefore argues that it cannot be for the courts or the Commission without possessing evidence on which a decision of the legislature has been based to overrule and nullify the decision.

57.     In this respect and in response to the Commission’s previous findings on this issue, the State confirms that the Constitution has vested in the Jamaican Privy Council the power to determine whether the death penalty will be carried out in an individual case.  In addition, the individual circumstances are among the factors taken into account in determining whether the sentence should be implemented.  Accordingly, the State submits that there is no basis for the assertion that because of the mandatory nature of the death penalty in Jamaica, the alleged victim could be deprived of consideration based upon this personal circumstances and the circumstances of his particular case.

58.     In conclusion, the State submits that once an offender has been given an opportunity to prove his or her innocence and fails, then the person should face the full circumstances of the law.

(b)      Article 4(6) of the Convention – Prerogative of Mercy

59.     In relation to the right to seek amnesty, pardon or commutation of sentence under Article 4(6) of the Convention, the State denies that the right to apply for mercy in Jamaica under Articles 90 and 91 of the Jamaican Constitution is illusory or ineffective. Rather, the State argues that the Constitution prescribes principles that guide the Governor General in the exercise of discretion and refers in this regard to section 90(1)(c) and 91(1) and (2) of the Constitution of Jamaica. [16] In particular, the State contends that under the provisions of the Jamaican Constitution, any person sentenced to death for an offense against the law of Jamaica automatically has his or her case heard by the Jamaican Privy Council to determine whether the Prerogative of Mercy should be exercised in his or her favor, accordingly dispensing with the need for a condemned prisoner to “apply” for mercy.

60.     The State also argues that during the process of determining whether to exercise the Prerogative of Mercy, the Jamaican Privy Council has before it a written report of the case from the trial judge, together with such other information derived from the record of the case or elsewhere as the Governor General may require.  Further, the sentence of death is stayed during the process.

61.     Finally, the State argues that there is no factual basis upon which the alleged victim can legitimately complain since the Jamaican Privy Council has not yet considered the exercise of the Prerogative of Mercy and has not denied the alleged victim any rights contrary to recommendations made by international bodies such as the Commission.  The State therefore contends that the issue at this stage is “purely academic, hypothetical and premature and should be dismissed.”

(c)      Article 5 of the Convention - Conditions of Detention and Method of Execution in Jamaica

62.     The State raises several arguments in relation to the Petitioners’ allegations regarding Mr. Aitken’s conditions of detention.  First, the State contends that notwithstanding the contents of the reports from international and domestic monitoring bodies, a generalized position cannot be adopted each time a complaint is lodged by an inmate.  Rather, complaints must be dealt with individually and each case must be considered on its individual merits.

63.     The State indicated in its observations of October 10, 2000 that it would have Mr. Aitken’s conditions of detention investigated and the results submitted to the Commission. In its subsequent observations, the State referred to and relied upon three affidavits, one dated November 11, 1998 by Zepheniah Page, a warder employed at St. Catherine District Prison, a second dated November 11, 1998 by Melbourne Jones, a Superintendent employed at the same prison, and a third dated November 26, 1998 by Dr. Raymoth Notice, a medical doctor also employed at the prison.  The contents of the affidavits indicate that they were prepared for use in litigation before the Supreme Court of Jamaica in the matter of Neville Lewis v. The Attorney General of Jamaica and the Superintendent of the St. Catherine District Prison.  The affidavits provide information concerning the conditions of detention of the applicant in that case, Neville Lewis, on death row at St. Catherine District Prison in Jamaica.

64.     Based upon these affidavits, the State contends that the conditions of detention of death row prisoners at St. Catherine District Prison include the following:

(a)         On admission to the prison each prisoner convicted of capital murder and sentenced to death is given a slop pail, a jug for holding water, a drinking cup and a blanket and then taken to a cell block where condemned prisoners are kept.

(b)        Each prisoner is kept in a separate cell.  Each cell is approximately 9 feet long, 6 feet wide and 10 feet high.  The walls and floor of the cells are made of concrete.  The floor is very smooth.  The walls are painted but the inmates paste pictures from magazines and newspaper on the walls.  Inside each cell is a covered mattress made from foam like any mattress, which can be bought in any department store.  In the cell there is a concrete elevation on which the mattress is placed.

(c)         Each prisoner on death row is issued monthly with toilet paper, bath soap and toothpaste.  On request, each prisoner is entitled to a bible, other reading material and stationary.

(d)        The cells are in rows and they face each other and are separated by a corridor approximately 13 feet wide.  There are bright florescent lamps in the ceiling along the corridor.  These lights are never turned off.  Each cell has a socket above the door on the outside of the cells.  Some inmates place wires inside the sockets to light bulbs inside their cells and others attach the wires to hot plates, which they use for cooking.

(e)         There are open spaces at the two sides of the building where the inmates are housed.  The space on one side is about 9 feet x 120 feet and on the other side is about 36 feet x 110 feet.  At the front there is an open space 27 feet x 45 feet.  The ventilation in the cells is very good as air flows freely through the doors of the cells.

(f)         Each prisoner cleans his cell daily under the supervision of a warder.  The prisoners are supplied with disinfectant.  Cleaning the cells entails wiping the floor clean with a sponge or a cloth.  The prisoners sweep the corridor, which runs along the cells, daily.

(g)        The slop pail, which is issued to the prisoners, has a cover.  If a prisoner uses the pail during the day, he requests permission from a warder on duty and is allowed to empty the pail in a general area provided for that purpose.  A pipe with running water is at the place where pails are emptied and each prisoner is given disinfectant to wash his bucket when he empties it.  If a prisoner uses the pail in the night, he is allowed to empty it  the following morning when the warder arrives on duty.

(h)        Condemned men are allowed to keep radios in their cells, provided the radio is operated with batteries.  The light reflected in the cells is adequate for prisoners to read in day and night.

(i)         There is a daily routine for each prisoner on the condemned cells.  At approximately 8:30 am the warder unlocks the cell door and allows the prisoner to empty his slop pail.  He is allowed to wash his face and brush his teeth.  He is then returned to his cell and he is given breakfast.  After breakfast, he is allowed to exercise in the open area at the side of the building and take his bath.  He may also, if he wishes, be allowed to see the doctor, attend at the administrative office, his attorney-at-law, religious adviser or any other visitor.  The time spent varies depending on the circumstances.  He is then returned to his cell, where he is given lunch.  In the afternoon the cell is unlocked and the process is repeated, (i.e. empty slop pail, exercise, etc.).  He is then returned to his cell and given another meal.  The cell is then locked until the following morning.

(j)         The inmates are given special care and attention.  The warders develop special relationships with them and there is no rigid enforcement of any rules regarding the time spent in activities outside their cells.

(k)         They are allowed to play football in the open space on a regular basis, although there is an unwritten rule that no more than two prisoners should be unlocked at any one time.

(l)         There is a senior officer at the prison who communicates with the prisoners on a daily basis to take note of any complaints which they may have and to assess the general conditions of the cells and the working areas.  Reports are submitted to the Superintendent who has responsibility for the prison and for the welfare of the prisoners.  This process is carried out not only to ensure that prisoners are taken care of but also to ensure that warders are performing their duties.

(m)        All complaints made by prisoners are dealt with promptly.

(n)        If a prisoner is abused he sometimes refuses to leave his cell and demands that he see the Superintendent who has responsibility for the prison.  In any such circumstance, the Superintendent goes to see the prisoner, takes his complaint, and takes appropriate actions against the offender, generally to the satisfaction of the complaining prisoner.

(o)        the St. Catherine District Prison houses a Medical Center that is staffed by two registered practitioners, a general practitioner and a psychiatrist.  There is also a registered dentist.  A matron who is also a registered nurse, a qualified social worker and several medical orderlies assist these doctors.

(p)        The general practitioner attends the Medical Center daily and when he is not on duty, he is on call.  The dentist attends at the medical Center three days every week.

(q)        when a prisoner makes a complaint of a medical nature, arrangements are made with the medical orderly for that person to be taken to see the doctor at the very earliest opportunity.  If the compliant is of a serious nature and a doctor is not on duty at the time or cannot be located, the prisoner is immediately dispatched to the Spanish Town General Hospital, which is located in the vicinity of the prison.

65.     Based upon these submissions, the State denies that conditions at St. Catherine District Prison are poor, that there are no adequate complaint mechanisms, or that there is no medical or other care provided to prisoners.

66.     In its observations of December 15, 2000, the State emphasized that the general reports upon which the Petitioners rely were conducted between 1983 and 1993, while in the view of the State the affidavits presented on its behalf were prepared in 1998 and reflect a more accurate description of the conditions at St. Catherine District Prison.

67.     The State also indicated that it conducted its investigations into the conditions that Mr. Aitken has complained of and that the “reports received lead us to conclude that the conditions of the prison as they are described in the Ministry’s last communication apply equally to the applicant.”

68.     Further, the State argues that even if the Petitioners’ allegations are proven to be true, they could not by themselves result in the commutation of Mr. Aitken’s death sentence.  The State relies in this regard on the decision of the Judicial Committee of the Privy Council in the Thomas and Hilaire Case in which the applicants alleged that they had been detained in cramped and foul smelling cells and deprived of exercise or access to the open air for long periods of time.  According to the State, the Judicial Committee of the Privy Council held in this case that even if the conditions of detention alleged by those applicants constituted cruel and unusual treatment or punishment, commutation of sentence would not be the appropriate remedy.

69.     Also on the issue of prison conditions, the State relies upon the decision of the Jamaican Court of Appeal in the Patrick Taylor et al. Case in which the applicant is said to have alleged the following conditions of detention: when he was first arrested he was assaulted; when he was re-arrested he remained in handcuffs for three days; he was beaten while in lock up; while awaiting trial he shared a cell with 25 other men; there was no light in his cell and his exercise each day was limited to 42 minutes; although he was supplied with soap and toilet tissue, neither toothbrush nor toothpaste was provided for use; he was given food and drink in plastic bags; and the food consisted of very small rations and was poorly cooked.

          70.     According to the State, the Jamaican Court of Appeal held that Mr. Taylor's conditions did not amount to torture, or to inhuman or degrading punishment or other treatment and therefore that the prison conditions as alleged did not present any matter for argument to secure a commutation of death sentence.

          71.     The State similarly relies upon the views of the UN Human Rights Committee in the case F. Deidrick v. Jamaica, [17] in which the Committee is said to have determined that the conditions of detention alleged by the complainant did not raise an issue under Article 7 or 10(1) of the International Covenant on Civil and Political Rights and were therefore inadmissible.  According to the State, the conditions of detention alleged by the applicant in that case included the fact that he was held on death row for 8 years, confined to his cell for 22 hours per day, spent most of his waking hours isolated from other people with nothing whatsoever to keep him occupied, and was forced to spend much of his time in enforced darkness.  As some of Mr. Aitken’s allegation as to his conditions of detention are similar to those in the Deidrick Case, the State denies that the Petitioners’ claims constitute a breach of Article 5 of the Convention or of the UN Minimum Standard Rules for the Treatment of Prisoners.

72.     With respect to the Petitioners' contentions regarding the method of execution in Jamaica, the State argues that Article 5 of the Convention must be read subject to Article 4, which provides for the imposition of the death penalty.  In light of the presence of these two provisions, the State contends that the Convention by providing in one article for the imposition of the death penalty cannot at the same time condemn its implementation by reference to another provision.

73.     The State also argues that the Petitioners have failed to identify an acceptable form of execution that would not be considered to conflict with Article 5 of the Convention.  On this basis, the State denies that the carrying out of the death penalty by hanging conflicts or breaches the provisions of Article 5 of the Convention. [18]

(d)      Articles 8 – Inadequate Legal Representation

74.     In respect of the Petitioners’ allegations regarding the adequacy of Mr. Aitken’s legal representation during his trial, the State denies that there has been a breach of Article 8(2)(e) of the Convention based upon the quality of Mr. Aitken’s legal representation.  In making this argument, the State relies on the jurisprudence of the UN Human Rights Committee in the case of D. Taylor v. Jamaica, in which, according to the State the Committee held that a state cannot be held responsible for any alleged deficiencies in the defense of the accused or alleged errors committed by the defense lawyer, unless it was manifest to the trial judge that the lawyer’s behavior was not compatible with the interests of justice.

(e)      Articles 24 and 25 – Denial of Access to Court

75.     The State argues that Article 24 and 25 of the Convention dealing with the right to equal protection and the right to judicial protection do not place an obligation on State Parties to provide legal aid for Constitutional Motions.  Rather, the State argues that Article 8(2)(e) of the Convention only places an obligation on State Parties to provide legal aid for criminal proceedings, and as a Constitutional Motion is not a criminal proceeding, the State denies that there has been a breach of the Convention.

76.     The State also observes that by virtue of section 3 of the Poor Prisoners’ Defense Act, a Resident Magistrate or a Judge of the Supreme Court is obliged to grant an accused who is financially unable to retain counsel a legal aid certificate which entitles him to free legal aid in the preparation and conduct of his defense. [19]  

IV.      ANALYSIS

A.      Competence of the Commission

77.     The State deposited its instrument of accession to the American Convention on August 7, 1978. [20] The Petitioners allege that the State has violated Articles 4, 5, 8, 24 and 25 of the American Convention, in respect of acts or omissions that transpired after the State's accession to the Convention.  Mr. Aitken is a natural person, and the Petitioners were authorized under Article 44 of the Convention to lodge a petition on his behalf with the Commission.  The Commission therefore finds that it is competent to consider Mr. Aitken’s complaint.

B.       Admissibility

78.     As indicated in Part III.A.2, the Commission has not previously determined the admissibility of the complaints in Mr. Aitken’s petition.  Rather, in light of the exceptional circumstances of this matter as a death penalty case and the fact that the parties have had numerous opportunities to present observations on the admissibility and merits of the Petitioners’ claims, and consistent with its past practice in petitions of this nature, [21] the Commission decided to consider the admissibility of the Petitioners’ claims together with the merits.

1.       Duplication

79.     According to Articles 46(1)(c) and 47(d) of the Convention and Article 33 of the Commission’s Rules of Procedure, the admissibility of a petition is subject to the requirement that the subject of the petition is not pending in another international proceeding for settlement and is not substantially the same as one previously studied by the Commission or by another international organization.  The Petitioners in Mr. Aitken’s case have indicated that the subject of their complaint has not been submitted for examination by any other procedure of international investigation or settlement.  The State has not contested the issue of duplication.  The Commission therefore finds no bar to consideration of this case under Articles 46 (1)(c) or 47(d) of the Convention.

2.       Exhaustion of Domestic Remedies

          80.     Article 46(1)(a) of the Convention and Article 31(1) of the Commission’s Rules of Procedure specify that, in order for a case to be admitted, remedies of the domestic legal system must have been pursued and exhausted in accordance with generally accepted principles of international law.

          81.     Exhaustion of domestic remedies need not be demonstrated by a victim, however, in the event that the State against which the complaint is lodged waives this requirement.  In this regard, the Inter-American Court of Human Rights has held that the rule which requires the prior exhaustion of domestic remedies is designed for the benefit of the State, because the rule seeks to excuse the State from having to respond to charges before an international body for acts imputed to it before it has had an opportunity to remedy them by internal means.  According to the Court, the requirement is thus considered a means of defense and, as such, waivable, even tacitly.  Further, a waiver, once effected, is irrevocable. [22]

          82.     Given the absence of any observations from the State on the issue of exhaustion of domestic remedies in this case, the Commission finds that the State implicitly or tacitly waived any challenge with regard to the exhaustion of remedies by Mr. Aitken in domestic proceedings.  The Commission therefore does not consider the present case to be inadmissible by reason of Article 46(1)(a) of the Convention or Article 31 of its Rules of Procedure.

3.       Timeliness of the Petition

83.     Article 46(1)(b) of the Convention and Article 32 of the Commission’s Rules of Procedure provide that the admission of a petition is subject to the requirement that the petition be lodged with the Commission in a timely manner, namely within a period of six months from the date on which the party alleging violations of his rights was notified of the decision that exhausted domestic remedies.

84.     The record before the Commission indicates that the Judicial Committee of the Privy Council dismissed Mr. Aitken’s petition for Special Leave to Appeal on March 6, 2000 and that the Petitioners lodged the present petition with the Commission on April 28, 2000 and therefore within 6 months from the date of final judgment.  The State has not contested the issue of timeliness.  Accordingly, the Commission finds no bar to consideration of this case by reason of Article 46(1)(b) of the Convention or Article 32 of its Rules of Procedure.

          4.       Colorable Claim

85.     Article 47(b) of the Convention and Article 34(a) of the Commission’s Rules of Procedure require a petition to be declared inadmissible if it does not state facts that tend to establish a violation of the rights guaranteed by the Convention or other applicable instruments.  Article 47(d) of the Convention and Article 34(b) of the Commission’s Rules of Procedure deem inadmissible any communication where the statements of the petitioner or the State indicate that the petition is manifestly groundless or out of order.

86.     The Petitioners in the present case have alleged that the State has violated Mr. Aitken’s rights under Articles 4, 5, 8, 24 and 25 of the Convention.  In addition, the Petitioners have provided factual allegations, described in Part III.A.1 of this Report, that, in the Commission’s view, tend to establish that these alleged violations may be well-founded.

87.     The Commission therefore finds that the Petitioners have presented colorable claims of violations of Mr. Aitken’s rights under the Convention for the purposes of Articles 47(b) and 47(c) of the Convention and Articles 34(a) and (b) of the Commission’s Rules of Procedure.

          5.       Conclusions on Admissibility

88.     In accordance with the foregoing analysis of the requirements of Articles 46 and 47 of the Convention and Articles 31 to 34 of the Commission’s Rules of Procedure, and without prejudging the merits of the matter, the Commission decides to declare as admissible the claims presented on behalf of Denton Aitken in respect of Articles 4, 5, 8, 24 and 25 of the Convention.

          C.      The Merits

89.     As detailed in Part III.A.1 of this Report, the Petitioners in the present case have alleged the following violations of the Convention in respect of Mr. Aitken:

(a)       violations of Articles 4(1), 4(2), 5(1) and 5(2) of the Convention, relating to the mandatory nature of the death penalty imposed upon Mr. Aitken;

(b)         a violation of Article 4(6) of the Convention, relating to the process available to Mr. Aitken to seek amnesty, pardon or commutation of sentence in Jamaica;

(c)         violations of Article 5(1) and (2) of the Convention, relating to Mr. Aitken’s conditions of detention and the method of execution in Jamaica;

(d)                 violations of Articles 8(2)(c), 8(2)(e) and 4(2) of the Convention, relating to the adequacy of Mr. Aitken’s legal representation at trial;

(e)                 violations of Articles 24 and 25 of the Convention relating to Mr. Aitken’s inability to pursue a Constitutional Motion before the courts in Jamaica.

1.       Standard of Review

90.     In response to the various standards that the parties have suggested should guide the Commission in determining the issues before it, the Commission wishes to clarify that it will undertake its review of the merits of the Petitioners' claims in accordance with the Commission's heightened scrutiny test.  According to this standard of review, the Commission will subject the parties' allegations to an enhanced level of scrutiny in order to ensure that any deprivation of life effected by a State Party pursuant to a death sentence complies strictly with the provisions of the Convention, including in particular Articles 4, 5 and 8 of the Convention. [23] This heightened scrutiny test is, as the Commission has previously recognized, consistent with the restrictive approach to the death penalty provisions of human rights treaties taken by the Commission and other international authorities. [24]

91.     The Commission also wishes to note that its application of a heightened level of scrutiny in capital cases is not precluded by the Commission's fourth instance formula. According to this formula, the Commission in principle will not review the judgments issued by the domestic courts acting within their competence and with due judicial guarantees, unless a petitioner’s allegations entail a possible violation of any of the rights set forth in the Convention. [25] As the Petitioners’ allegations entail independent violations of Articles 4, 5, 8, 24 and 25 of the American Convention, the fourth instance formula has no application in the present matter.

2.       Articles 4, 5 and 8 of the Convention  - The Mandatory Nature of the Death Penalty

(a)      Mr. Aitken has been Sentenced to a Mandatory Death Penalty

          92.     The record in the present case indicates that Mr. Aitken was convicted of capital murder in Jamaica and sentenced to death.  It also indicates that the death sentence was imposed pursuant to legislation in Jamaica that prescribes the death penalty as the only punishment available when a defendant is found guilty of capital murder.

          93.     More particularly, as indicated in Part I of this Report and confirmed by the State in its observations, Mr. Aitken was convicted of the crime of capital murder under Jamaica's Offences Against the Person Act, as amended by the Offences Against the Person (Amendment) Act, 1992. [26]  Section 2(1)(d)(i) of this Act defines capital murder as including the following:

2.(1) Subject to subsection (2), murder committed in the following circumstances is capital murder, that is to say-

[. . .]

(d) any murder committed by a person in the course or furtherance of-

(i) robbery;

          94.     Section 3(1) of the Act in turn prescribes the death penalty as the mandatory punishment for any person convicted of a capital offence as defined under Section 2 the Act:

2(1) Every person who is convicted of capital murder shall be sentenced to death and upon every such conviction the court shall pronounce sentence of death, and the same may be carried into execution as heretofore has been the practice; and every person so convicted or sentenced pursuant to subsection (1A), shall, after sentence, be confined in some safe place within the prison, apart from all other prisoners.

Where by virtue of this section a person is sentenced to death, the form of the sentence shall be to the effect only that he is to "suffer death in the manner authorized by law." [27]

          95.     The Act therefore prescribes death as the mandatory punishment for all individuals convicted of capital murder.  Capital murder in turn includes murder committed in the course or furtherance of certain other offences, including robbery, burglary, housebreaking, and arson in relation to a dwelling house.  Accordingly, once the jury found Mr. Aitken guilty of capital murder, the death penalty was the only available punishment. The Commission notes that the State has not denied the mandatory nature of Mr. Aitken’s punishment, but rather argues that the exercise of the Prerogative of Mercy is sufficient to take into account the individual circumstances of Mr. Aitken’s case.

          96.     Therefore, as the Commission has determined in previous cases, [28] the crimes of capital murder in Jamaica can be regarded as being subject to a “mandatory death penalty,” namely a death sentence that the law compels the sentencing authority to impose based solely upon the category of crime for which the defendant is found responsible.  Once a defendant is found guilty of the crime of capital murder, the death penalty must be imposed.  Accordingly, mitigating circumstances cannot be taken into account by a court in sentencing an individual to death once a conviction for capital murder has been rendered.  There is, however, an exception. Section 3(2) of the Act specifically exempts from the death penalty female offenders who are convicted of offenses punishable with death, but who are found by a jury to be pregnant. [29]

          97.     Therefore, the penalty for a female offender who is convicted of capital murder, but who is found by a jury to be pregnant, is a sentence of imprisonment with or without hard labor for life rather than a sentence of death.

          98.     As indicated in Part III.A.3.a, the Petitioners have alleged that Mr. Aitken’s sentencing to a mandatory death penalty violates one or more of Articles 4(1), 4(2), and 5(2) of the American Convention, principally because the sentencing process in Jamaica does not provide an opportunity for offenders to present mitigating factors concerning their personal circumstances or those of their offense in determining whether the death penalty is an appropriate punishment.

(b)      Mr. Aitken’s Mandatory Death Sentence under Articles 4, 5 and 8 of the Convention

99.     In previous cases involving the application of capital punishment under the Offenses Against the Person Act in Jamaica, the Commission has evaluated the mandatory nature of the death penalty under that legislation in light of Article 4 (right to life), Article 5 (right to humane treatment) and Article 8 (right to a fair trial) of the Convention and the principles underlying those provisions.  It has also considered the mandatory death penalty in light of pertinent authorities in other international and domestic jurisdictions, to the extent that those authorities may inform the appropriate standards to be applied under the American Convention. Based upon these considerations and analysis, the Commission has reached the following conclusions.

100.   The Commission has found that the supervisory bodies of international human rights instruments have subjected the death penalty provisions of their governing instruments to a rule of restrictive interpretation, to ensure that the law strictly controls and limits the circumstances in which a person may be deprived of his life by authorities of the state.  This includes strict compliance with standards of due process. [30]

101.   In addition, the Commission has identified a general recognition by domestic and international authorities that the death penalty is a form of punishment that differs in substance as well as in degree in comparison with other means of punishment.  It is the absolute form of punishment that results in the forfeiture of the most valuable of rights, the right to life and, once implemented, is irrevocable and irreparable.  The Commission has accordingly determined that the fact that the death penalty is an exceptional form of punishment must also be considered in interpreting Article 4 of the American Convention. [31]

102.   Finally, the Commission has noted and relied upon the determination by the Inter-American Court of Human Rights in its Advisory Opinion OC-3/83 that under the terms of Article 4 of the Convention, “certain considerations involving the person of the defendant, which may bar the imposition or application of the death penalty, must be taken into account” by States Parties that have not abolished the death penalty. [32]

103.   In the context of these interpretive rules and principles, the Commission has evaluated mandatory death penalty legislation under Articles 4, 5 and 8 of the Convention and has concluded that imposing the death penalty through mandatory sentencing, as Jamaica has done in respect of crime of capital murder, is not consistent with the terms of Articles 4(1), 5(1), 5(2), 8(1) and 8(2) of the Convention and the principles underlying those provisions. [33] The Commission observes in this regard that subsequent to its determination that the mandatory death penalty was inconsistent with the rights protected in the inter-American system, other international and regional tribunals have reached similar conclusions.  A majority the UN Human Rights Committee, for example, has found the implementation of a death sentenced based upon a mandatory sentencing law to violate the right not to be arbitrarily deprived of one’s life under Article 6(1) of the International Covenant on Civil and Political Rights. [34] In addition, a majority of the Eastern Caribbean Court of Appeal has found the mandatory death penalty in Saint Vincent and Saint Lucia to constitute inhuman or degrading punishment or other treatment contrary to the constitutions of those states. [35]

104.   The Commission has determined that imposing the death penalty in a manner that conforms with Articles 4, 5 and 8 of the Convention requires an effective mechanism by which a defendant may present representations and evidence to the sentencing court as to whether the death penalty is a permissible or appropriate form of punishment in the circumstances of his case.  In the Commission’s view, this includes, but is not limited to, representations and evidence as to whether any of the factors incorporated in Article 4 of the Convention may prohibit the imposition of the death penalty. [36]

105.   In reaching this conclusion, the Commission has identified a principle common to those democratic jurisdictions that have retained the death penalty, according to which the death penalty should only be implemented through “individualized” sentencing. [37]   Through this mechanism, the defendant is entitled to present submissions and evidence in respect of all potentially mitigating circumstances relating to his or her person or offense, and the court imposing sentence is afforded discretion to consider these factors in determining whether the death penalty is a permissible or appropriate punishment.  Mitigating factors may relate to the gravity of the particular offense or the degree of culpability of the particular offender, and may include such factors as the offender’s character and record, subjective factors that might have motivated his or her conduct, the design and manner of execution of the particular offense, and the possibility of reform and social readaptation of the offender.

106.   The Commission has also previously observed that Jamaica has already considered it appropriate to prescribe in its legislation a mechanism by which a jury may determine whether an individual female offender should be spared the death penalty because she is pregnant.  The Commission has therefore considered that the foundation already exists under Jamaican law to extend this mechanism, or to develop a comparable mechanism, to permit a jury to consider other potentially mitigating factors pertaining to an offender in determining whether the death penalty should be imposed in the circumstances of the offender's case. [38]

107.   Applying these findings in the context of the case presently before it, the Commission has confirmed that Mr. Aitken was convicted of the offense of capital murder under Jamaica's Offences Against the Person Act.  Once an offender is found guilty of capital murder under that Act, section  3(1) of the Act requires a court to impose the death penalty.  With the exception of the provisions in sections 3(2) to 3(6) of the Act governing pregnant offenders, no provisions in the Act have been identified that permit a judge or jury to consider the personal circumstances of an offender or his or her offense, such as the offender’s record or character, the subjective factors that may have motivated his or her conduct, or the offender’s likelihood of reform or social readaptation, in determining whether the death penalty is an appropriate penalty for a particular offender in the circumstances of his or her case.  Upon satisfying the elements of section 3(1) of the Act, death is the automatic penalty.

108.   Consequently, the Commission concludes that once Mr. Aitken was found guilty of his crimes, the law in Jamaica did not permit a hearing by the courts as to whether the death penalty was a permissible or appropriate penalty.  There was no opportunity for the trial judge or the jury to consider such factors as Mr. Aitken’s character or record, the nature or gravity of Mr. Aitken’s crime, or the subjective factors that may have motivated his conduct, in determining whether the death penalty was an appropriate punishment.  Mr. Aitken was likewise precluded from making representations on these matters, as a consequence of which there is no information on the record as to potential mitigating factors that might have been presented to the trial court in Mr. Aitken’s circumstances.  The court sentenced Mr. Aitken based solely upon the category of crime for which he had been found responsible.

109.   In this context, and in light of the Commission's prior analysis of mandatory death penalties under the Convention, the Commission concludes that the State violated Mr. Aitken’s rights under Articles 4(1), 5(1), 5(2), and 8(1) of the Convention, in conjunction with violations of Articles 1(1) and 2 of the Convention, by sentencing him to a mandatory death penalty.

110.   With respect to Article 4(1) of the Convention, the Commission concludes that the trial court was compelled under the State’s legislation to imposed a death sentence upon Mr. Aitken, with no discretion to consider Mr. Aitken’s personal characteristics and the particular circumstances of his offenses to determine whether death was an appropriate punishment.  Likewise, Mr. Aitken was not provided with an opportunity to present representations and evidence as to whether the death penalty was an appropriate punishment in the circumstances of his case.  Rather, the death penalty was imposed upon Mr. Aitken automatically and without principled distinction or rationalization as to whether it was an appropriate form of punishment in the particular circumstances of his case. Moreover, the propriety of the sentence imposed was not susceptible to any effective form of judicial review, and Mr. Aitken’s execution and death at the hands of the State are imminent, his conviction having been upheld on appeal to the highest court in Jamaica.  The Commission therefore concludes that the State has by this conduct violated Mr. Aitken’s right under Article 4(1) of the Convention not to be arbitrarily deprived of his life. [39]

111.   The Commission further concludes that the State, by sentencing Mr. Aitken to a mandatory penalty of death absent consideration of his individual circumstances, has failed to respect Mr. Aitken’s physical, mental and moral integrity contrary to Article 5(1) of the Convention, and has subjected him to cruel, inhuman, or degrading punishment or treatment in violation of Article 5(2).  The State sentenced Mr. Aitken to death solely because he was convicted of a predetermined category of crime.  Accordingly, the process to which Mr. Aitken has been subjected would deprive him of his most fundamental right, his right to life, without considering his personal circumstances and the particular circumstances of his offense.  Not only does this treatment fail to recognize and respect Mr. Aitken’s integrity as