Articles 4 and 5 of
the Convention – Conditions of Detention/Method of Execution
The Petitioners have alleged that the conditions in which Mr.
Sewell has been detained by the State constitute a violation of his
rights under Article 5(1) of the Convention to have his physical, mental
and moral integrity respected, as well as his right under Article 5(2)
of the Convention not to be subjected to cruel, unusual or degrading
punishment or treatment.
As described in Part III(A)(3)(c) of this Report, the Petitioners
have made numerous allegations respecting Mr. Sewell’s conditions of
detention on death row, based in part upon an affidavit sworn by Mr.
Sewell on February 6, 2001. The
Petitioners claim further that their allegations are corroborated by
more general sources of information concerning prison conditions in
Jamaica. These include an
April 1993 report prepared by Americas Watch in respect of the death
penalty, prison conditions and prison violence in Jamaica, and a
December 1993 report by Amnesty International proposing an inquiry into
death and ill-treatment of prisoners in St. Catherine's District Prison.
105. The State has contended that notwithstanding the content of these reports, a generalized position should not be adopted every time a complaint is lodged with the Commission, but rather each complaint must be considered individually.
Moreover, the State has provided a significantly different
version of conditions of detention on death row in St. Catherine's
District Prison, by reference to affidavits sworn in November 1998
respecting the conditions of detention of another death row inmate,
Neville Lewis. Based upon
these affidavits, the State disputes Mr. Sewell’s characterization of
his conditions of detention. The
State contends, for example, that death row inmates are provided with
foam mattresses, that they are permitted to place light bulbs inside of
their cells, that the ventilation in the cells is very good, and that
the prisoners clean their cells every day under the supervision of a
The State also contends that a senior officer at the prison is
charged with communicating with prisoners on a daily basis to take note
of any complaints, that complaints made by prisoners are dealt with
promptly, and that on some occasions the Superintendent will hear a
prisoner's complaint and take appropriate actions to remedy it.
Concerning medical conditions, the State contends that St.
Catherine District Prison houses a medical center that is staffed by two
registered medical practitioners, a general practitioner and a
psychiatrist, and that the general practitioner attends at the medical
center daily and when he is not on duty he is on call. The Commission notes, however, that the State has not
provided any information pertaining specifically to Mr. Sewell’s
treatment or conditions of detention.
108. Based upon the record before it, the Commission is faced with contradictory versions of Mr. Sewell’s conditions of detention. The Commission must therefore determine which characterization of Mr. Sewell’s detention conditions is more reliable and therefore should be accepted as accurate. The Commission observes in this regard that the Petitioners have provided the Commission with specific details concerning Mr. Sewell’s personal situation in detention both before and following his two convictions, and have supported those details through evidence from Mr. Sewell. In response the State has submitted general affidavit evidence that does not specifically address Mr. Sewell’s situation, but rather provides details concerning the general and specific circumstances of another death row inmate, Neville Lewis and does not address the issue of pre-trial conditions of detention, generally or in Mr. Sewell’s case.
While it appears that Mr. Sewell is detained in the same facility
as Mr. Lewis during a portion of his incarceration, the Commission
should, as the State itself has pointed out, avoid taking a generalized
approach when it comes to the issue of prison conditions in the context
of individual cases. Rather,
the Commission should endeavor to determine each complaint on its
individual circumstances. In
the present case, the State has not provided any evidence specifically
rebutting or otherwise addressing Mr. Sewell’s treatment during his
pre-trial or post-conviction detention.
Rather, the State has provided information concerning the general
and specific death row conditions of another inmate, without specific
evidence relating to the alleged victim’s situation.
Weighing this information on the record, and in the absence of
contradictory evidence from the State relating specifically to Mr.
Sewell’s treatment, the Commission accepts as established the
Petitioners' allegations with respect to Mr. Sewell’s post-conviction
conditions of detention. According
to Mr. Sewell, prior to his trial and re-trial, he was held for a total
of 3 years and 6 months in crowded cells with no basic or proper bedding
or furniture and poor ventilation.
The conditions of the facility were unhygienic, the food was
meager and substandard, and Mr. Sewell was not afforded any
opportunities to exercise.
Also according to Mr. Sewell, during the 1 year and 9 months
between his first appeal and second trial, and since his second
conviction on April 6, 1998, his conditions of detention included the
(a) he has been locked in a cell on death row at St. Catherine District Prison in solitary confinement for 23 ½ hours per day;
he has been deprived of a mattress and sleeps on a concrete bunk;
(c) he has no furniture except for a water jug and a bucket that he must use as a toilet and for all other sanitary purposes and that he is only permitted to empty once a day;
his cell has inadequate ventilation and is therefore hot and
(e) the standards of health and hygiene on death row are poor, including a gutter of stagnant waste water in front of his cell that is always full;
(f) the food provided to him is inadequate and he is often ill after eating it. Despite numerous requests, he has not had access to a doctor or dentist since his conviction in October 1997;
he is provided with inadequate food;
he does not have access to an adequate mechanism for dealing with
Mr. Sewell’s characterization of his conditions of detention is
corroborated by more general sources of information provided by the
Petitioners concerning prison conditions in Jamaica.
These include an April 1993 report prepared by Americas Watch in
respect of the death penalty, prison conditions and prison violence in
Jamaica, and a December 1993 report by Amnesty International proposing
an inquiry into death and ill-treatment of prisoners in St. Catherine's
District Prison. The
reports provide information regarding such matters as the ill-treatment
of prisoners by warders and the absence of effective complaint
mechanisms concerning conditions and treatment in detention facilities
in Jamaica. In the 1993
Americas Watch Report, for example, the following observations are made
in respect of conditions of detention in Jamaica:
reports by Americas Watch have found the prisons squalid:
"overcrowded, filthy and unsanitary cells, insect infestation,
inadequate or no light in cells, insufficient ventilation…". A
Jamaican cabinet task force of 1989 was "shocked at the appalling
there is no substantial improvement to report.
The equivalent of about fifty cents a day is budgeted for food
for each inmate. St.
Catherine's District Prison, which houses 1300 inmates in a space built
for 800, has had prison riots between 1990 and 1992 arising out of
conditions there. The
sanitary conditions, due to inadequate plumbing and garbage disposal,
are dreadful. The
conditions at the General Penitentiary are substantially similar.
Recent studies have reiterated the findings of earlier studies
that the situation has not improved.
The Commission must next determine whether Mr. Sewell’s
conditions of detention, as determined by the Commission, are
inconsistent with Articles 5(1) or 5(2) of the Convention.
After carefully considering the information available, the
Commission has found that Mr. Sewell’s detention conditions, when
considered in light of the period of nearly 5 years that he spent on
remand or in death row in the trial process, fail to satisfy the
standards of humane treatment under Articles 5(1) and 5(2) of the
114. In reaching this conclusion, the Commission has evaluated Mr. Sewell’s conditions in light of previous decisions of this Commission and by the Inter-American Court of Human Rights, in which similar conditions of detention were found to violate Article 5 of the Convention.  As in these previous cases, the record in the present case indicates that Mr. Sewell has been held in overcrowded conditions on remand and in solitary confinement on death row. The cells have had inadequate hygiene and ventilation, and Mr. Sewell has been allowed out of his cell infrequently. These observations, together with the length of time over which Mr. Sewell has been held in detention, indicate that Mr. Sewell’s treatment has failed to meet the minimum standards under Articles 5(1) and 5(2) of the Convention. As the Commission has observed in previous cases, these standards apply irrespective of the nature of the conduct for which the person in question has been imprisoned  and regardless of the level of development of a particular State Party to the Convention. 
115. A comparison of Mr. Sewell‘s prison conditions with international standards for the treatment of prisoners also suggests that his treatment has failed to respect minimum requirements of humane treatment. In particular, Rules 10, 11, 12, 15, and 21 of the United Nations Standard Minimum Rules for the Treatment of Prisoners,  which in the Commission's view provide reliable benchmarks as to minimal international standards for the humane treatment of prisoners, prescribe for the following basic standards in respect of accommodation, hygiene, medical treatment and exercise:
10. All accommodation provided for the use of prisoners and in particular
all sleeping arrangements shall meet all requirements of health, due
regard being paid to climactic conditions and particularly to cubic
content of air, minimum floor space, lighting, heating and ventilation.
11. In all places where prisoners are required to live or work,
(a) the windows shall be large enough to enable
the prisoners to read or work by natural light, and shall be so
constructed that they can allow the entrance of fresh air whether or not
there is artificial ventilation;
(b) Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight.
12. The sanitary installations shall be adequate to enable every prisoner
to comply with the needs of nature when necessary and in a clean and
15. Prisoners shall be required to keep their persons clean, and to this
end they shall be provided with water and with such toilet articles as
are necessary for health and cleanliness.
21(1) Every prisoner who is not employed in outdoor work shall have at
least one hour of suitable exercise in the open air daily if the weather
(2) Young prisoners, and others of suitable age and physique, shall
receive physical and recreational training during the period of
exercise. To this end
space, installations and equipment should be provided.
116. It is evident based upon the Petitioners' allegations that the State has failed to satisfy these minimum standards of proper treatment of prisoners. The cumulative impact of such conditions, together with the length of time for which Mr. Sewell has been incarcerated in connection with his criminal proceedings, cannot be considered consistent with the right to humane treatment under Article 5 of the Convention. 
117. Consequently, the Commission finds that the conditions of detention to which Mr. Sewell has been subjected fail to respect the physical, mental and moral integrity of the victims as required under Article 5(1) of the Convention, and, in all of the circumstances, constitute cruel, inhuman or degrading treatment or punishment contrary to Article 5(2) of the Convention. The Commission therefore finds the State responsible for violations of these provisions of the Convention in respect of these victims, in conjunction with the State‘s obligations under Article 1(1) of the Convention.
The Petitioners have also contended that execution by hanging
constitutes cruel, unusual or degrading punishment or treatment contrary
to Article 5(2) of the Convention and claim that hanging is therefore
inconsistent with the requirements under Article 4(2) of the Convention
governing the implementation of capital punishment.
Given its conclusions in Part IV(C)(2) of this Report that Mr.
Sewell’s death sentence contravenes Articles 4, 5 and 8 of the
Convention so as to render any subsequent execution unlawful, the
Commission does not consider it necessary to determine for the purpose
of this complaint whether the method of execution employed in Jamaica
constitutes cruel, inhuman or degrading punishment or treatment contrary
to Article 5(2) of the Convention.
The Commission nevertheless reserves its competence to determine
in an appropriate case in the future whether hanging is a particularly
cruel, inhuman or degrading punishment or treatment in comparison with
other methods of execution.
Articles 7(5) and 8(1)
of the Convention - Right to Trial within a Reasonable Time
119. The Petitioners have alleged that the State failed to try Mr. Sewell within a reasonable time contrary to Articles 7(5) and 8(1) of the Convention. In this regard, the Petitioners refer specifically to the 4 year and 9 month delay between his initial arrest in August 1993 and his second conviction in April 1998. According to the evidence before the Commission, this, together with the 2 year and 2 month delay between his second conviction and the dismissal of his petition to the Judicial Committee of the Privy Council in July 2000, has resulted in a total delay of 6 years and 11 months in Mr. Sewell’s criminal proceedings.
120. In its observations of February 2, 2001, the State did not dispute the period of delay alleged by the Petitioners, but rather indicated that it “undertakes to immediately investigate the facts surrounding the applicant’s trial and submit the results thereof to the Commission as soon as they are complete.” As of the date of this report, no further information has been received by the Commission from the State concerning the issue of the delay in Mr. Sewell’s criminal proceedings.
121. The State responded to the allegations relating to the delay in trying the victims in these cases by recognizing that the delays had been "longer than desirable". It suggested, however, that the delays were justified due to the fact that preliminary inquiries had been held in each case, and owing to the complexities of the issues in the cases.
122. In addressing the issue of a “reasonable time” under Articles 7(5) and 8(1) of the Convention, the Inter-American Court has confirmed that the purpose of the reasonable time requirement is to prevent accused persons from remaining in that situation for a protracted period and to ensure that a charge is promptly disposed of.  The Inter-American Court has also considered that the point from which a reasonable time is to be calculated is the first act of the criminal proceedings, such as the arrest of the defendant, and that the proceeding is at an end when a final and firm judgment is delivered and the jurisdiction thereby ceases. According to the Inter-American Court, the calculation of a reasonable time must, particularly in criminal matters, encompass the entire proceeding, including any appeals that may be filed. 
123. In determining the reasonableness of the time in which a proceeding must take place, the Inter-American Court has shared the view of the European Court of Human Rights that three points must be taken into account: (a) the complexity of the case; (b) the procedural activity of the Interested party; and (c) the conduct of the judicial authorities.  This Commission has likewise suggested that the reasonableness of a pre-trial delay should not be viewed exclusively from a theoretical point of view, but must be evaluated on a case by case basis. 
In addition to its case by case analysis of the reasonableness of
the pre-trial delay, the Inter-American Commission has established that
the burden of proof is on the state to present evidence justifying any
prolongation of a delay in trying a defendant.
In assessing what is a reasonable time period, the Commission, in
cases of prima facie
unacceptable duration, has placed the burden of proof on the State to
adduce specific reasons for the delay.
In such cases, the Commission will subject these reasons to the
Commission’s “closest scrutiny.”
In the present case, Mr. Sewell was subjected to a total delay of
6 years and 11 months between his arrest and his final appeal, nearly 5
years of which occurred prior to his final conviction.
In light of the past jurisprudence of this Commission and other
international authorities, the Commission is of the view that the delay
in this case is prima facie unreasonable and calls for justification by the State.
In addition, while the record indicates that a portion of this
delay is attributable to the fact that Mr. Sewell was tried twice for
his crime, the Commission considers that responsibility for the
resulting delay should not fall upon Mr. Sewell.
Rather, as the need for a further trial resulted from errors
attributable to the State in Mr. Sewell’s first trial, the State
should bear responsibility for the delay occasioned by the need for a
In addition, upon having reviewed the records in these cases, the
Commission is not satisfied, based upon the materials available, that
the delay is adequately explained based upon the nature of the
prosecutions. As the
Petitioners point out, Mr. Sewell’s conviction was based principally
upon the evidence of one eye witness, David Morris, who claimed to have
been present at the scene of the crime.
The State has failed to point to any particular aspect of the
case that would explain why over five years was required to properly try
Mr. Sewell for his crime. There
is also no evidence of procedural activity on the part of the alleged
victim that would adequately explain or justify the delay.
After considering the information before the Commission in this
case in light of pertinent jurisprudence as outlined above, the
Commission concludes that the delay in trying Mr. Sewell was
unreasonable contrary to Articles 7(5) and 8(1) of the Convention, and
therefore that the State is responsible for violations of Mr. Sewell’s
rights under these provisions.
5. Articles 8, 24 and 25 of the
Convention – Denial of Access to Constitutional Motions
The Petitioners argue that Mr. Sewell has been denied recourse to
domestic protection against acts that violate his fundamental rights
contrary to Articles 24 and Article 25 of the Convention because he does
not have the financial means to pursue a Constitutional Motion before
the Jamaican Supreme Court in respect of violations of his rights under
the Constitution of Jamaica, and legal aid is not effectively available
for Constitutional Motions before the courts in Jamaica. Articles 24 and 25 of the Convention provide as follows:
24 All persons are equal before the law. Consequently, they are entitled, without discrimination, to
equal protection of the law.
25(1) Everyone has the right to simple and prompt recourse, or any
other effective recourse, to a competent court or tribunal for
protection against acts that violate his fundamental rights recognized
by the constitution or laws of the state concerned or by this
Convention, even though such violation may have been committed by
persons acting in the course of their official duties.
The States Parties undertake:
(a) To ensure that any person claiming such
remedy shall have his rights determined by the competent authority
provided for by the legal system of the state;
To develop the possibilities of judicial remedy; and
(c) To ensure that the competent authorities
shall enforce such remedies when granted.
As noted previously, the Petitioners suggest that the effective
pursuit of Constitutional Motions before the domestic courts in Jamaica
require the assistance of counsel.
The Petitioners also claim that Mr. Sewell is indigent and that
the State does not provide legal aid to pursue Constitutional Motions in
Jamaica. As a consequence,
the Petitioners contend that notwithstanding the legal right that the
Jamaican Constitution confers on Mr. Sewell to pursue a Constitutional
Motion, the remedy is not an effective one in all of the circumstances
of his case.
In its response to this contention, the State argues that
Articles 24 and 25 of the Convention 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
In light of the material before it, the Commission is satisfied
that Constitutional Motions dealing with legal issues of the nature
raised by Mr. Sewell in his proceeding before the Commission, such as
the mandatory nature of his death sentence and his right to due process,
are procedurally and substantively complex and cannot be effectively
raised or presented by a victim in the absence of legal representation.
The Commission also finds, in the absence of evidence to the
contrary, that Mr. Sewell lacks the financial means to bring a
Constitutional Motion on his own, and, based upon the observations of
both the Petitioners and the State, that Jamaica does not provide legal
aid to individuals in Jamaica to bring such motions.
Based upon these submissions and the Commission’s existing
jurisprudence, the Commission considers that the State is subject to an
obligation under the American Convention to provide individuals with
effective access to Constitutional Motions, which may in certain
circumstances require the provision of legal assistance.
In particular, the Commission considers that a Constitutional
Motion in the Supreme Court of Jamaica must, as a proceeding for the
determination of an individual’s rights, conform with the requirements
of a fair hearing in accordance with Article 8(1) of the Convention.
Moreover, in the circumstances of the present case where the
Supreme Court would be called upon to determine Mr. Sewell’s rights in
the context of his trial, conviction and sentencing for a criminal
offense, the Commission considers that the requirements of a fair
hearing mandated by Article 8(1) of the Convention should be interpreted
in a manner consistent with the principles in Article 8(2) of the
Convention, including the right under Article 8(2)(e) to the effective
assistance of counsel.
Accordingly, when a convicted person seeking constitutional
review of the irregularities in a criminal trial lacks the means to
retain legal assistance to pursue a Constitutional Motion and where the
interests of justice so require, legal assistance should be provided by
the State. In the present
case, the effective unavailability of legal aid has denied Mr. Sewell
the opportunity to challenge the circumstances of his criminal
conviction under the Constitution of Jamaica in a fair hearing, and
therefore has contravened his right to a fair hearing under Article
Moreover, Article 25 of the Convention provides individuals with
the right to simple and prompt recourse to a competent court or tribunal
for protection against acts that violate his or her fundamental rights
recognized by the constitution or laws of the State concerned or by the
Convention. The Commission
has stated that the right to recourse under Article 25, when read
together with the obligation under Article 1(1) and the provisions of
Article 8(1), “must be understood as the right of every individual to
go to a tribunal when any of his rights have been violated (whether a
right protected by the Convention, the constitution, or the domestic
laws of the State concerned), to obtain a judicial investigation
conducted by a competent, impartial and independent tribunal that will
establish whether or not a violation has taken place and will set, when
appropriate, adequate compensation.”
addition, the Inter-American Court has held that if legal services are
required either as a matter of law or fact in order for a right
guaranteed by the Convention to be recognized, and a person is unable to
obtain such services because of his indigence, then that person is
exempted from the requirement under the Convention to exhaust domestic
While the Court
rendered this finding in the context of the admissibility provisions of
the Convention, the Commission considers that the Court's comments are
also illuminating in the context of Article 25 of the Convention in the
circumstances of the present cases.
By failing to make legal aid available to Mr. Sewell to pursue a
Constitutional Motion in relation to his criminal proceedings, the State
has effectively barred his recourse to a competent court or tribunal in
Jamaica for protection against acts that potentially violate his
fundamental rights under the Constitution of Jamaica and under the
Convention. As a
consequence, the State has failed to fulfill its obligations under
Article 25 of the Convention in respect of Mr. Sewell.
The Commission likewise concludes that the State has failed to
respect Mr. Sewell’s rights under Article 8(1) of the Convention by
denying him an opportunity to challenge the circumstances of his trial,
conviction and sentencing under the Constitution of Jamaica in a fair
In light of the above conclusions, the Commission does not
consider it necessary to determine whether the State is responsible for
a violation of Article 24 of the Convention in relation to Mr. Sewell’s
denial of recourse to a Constitutional Motion in Jamaica.
PROCEEDINGS SUBSEQUENT TO REPORT 34/02
The Commission examined this case in the course of its 114th
regular session and on February 28, 2002 adopted Report N° 34/02
pursuant to Article 50 of the American Convention.
On March 18, 2002, the Commission transmitted Report N° 34/02 to
the State, and requested that the Government of Jamaica inform the
Commission within two months as to the measures adopted to comply with
the recommendations made to resolve the situation denounced.
139. As of May 18, 2002, the date of expiration of the prescribed two-month period, the Commission had not received a response from the State to Report N° 34/02.
Of pertinence to the issues raised in the present case, on June
21, 2002 the Inter-American Court of Human Rights issued its judgment in
the Case of Hilaire, Constantine and Benjamin et
al. v. Trinidad and Tobago.
In its judgment, the Court found, inter
alia, that the mandatory death penalty under Trinidad and Tobago’s
Offenses Against the Person Act of 1925 violated the victims’ right to
life under Articles 4(1) and 4(2) in conjunction with Article 1(1) of
the Convention, because it “automatically and generically mandates the
application of the death penalty for murder and disregards the fact that
murder may have varying degrees of seriousness,” and “prevents a
judge from considering the basic circumstances in establishing the
degree of culpability and individualizing the sentence since it compels
the indiscriminate imposition of the same punishment for conduct that
can be vastly different.”
The Commission, based on the foregoing considerations of fact and law, and in the absence of a response from the State to Report N° 41/01, ratifies its conclusions that:
141. The Commission is competent to consider the Petitioners’ petition, and the claims in the petition are admissible in respect of Articles 4, 5, 8, 24 and 25 of the American Convention.
142. The State is responsible for violating Articles 4(1), 5(1), 5(2) and 8(1) of the Convention in respect of Mr. Sewell, in conjunction with violations of Articles 1(1) and 2 of the Convention, by sentencing him to a mandatory death penalty.
The State is responsible for violating Articles 5(1) and 5(2) of
the Convention in respect of Mr. Sewell, in conjunction with violations
of Article 1(1) of the Convention, by reason of his treatment and
conditions in detention.
The State is responsible for violating Articles 7(5) and 8(1) of
the Convention, in conjunction with violations of Article 1(1) of the
Convention, by reason of the delay in trying Mr. Sewell.
The State is responsible for violating Articles 8(1) and 25 of
the Convention in respect of Mr. Sewell, in conjunction with violations
of Article 1(1) of the Convention, by reason of the denial to Mr. Sewell
of recourse to a Constitutional Motion for the determination of his
rights under domestic law and the Convention in connection with the
criminal proceedings against him.
on the analysis and the conclusions in the present report,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS REITERATES THE FOLLOWING
RECOMMENDATIONS TO THE STATE OF JAMAICA:
Grant Mr. Sewell an effective remedy which includes commutation
of sentence in relation to the mandatory death sentence imposed upon Mr.
Sewell, and compensation in respect of the remaining violations of Mr.
Sewell’s rights under the American Convention as concluded above.
Adopt such legislative or other measures as may be necessary to
ensure that the death penalty is not imposed in contravention of the
rights and freedoms guaranteed under the Convention, including and in
particular Articles 4, 5 and 8.
Adopt such legislative or other measures as may be necessary to
ensure that the conditions of detention in which Mr. Sewell is held
comply with the standards of humane treatment mandated by Article 5 of
Adopt such legislative or other measures as may be necessary to
ensure that the right to a fair hearing under Article 8(1) of the
Convention and the right to judicial protection under Article 25 of the
Convention are given effect in Jamaica in relation to recourse to
Constitutional Motions in accordance with the Commission’s analysis in
By communication dated October 30, 2002, the Commission
transmitted the content of this report, adopted as Report Nº 59/02
pursuant to Article 51(1) of the Convention, to the State and to the
Petitioners in accordance with Article 51(2) of the Convention and
granted a period of one month within which to inform the Commission of
the measures taken to comply with the Commission's recommendations. The
parties did not present responses within the time limit prescribed by
147. Based upon the foregoing considerations, and in the absence of a response by the State to Report Nº 59/02, the Commission in conformity with Article 51(3) of the American Convention and 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 Jamaica with respect to the above recommendations until they have been complied with by Jamaica.
on the 27th day of the month of December, 2002. (Signed):
Juan E. Méndez, President; Marta Altolaguirre, First Vicepresident;
José Zalaquett, Second Vicepresident; Robert K. Goldman, Julio Prado
Vallejo, Clare K. Roberts, and Susana Villarán, Commissioners.
Affidavit of Dave Sewell, sworn on February 6, 2001,
Americas Watch, Human Rights in Jamaica: Death
Penalty, Prison Conditions and Police Violence, News from Americas
Watch, April 1993, Vol. 5, Nº 3, p. 3
In its merits judgment in the Suarez Rosero Case, for
example, the Inter-American Court found that the treatment of the
victim, who had been held incommunicado for over one month in a damp
and poorly ventilated cell measuring five meters by three, together
with sixteen other persons, without necessary hygiene facilities,
constituted cruel, inhuman or degrading treatment or punishment
contrary to Article 5(2) of the Convention. I/A Court H.R., Suarez
Rosero Case, Judgment, 12 November 1997, Annual
Report 1997, at p. 283. See similarly McKenzie et al. Case,
supra, paras. 270-291.
e.g. McKenzie et al. Case, supra,
para. 288, citing Eur. Court H.R., Ahmed v. Austria, Judgment
of 17 December 1996, Reports
of Judgments and Decisions 1996-VI, p. 220, para. 38.
citing U.N.H.R.C., Mukong v. Cameroon, Communication Nº 458/1991,
U.N. Doc. Nº
CCPR/C/51/D/458/1991 (1994), para. 9.3 (observing that certain
minimum standards governing conditions of detention for prisoners, as
prescribed by the International Covenant on Civil and Political Rights
and reflected in the U.N. Standard Minimum Rules for the Treatment of
Prisoners, must be observed regardless of a state party's level of
United Nations Standard Minimum Rules for the
Treatment of Prisoners, adopted August 30, 1955 by the First United
Nations Congress on the Prevention of Crime and the Treatment of
Offenders, U.N. Doc. A/CONF/611, annex I, E.S.C. res. 663C, 24 U.N.
ESCOR Supp. (Nº 1) at 11, U.N. Doc. E/3048 (1957), amended E.S.C.
Res. 2076, 62 U.N. ESCOR Supp. (Nº 1) at 35, U.N. Doc E/5988 (1977).
European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (CPT), Second General Report on the
CPT's Activities Covering the Period 1 January to 31 December 1991,
Ref. CPT/Inf. (92) 3 (13 April 1992), paras. 44-50 (criticizing prison
conditions involving overcrowding, the absence of at least one hour of
exercise in the open air every day for prisoners, and the practice of
prisoners discharging human waste in buckets, and stating that the
Committee is "particularly concerned when it finds a combination
of overcrowding, poor regime activities and inadequate access to
toilet/washing facilities in the same establishment. The cumulative
effect of such conditions can prove extremely detrimental to
I/A Court H.R., Suarez
Rosero Case, Judgment, 12 November 1997, Annual
Report 1997, p. 283,
para. 72. See also I/A
Court H.R., Genie Lacayo Case,
Judgment of January 29, 1997, Annual
Report 1997, para. 77. See
also Report 2/97, Cases 11.205, 11.236, et al. (Argentina) March
11, 1997, Annual
Report 1997 at 241, 245-6.
This reasoning was set forth in the leading European Court case
on this issue, the Stogmuller v.
Austria judgment of 10 November 1969, Series A no. 9, p. 40.
See Report 2/97,
Cases 11.205, 11.236, et al. (Argentina), supra.
Report No. 12/96, Case 11.245 (Argentina), March 1, 1996, Annual
Report 1995, at 33, See
similarly U.N.H.R.C., Desmond
Williams v. Jamaica, Communication No. 561/1993, U.N. Doc.
CCPR/C/59/D/561/1993 (1997) (holding that by “rejecting the author’s
allegation in general terms, the State party has failed to discharge
the burden of proof that the delays between arrest and trial in the
instant case was compatible with article 14, paragraph 3(c); it would
have been incumbent upon the State party to demonstrate that the
particular circumstances of the case justified prolonged pre-trial
See e.g. Suarez
Romero Case, supra, p.
300, para. 73 (finding a period of delay 4 years and 2 months between
the victim’s arrest and disposition of his final appeal to “far
exceed” the reasonable time contemplated in the Convention and
therefore to violate Articles 7(5) and 8(1) of the Convention.); I/A
Comm. H.R., Report on Panama, Annual
Report 1991, at p. 485 (finding an average pre-trial delay of 2
years and 4 months to be unreasonable contrary to Article 7(5) of the
Convention); Desmond Williams v.
Jamaica, supra, para.
9.4 (finding a delay of two years between arrest and trial to be
prolonged and unreasonable); U.N.H.R.C., Patrick
Taylor v. Jamaica, Communication Nº 707/1996, U.N. Doc.
CCPR/C/60/D/707/1996 (1997) (finding a delay of 28 months between
arrest and trial to be a violation of the Petitioner’s right to be
tried without undue delay).
I/A Court H.R., Constitutional Court Case, Judgment of January 31,
2001, Ser. C Nº 7, paras. 69, 70 (finding that the minimum guarantees
established under Article 8(2) of the Convention are not limited to
judicial proceedings in a strict sense, but also apply to proceedings
involving the determination of rights and obligations of a civil,
labor, fiscal or other nature.). See
also I/A Comm. H.R., Loren Laroye Riebe Star and others
v. Mexico, Report Nº 49/99 (13 April 1999), Annual
Report 1998, para. 70 (interpreting Article 8(1) in the context
of administrative proceedings leading to the expulsion of foreigners
as requiring certain minimal procedural guarantees, including the
opportunity to be assisted by counsel or other representative,
sufficient time to consider and refute the charges against them and to
seek and adduce corresponding evidence.).
similarly Currie v. Jamaica, supra,
para. 13.4 (concluding that where a convicted person seeking
Constitutional review of irregularities in a criminal trial has not
sufficient means to meet the costs of legal assistance in order to
pursue his Constitutional remedy and where the interests of justice so
require, Article 14(1) of the International Covenant on Civil and
Political Rights required the State to provide legal assistance).
Case 10.970 (Mejia v. Peru), Annual
Report of the IACHR 1995, pp. 190-191.
I/A Court H.R., Exceptions to the Exhaustion of
Domestic Remedies (Arts. 46(1), 46(2)(a) and 46(2)(b) of the American
Convention on Human Rights), Advisory Opinion OC-11/90 of August 10,
Report 1991, para. 30.
I/A Court H.R., Hilaire, Constantine and Benjamin et al.
v. Trinidad and Tobago, Judgment of June 21, 2002, available at
<http: // www.corteidh.or.cr/T_y_t/Serie_c_94_ing.doc>.
Id., para. 103.