continued...

  

89.             Among the fundamental principles upon which the American Convention is grounded is the recognition that the rights and freedoms protected thereunder are derived from the attributes of their human personality.[58] From this principle flows the basic requirement underlying the Convention as a whole, and Article 5 in particular, that individuals be treated with dignity and respect. Accordingly, Article 5(1) guarantees to each person the right to have his or her physical, mental, and moral integrity respected, and Article 5(2) requires all persons deprived of their liberty to be treated with respect for the inherent dignity of the human person. These guarantees presuppose that persons protected under the Convention will be regarded and treated as individual human beings, particularly in circumstances in which a State Party proposes to limit or restrict the most basic rights and freedoms of an individual, such as the right to liberty. In the Commission’s view, consideration of respect for the inherent dignity and value of individuals is especially crucial in determining whether a person should be deprived of his or her life. 

90.             The mandatory imposition of the death sentence, however, has both the intention and the effect of depriving a person of their right to life based solely upon the category of crime for which an offender is found guilty, without regard for the offender’s personal circumstances or the circumstances of the particular offense. The Commission cannot reconcile the essential respect for the dignity of the individual that underlies Article 5(1) and (2) of the Convention, with a system that deprives an individual of the most fundamental of rights without considering whether this exceptional form of punishment is appropriate in the circumstances of the individual’s case. 

91.             Finally, the Commission considers that the imposition of mandatory death sentences cannot be reconciled with an offender’s right to due process, as contemplated in and as provided for in Articles 4 and 8 of the Convention. It is well established that proceedings leading to the imposition of capital punishment must conform to the highest standards of due process. The due process standards governing accusations of a criminal nature against an individual are prescribed in Articles 8(1) and 8(2) of the Convention, which include the right to a hearing before a competent, independent and impartial tribunal, the right of the accused to defend himself or herself, personally or by counsel, and the right to appeal the judgment to a higher court. In addition, as noted previously, Article 4 of the Convention provides that the death penalty should be imposed only for the most serious offenses, and contemplates that certain factors attributable to a particular offender or offense may bar the imposition of the death penalty altogether in the circumstances of a particular case. 

92.             In the Commission’s view, therefore, the due process guarantees under Article 8 of the Convention, when read in conjunction with the requirements of Article 4 of the Convention, presuppose as part of an individual’s defense to a capital charge an opportunity to make submissions and present evidence as to whether a death sentence may not be a permissible or appropriate punishment in the circumstances of his or her case. This may be on the basis, for example, that the crime for which they have been convicted should be considered a political or related common crime within the meaning of the Convention. The due process guarantees should also be interpreted to include a right of effective review or appeal from a determination that the death penalty is an appropriate sentence in a given case.  

93.             The mandatory imposition of the death sentence is inherently antithetical to these prerequisites. By its nature, it precludes any opportunity on the part of the offender to make, or for the Court to consider, representations or evidence as to whether the death penalty is a permissible or appropriate form of punishment, based upon the considerations in Article 4 of the Convention or otherwise. Also, as noted previously, it precludes any effective review by a higher court of a decision to sentence an individual to death.  

94.             Contrary to the current practice in Grenada, the Commission considers that imposing the death penalty in a manner which 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 an appropriate form of punishment in the circumstances of their 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.  

95.             In this regard, as the following discussion of international and domestic jurisdictions will indicate, a principle of law has developed common to those democratic jurisdictions that have retained the death penalty, according to which the death penalty should only be implemented through “individualized” sentencing. Through this mechanism, the defendant is entitled to present submissions and evidence in respect of all potentially mitigating circumstances relating to himself and his or her 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.[59]  

96.             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. Consistent with the foregoing discussion, the Commission considers that the high standards of due process and humane treatment under Articles 4, 5 and 8 of the Convention governing the lawful imposition of the death penalty should be interpreted to require individualized sentencing in death penalty cases. In the Commission’s view, this is consistent with the restrictive interpretation to be afforded to Article 4 of the Convention, and in particular the Inter-American Court’s view that Article 4 of the Convention should be interpreted “as imposing restrictions designed to delimit strictly the scope and application of the death penalty, in order to reduce the application of the penalty to bring about its gradual disappearance.”[60]  

97.             In light of the foregoing analysis, the Commission considers that the imposition of a mandatory death sentence by the State for the crime of murder, is not consistent with the terms of Article 4(1), 5(1), 5(2), 8(1) and 8(2) of the Convention and the principles underlying those Articles.

 

iii.        Individualized sentencing in other international and domestic jurisdictions 

98.             The experience of other international human rights authorities, as well as the high courts of various common law jurisdictions that have, at least until recently, retained the death penalty, substantiates and reinforces an interpretation of Articles 4, 5, and 8 of the Convention that prohibits the mandatory imposition of the death sentence. In this connection, it is the Commission’s view, based upon a study of these various international and domestic jurisdictions, that a common precept has developed whereby the exercise of guided discretion by sentencing authorities to consider potentially mitigating circumstances of individual offenders and offenses is considered to be a condition sine qua non to the rational, humane and fair imposition of capital punishment. Mitigating circumstances requiring consideration have been determined to include, inter alia, the character and record of the offender, the subjective factors that might have influenced the offender’s conduct, the design and manner of execution of the particular offense, and the possibility of reform and social readaptation of the offender.  

99.             In the case of  Lubuto v. Zambia,[61] for example, the complainant had received a mandatory death sentence for armed robbery. The United Nations Human Rights Committee did not address the question of whether mandatory death penalties per se contravened the International Covenant on Civil and Political Rights (“ICCPR”). The Committee found, however, that the absence of discretion on the part of a sentencing authority to consider the particular circumstances of an offense in determining whether the death penalty is an appropriate punishment may, in certain circumstances, contravene internationally prescribed conditions for implementing capital punishment. In this case, the Committee found that the absence of discretion contravened the requirement under Article 6(2) of the ICCPR[62] that the death penalty be imposed “only for the most serious crimes”. The Committee concluded: 

Considering that in this case use of firearms did not produce the death or wounding of any person and that the court could not under the law take these elements into account in imposing sentence, the Committee is of the view that the mandatory imposition of the death sentence under these circumstances violates article 6, paragraph 2 of the Covenant. 

100.        The United Nations Special Rapporteur on Extra-Judicial, Summary or Arbitrary Executions has suggested more generally that the due process standards applicable in death penalty proceedings require, inter alia, that all mitigating factors be taken into account in imposing sentence: 

Proceedings leading to the imposition of capital punishment must conform to the highest standards of independence, competence, objectivity and impartiality of judges and juries. All defendants in capital cases must benefit from the full guarantees for an adequate defence at all stages of the proceedings, including adequate provision for State-funded legal aid by competent defence lawyers. Defendants must be presumed innocent until their guilt has been proven without leaving any room for reasonable doubt, in application of the highest standards for the gathering and assessment of evidence. All mitigating factors must be taken into account. A procedure must be guaranteed in which both factual and legal aspects of the case may be reviewed by a higher tribunal composed of judges other than those who dealt with the case at the first instance. In addition, the defendant’s right to seek pardon, commutation of sentence or clemency must be guaranteed.[63] [emphasis added]

101.        The highest courts of various common law jurisdictions in which the death penalty has, at least until recently, been retained have similarly considered the rational, humane and fair imposition of the death penalty to require guided discretion on the part of the sentencing authority to consider mitigating circumstances of individual offenders and offenses. The United States Supreme Court in the case of Woodson v. State of North Carolina[64] found that a mandatory death sentence for first degree murder under the law of North Carolina violated the Eighth[65] and Fourteenth[66] Amendments to the U.S. Constitution. Among the grounds for the Court’s decision was a finding that the mandatory death penalty did not satisfy a basic constitutional requirement, and that the process for imposing a death sentence should not be arbitrary, but rather incorporate “objective standards” that guide and regularize the process and make it amenable to judicial review.[67] The Court also found that the mandatory death penalty failed to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before imposing a death sentence upon him, and was therefore inconsistent with the fundamental respect for humanity underlying the prohibition of cruel and unusual punishment under the Eighth Amendment. In respect of the latter ground, the Court made the following compelling observations: 

In Furman, members of the Court acknowledged what cannot be fairly denied – that death is a punishment different from all other sanctions in kind rather than degree.[68] A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.

 

This Court has previously recognized that “[f]or the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender”[69]. Consideration of both the offender and the offense in order to arrive at a just and appropriate sentence has been viewed as a progressive and humanizing development[70]. While the prevailing practice of individualizing sentencing determinations generally reflects simply an enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment,[71] requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.

 

This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100 year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.[72] 

102.        In the case of The State v. Makwanyane and McHunu,[73] the Constitutional Court of South Africa struck down the death penalty provision of the Criminal Procedure Act N 51[74] as inconsistent with South Africa’s 1993 Constitution. As part of its analysis, that Court also suggested that the guided discretion provided to South African judges to consider the personal circumstances and subjective factors of a defendant in applying the death penalty satisfied in part the requirement that the death penalty not be imposed arbitrarily or capriciously; the Court reasoned as follows [footnotes included]:         

Basing his argument on the reasons which found favour with the majority of the United States Supreme Court in Furman v. Georgia, Mr. Trengove contended on behalf of the accused that the imprecise language of section 277, and the unbounded discretion vested by it in the Courts, make its provisions unconstitutional. [75]

 

[…]

 

Under our court system questions of guilt and innocence, and the proper sentence to be imposed on those found guilty of crimes, are not decided by juries. In capital cases, where it is likely that the death sentence may be imposed, judges sit with two assessors who have an equal vote with the judge on the issue of guilt and on any mitigating or aggravating factors relevant to sentence; but sentencing is the prerogative of the judge alone. The Criminal Procedure Act allows a full right of appeal of persons sentenced to death, including a right to dispute the sentence without having to establish an irregularity or misdirection on the part of the trial judge. The Appellate Division is empowered to set the sentence aside if it would not have imposed such a sentence itself, and it has laid down criteria for the exercise of this power by itself and other courts.[76] If the person sentenced to death does not appeal, the Appellate Division is nevertheless required to review the case and to set aside the death sentence if it is of the opinion that it is not a proper sentence.[77]

 

Mitigating and aggravating factors must be identified by the Court, bearing in mind that the onus is on the State to prove beyond a reasonable doubt the existence of aggravating factors, and to negate beyond a reasonable doubt the presence of any mitigating factors relied upon by the accused.[78] Due regard must be paid to personal circumstances and subjective factors which might have influenced the accused person’s conduct,[79] and these factors must then be weighed with the main objects of punishment, which have been held to be: deterrence, prevention, reformation, and retribution.[80] In this process “[e]very relevant consideration should receive the most scrupulous care and attention,”[81] and the death sentence should only be imposed in the most exceptional cases, where there is no reasonable prospect of reformation and the objects of punishment would not be properly achieved by any other sentence. [82]

 

There seems to me to be little difference between the guided discretion required for the death sentence in the United States, and the criteria laid down by the Appellate Division for the imposition of the death sentence. The fact that the Appellate Division, a court of experienced judges, takes the final decision in all cases is, in my view, more likely to result in consistency of sentencing, than will be the case where sentencing is in the hands of jurors who are offered statutory guidance as to how that discretion should be exercised.[83] 

103.        Similarly, in the of  case Bachan Singh v. State of Punjab,[84] the appellant argued  before the Supreme Court of India that section 354(3) of the Indian Criminal Procedure Code, 1973 contravened the requirement under Article 21 of the Indian Constitution that “[n]o person shall be deprived of his life or personal liberty except according to procedure established by law,” because the provision provided judges with too much discretion in determining whether offenders should be sentenced to death.[85] The Indian Supreme Court rejected the appellant’s contention,  because in the Court’s view, it was consistent with the requirements of Article 21 for the legislation to leave the imposition of the death penalty to “the judicial discretion of the Courts which are manned by persons of reason, experience and standing in the profession” who exercise their sentencing discretion “judicially in accordance with well-recognized principles crystallised by judicial decisions directed along the broad contours of legislative policy towards the signposts enacted in section 354(3).”[86] In reaching this conclusion, the Court articulated the following propositions intended to guide Indian judges in exercising their sentencing discretion relating to the death penalty: 

(a)               the normal rule is that the offense of murder shall be punished with the sentence of life imprisonment. The Court can depart from that rule and impose the sentence of death only if there are special reasons for doing so. Such reasons must be recorded in writing before imposing the death sentence.

(b)               while considering the question of sentence to be imposed for the offense of murder under section 302, Penal Code, the Court must have regard to every relevant circumstance relating to the crime as well as the criminal. If the Court finds, but not otherwise, that the offense is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the Court may impose the death sentence.[87]  

104.        The Court also emphasized the crucial role that mitigating factors play in the humane imposition of capital punishment. The Court stated that the “scope and concept of mitigating factors in the area of the death penalty must receive a liberal and expansive construction by the Courts in accord with the sentencing policy written in section 354(3),” and opined that:  

[a] real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That should not  be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.[88] 

105.        The experience in other international and domestic jurisdictions therefore suggests that a Court must have the discretion to take into account the individual circumstances of an individual offender and offense must be taken into account by a court in determining whether the death penalty can and should be imposed, if the sentencing is to be considered rational, humane and rendered in accordance with the requirements of due process. The individual circumstances to be considered have been determined to include the character and record of the offender, the subjective factors that might have influenced the offender’s conduct, the design and manner of execution of the particular offense, and the possibility of reform and social readaptation of the offender.  

106.        Authorities in these jurisdictions have also suggested that, in order to be exercised in a rational and non-arbitrary manner, the sentencing discretion should be guided by legislative or judicially-prescribed principles and standards, and should be subject to effective judicial review, all with a view to ensuring that the death penalty is imposed in only the most exceptional and appropriate circumstances. The Commission considers that these principles should also be considered in interpreting and applying Articles 4, 5 and 8 of the Convention, so as to require individualized sentencing in implementing the death penalty. To accept any lesser standard would, in the Commission’s view, fail to afford sufficient protection to the most fundamental of rights under the American Convention.

 

iv.            The case before the Commission 

a.                 Mandatory death penalty 

107.        As indicated previously, Mr. Baptiste was found guilty of murder pursuant to Section 234 of the Criminal Code of Grenada and was sentenced to a mandatory death sentence by hanging. Section 234 of the Criminal Code specifically states that “whoever commits murder shall be liable to suffer death.” With respect to the elements of the crime of murder in Grenada, the Trial Judge instructed the Jury “that the prosecution have to prove that the accused man did the act intentionally and that that act which accused man did intentionally caused the death of Annie Baptiste- Lambert by unlawful harm contrary to Section 234 of the Criminal Code.”[89]  

108.        Consequently, the Commission concludes that once Mr. Baptiste was found guilty of the crime of murder, the law in Grenada did not permit a hearing by the courts as to whether the death penalty was a permissible or appropriate penalty for Mr. Baptiste. There was no opportunity for the trial judge or the jury to consider such factors as Mr. Baptiste's character or record, the nature or gravity of the offense, or the subjective factors that may have motivated Mr. Baptiste's conduct. Mr. Baptiste was likewise precluded from making representations on these matters. The Court sentenced Mr. Baptiste based solely upon the category of crime for which he had been found responsible.

 109.        Moreover, the record before the Commission indicates that there may have been mitigating circumstances pertaining to Mr. Baptiste that could have been taken into account during sentencing, and which may be considered to illustrate the necessity of individualized sentencing. More particularly, the record suggests that Mr. Baptiste's conduct was motivated by his desire to prevent his mother from inflicting further harm on him or his younger brother. For example, in an unsworn statement from the dock during his trial, Mr. Baptiste stated as follows: 

My mother beat Deverill for a long time and did not stop. I went across by my mother. I hold on to the belt which she was beating my brother with.  I release my brother and I send him outside in the  yard.  I take the belt from my mother because the belt belong to my girlfriend Bernadette and I went back in the house together with the belt where I live.[90]

 110.        Mr. Baptiste continued: 

About ten past twelve my mother leave her house and she was coming to me. She had on a yellow hat on her head. She did not had anything in her hand.  I did not had anything in my hand either.  When she reach in front of me she slapped  my face … When she reach in front of me she say “today! Today! I must kill you” and she slapped me in my face.  I pull down the lace from the line.  I open the cabouya in it.  I try to pass it over my mother head and then pass it over her shoulder to tie her both hands.  Whilst doing so, my mother jerked away then the lace draw in her neck.  She fell to the ground. I let out the lace the same time.  I rush for  a cutlass and I cut off the lace from my mother neck. . . I did not want to do anything to my mother more than to tie her hands because she hit me in my face.  I only wanted to prevent her from hitting me again or do anything to me.[91]   

111.        Mr. Baptiste’s statements therefore suggest that his mother's threats and abuse constituted a significant motivating factor behind his crime.  

112.        In addition, according to Mr. Baptiste’s unsworn statement, he had not planned to inflict harm on his mother. It was only upon being slapped by his mother with the accompanying words; “Today, today, I must kill you,” that he removed the laces from the line and passed them over her head to stop her from slapping him. He stated that he did not intend to do anything more to his mother than tie both of her hands. While the jury may not have been satisfied that this evidence negated the mental element for the crime of murder, his state of mind may have been a mitigating circumstance in determining whether the circumstances of Mr. Baptiste's crime warranted imposition of the death penalty.  

113.        The Commission does consider the death of Mr. Baptiste’s mother to be a serious matter. The evidence on the record also suggests, however, that Mr. Baptiste's offense constituted a spontaneous reaction to threats and acts of abuse previously perpetrated by his mother. In the Commission's view, these circumstances are pertinent in determining whether Mr. Baptiste's offense warrants punishment by the death penalty. 

114.        The record before the Commission also reveals other mitigating factors in this case pertaining to the character and disposition of Mr. Baptiste, and his relationship in dealing with his other siblings. For example, Mrs. Roma Findlay, a State social worker who had previously worked with Mr. Baptiste's family, testified as follows regarding Mr. Baptiste's relationship with his younger sister, Samantha: 

I am a social worker.  I am the Director of the Sapodilla Children’s Home.  I am attached to the Ministry of Social Services St. George’s as a Child Welfare Officer.  I live at Westerhall, St. David.  The Sapodilla Home is situated at Westerhall, St. David.[92] 

 

I know the witness Samantha Baptiste.  At present she lives at the Sapodilla Children’s Home.  She is now 11 years old.  I first became acquainted with Samantha Baptiste in 1989.  She was 5 years old at the time.  She was living with her mother in St. David’s at that time.  I had occasion to visit the mother’s home and Samantha at that time.  I removed Samantha from her mother’s home for medical attention.  I took her to Dr. Noah and to the General Hospital.  She spent 10 days at the General Hospital.  I then took her to the Sapodilla Home at that time. After 3 years her mother Annie Baptiste requested that she come home.  I then released Samantha Baptiste from the Sapodilla home.  The same year of her release, 1992 I then asked that Samantha be sent back to the Sapodilla Home because I had observed upon follow up visits that Samantha was being kept away from school to look after her younger sisters and brothers.  I took her to the Sapodilla Home for approximately 11 months. Samantha left the Sapodialla Home again at the request of her mother Annie Baptiste and went back home.[93]

In December 1992 I received a report concerning Samantha.  I dealt with the case.  Following this report Samantha’s natural father was charged.  He was then the boyfriend of Annie Baptiste.  I then removed Samantha once again to the Sapodilla Home.  This was for the third time.  Annie Baptiste had 4 other children by her boyfriend.  In my capacity as Social Worker  I had to deal with 3 of Annie Baptiste’s other children.  I had to take the 3 other children away from the care of Annie Baptiste.  Following the report of 1992 and Samantha’s being taken into the Sapodialla Home she was again send back home some time in 1993.  When her father was sent to prison in 1993, Samantha was sent back home.  When her mother died in 1993, Samantha was then living at her mother’s residence.[94]

 

I have been dealing with the Baptiste family since 1989.  I have met the accused about 6 times.  I first met him in the yard where he was living.  I also saw him visiting Samantha and his other brothers and sisters who were then living at the Sapodilla Home.  The accused assisted financially in the support of the children at the Sapodilla Home.  Sometimes he would ask for Samantha’s book list and assist in getting her books and her medication.[95]

 

Annie Baptiste had about 9 children in all.  As far as I know no other child of Annie Baptiste besides the accused ever visited her children in the Sapodilla Home or make any contribution towards their up keep.[96]

 

The accused was of a quiet disposition. He was very sympathetic about Samantha.  I never noticed any friction between the accused and his mother.  Samantha now lives at the Sapodilla Home.  I saw the accused at the prison during my visit to the prison last year and earlier this year.  I spoke with the accused on those visits.  He continued to ask how Samantha was doing.  Two other Baptiste children besides Samantha are still at the Sapodilla Home.  The accused was  a bus conductor.  The children of the accused are in Grenville.  I visited them to see the condition in which they lived.[97] 

115.        Mrs. Findlay's testimony therefore indicated that Mr. Baptiste was of good character, and was a caring and nurturing brother to his siblings. He took an interest in their well being and also provided financial support for the members of  his family. Mrs. Findlay’s testimony also suggested that due to Mr. Baptiste’s character, disposition and concern for his family members, it was likely that he would intervene to prevent his mother from inflicting harm on his younger brother. In the Commission's view, these factors pertaining to Mr. Baptiste's character are also pertinent in determining whether the death penalty is an appropriate punishment in the circumstances of Mr. Baptiste's offense.  

116.        As the foregoing analysis indicates, however, the law in Grenada does not permit mitigating circumstances of this nature to be considered by a court in sentencing an individual to death. The Commission recognizes that, had the court in this case been provided with the discretion under law to consider factors of this nature in determining an appropriate sentence, it may well have still imposed the death penalty. The Commission cannot, and indeed should not, speculate as to what the outcome may have been. This determination properly falls to the domestic court. What is crucial to the Commission's determination that Mr. Baptiste's death sentence contravenes the Convention, however, is the fact that Mr. Baptiste was not provided with an opportunity to present these and other mitigating factors in the context of sentencing, nor was the Court permitted to consider evidence of this nature in determining whether the death penalty was an appropriate punishment in the circumstances of Mr. Baptiste's case.

 

b.                 Advisory Committee on the Prerogative of Mercy 

117.        The Commission does not consider that the State’s Advisory Committee on the Prerogative of Mercy, which was established pursuant to Articles 73 and 74 of Grenada’s Constitution, can provide an adequate opportunity consistent with the requirements of the Articles 4, 5, and 8 of the American Convention for the proper implementation of the death penalty through individualized sentencing. The authority of the Executive in Grenada to exercise the Prerogative of Mercy is prescribed in Sections 72, 73 and 74 of the Constitution of Grenada, which provide as follows: 

72(1)  The Governor-General may, in Her Majesty’s name and on Her Majesty’s behalf.-

(a)  grant a pardon, either free or subject to lawful conditions, to any person convicted of any offence;

(b)  grant to any person a respite, either indefinite or for a specified period, of the execution of any punishment  imposed on that person for any offence;

(c)  substitute a less severe form of punishment for any punishment imposed on a person for any offence; or

(d)  remit the whole or any part of any punishment imposed on any person for any offence or of any penalty or forfeiture otherwise due to the Crown on account of any offence.”

(2) The powers of the Governor-General under subsection (1) of this section shall be exercised by him in accordance with the advice of such Minister as may for the time being be designated by the Governor-General, acting in accordance with the advice of the Prime Minister.

73 (1) There shall be an Advisory Committee on the Prerogative of Mercy which shall consist of –

(a)  the Minister for the time being designated under Section 72(2) of this Constitution who shall be the Chairman;

(b)  the Attorney General;

(c)  the chief medical officer of the Government of Grenada; and

(d)  three other members appointed by the Governor-General, by instrument in writing under his hand.

(2) A member of the Committee appointed under subsection (1)(d) of this section shall hold his seat thereon for such period as may be specified in the instrument by which he was appointed: Provided that his seat shall become vacant –

(a)  in the case of a person who, at the date of his appointment was a Minister, if he ceases to be a Minister; or

(b)  if the Governor-General by instrument in writing under his hand, so directs.

(3)    The Committee may act notwithstanding any vacancy in its membership or absence of any member and its proceedings shall not to be invalidated by the presence or participation of any person not entitled to be present at or to participate in those proceedings.

(4)    The Committee may regulate its own procedure.

 

(5)    In the exercise of his functions under this section, the Governor-General shall act in accordance with the advice of the Prime Minister.

74(1) Where any person has been sentenced to death (otherwise than by a court-martial) for an offence, the Minister for the time being designated under section 72(2) of this Constitution shall cause a written report of the case from the trial judge (or, if a report cannot be obtained from the judge, a report on the case from the Chief Justice), together with such other information derived from the record of the case or elsewhere as he may require, to be taken into consideration at a meeting of the Advisory Committee on the Prerogative of Mercy; and after obtaining the advice of the Committee he shall decide in his own deliberate judgment whether to advise the Governor-General to exercise any of his powers under section 72(1) of this Constitution.

(2)  The Minister for the time being designated under section 72(2) of this Constitution may consult with the Advisory Committee on the Prerogative of Mercy before tendering advice to the Governor-General under section 72(1) of this Constitution in any case not falling within subsection (1) of this section but he shall not be obliged to act in accordance with the recommendation of the Committee. 

118.        The law in Grenada therefore provides for a process by which the Executive may exercise the authority to grant amnesties, pardons, or commutations of sentences. The Commission is not, however, aware of any prescribed criteria that are applied in the exercise of the functions or discretion of the Advisory Committee, save for the requirement in death penalty cases that the Minister cause a written report of the case from the trial judge, and possibly other information in the Minister's discretion, to be taken into consideration at the meeting of the Advisory Committee. Nor is the Commission aware of any right on the part of an offender to apply to the Advisory Committee, to be informed of the time when the Committee will meet to discuss the offender's case, to make oral or written submissions to the Privy Council or to present, receive or challenge evidence considered by the Privy Council. The submissions of the petitioners confirm that the exercise of the power of pardon in Grenada involves an act of mercy that is not the subject of legal rights and therefore is not subject to judicial review.[98]  

119.        This process is not consistent with the standards prescribed under Articles 4, 5 and 8 of the Convention, that are applicable to the imposition of mandatory death sentences. As outlined previously, these standards include legislative or judicially-prescribed principles and standards to guide courts in determining the propriety of death penalties in individual cases, and an effective right of appeal or judicial review in respect of the sentence imposed. The Prerogative of Mercy process in Grenada clearly does not satisfy these standards, and therefore cannot serve as a substitute for individualized sentencing in death penalty prosecutions. 

120.        Moreover, based upon the information before it, the Commission finds that the procedure for granting mercy in Grenada does not guarantee condemned prisoners with an effective or adequate opportunity to participate in the mercy process, and therefore does not properly ensure the victims' right under Article 4(6) of the Convention to apply for amnesty, pardon or commutation of sentence. 

121.        In the Commission's view, the right to apply for amnesty, pardon or commutation of sentence under Article 4(6) of the Convention, when read together with the State's obligations under Article 1(1) of the Convention, must be read to encompass certain minimum procedural protections for condemned prisoners, if the right is to be effectively respected and enjoyed. These protections include the right on the part of condemned prisoners to apply for amnesty, pardon or commutation of sentence, to be informed of when the competent authority will consider the offender's case, to make representations, in person or by counsel, to the competent authority, and to receive a decision from that authority within a reasonable period of time prior to his or her execution. It also entails the right not to have capital punishment imposed while such a petition is pending decision by the competent authority. In order to provide condemned prisons with an effective opportunity to exercise this right, a procedure should be prescribed and made available by the State through which prisoners may file an application for amnesty, pardon or commutation of sentence, and submit representations in support of his or her application. In the absence of minimal protections and procedures of this nature, Article 4(6) of the American Convention is rendered meaningless, a right without a remedy. Such an interpretation cannot be sustained in light of the object and purpose of the American Convention. 

122.        In this respect, the right to apply for amnesty, pardon or commutation of sentence under Article 4(6) of the Convention may be regarded as similar to the right under Article XXVII of the American Declaration of every person "to seek and receive asylum in foreign territory, in accordance with the laws  of each country and with international agreements," and the corresponding Article 22(7) of the Convention, which provides for the right to "seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions, in the event he is being pursued for political offenses or related common crimes."[99] The Commission has interpreted the former provision, in conjunction with the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees, as giving rise to a right under international law of a person seeking refuge to a hearing in order to determine whether that person qualifies for refugee status.[100] Other internationally-articulated requirements governing the right to seek asylum reflect similar minimum standards, namely the right of an individual to apply to appropriate authorities for asylum, to make representations in support of their application, and to receive a decision.[101] 

123.        Consistent with the interpretation of the right to seek asylum by the Commission and other international authorities, the Commission finds that  Article 4(6) of the Convention must be interpreted to encompass certain minimum procedural guarantees for condemned prisoners, in order for the right to be effectively respected and enjoyed. The Commission notes in this regard that some common law jurisdictions retaining the death penalty have prescribed procedures through which condemned prisoners can engage and participate in the amnesty, pardon or commutation process.[102] 

124.        The information before the Commission indicates that the process in Grenada for granting amnesty, pardon or commutation of sentence does not guarantee Mr. Baptiste any procedural protections. By its terms, Section 74 of Grenada’s Constitution does not provide condemned prisoners with any role in the mercy process.  

125.        The petitioners have  claimed that Mr. Baptiste has no right to make submissions to the Advisory Committee. Whether and to what extent prisoners may apply for amnesty, pardon or commutation of sentence remains entirely at the discretion of the Advisory Committee, and no procedure or mechanism is provided for that specifies the manner in which prisoners may file an application for amnesty, pardon or commutation of sentence, submit representations in support of his or her application, or receive a decision. Consequently, the Commission finds that the State has failed to respect the right of Mr. Baptiste under Article 4(6) of the American Convention to apply for amnesty, pardon or commutation of sentence. 

 

c.                 Conclusion         

126.        Based upon the foregoing facts and the interpretive principles outlined above, the Commission finds that by imposing a mandatory death sentence on Mr. Baptiste, the State violated his rights pursuant to Articles 4(1), 5(1), 5(2), and 8(1) of the Convention.  

127.        More particularly, the Commission concludes that the trial judge imposed the mandatory death penalty on Mr. Baptiste, in the absence of any guided discretion to consider his personal characteristics and the particular circumstances of his offense to determine whether death was an appropriate punishment which violated his rights as established by Articles 4(1), 5(1), 5(2), and 8(1) of the American Convention. Mr. Baptiste was also 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 him based upon the category of crime for which he was convicted and without any principled distinction or rationalization based upon the particular circumstances of his personality or his crime. Moreover, the propriety of the sentence imposed was not susceptible to any effective form of judicial review, and his execution is now imminent, his conviction for murder having been upheld on appeal by the Appellate Court in Grenada. The Commission therefore concludes that the State has violated Mr. Baptiste’ rights under Article 4(1) of the Convention not to be arbitrarily deprived of his life, and therefore, his mandatory death sentence is unlawful.  

128.        The Commission further concludes that the State, by sentencing Mr. Baptiste to a mandatory penalty of death absent consideration of his individual circumstances, has failed to respect his right to physical, mental and moral integrity contrary to Article 5(1) of the American Convention, and has subjected him to cruel, inhuman, or degrading punishment or treatment in violation of Article 5(2). The State sentenced Mr. Baptiste to death solely because he was convicted of a predetermined category of crime. Accordingly, the process to which he has been subjected, would deprive him of his most fundamental right, his right to life, without consideration of his personal circumstances and his offense. Treating Mr. Baptiste in this manner abrogates the fundamental respect for humanity that underlies the rights protected under the Convention, and Articles 5(1) and 5(2) in particular. 

129.        The Commission also concludes that the State has violated Mr. Baptiste’s right pursuant to Article 4(6) of the American Convention by failing to guarantee him an effective right to apply for amnesty, pardon or commutation of sentence, to make representations, in person or by counsel, to the Advisory Committee on the Prerogative of Mercy, and to receive a decision from the Advisory Committee within a reasonable time prior to his execution. 

130.        Finally, the Commission concludes that the State has violated Mr. Baptiste’s right to a hearing with due guarantees by a competent, independent and impartial tribunal. as established  under Article 8 of the American Convention. Mr. Baptiste was not provided with an opportunity to make representations and present evidence to the trial judge as to whether his crime warranted the ultimate penalty of death, and was therefore denied the right to fully answer and defend the criminal accusation against him. 

131.        It follows from the Commission’s findings that, should the State execute Mr. Baptiste pursuant to his mandatory death sentence, this would constitute further egregious and irreparable violations of Articles 4 and 5 of the Convention.  

132.        Given its foregoing conclusions as to the legality of Mr. Baptiste's death sentence under Articles 4, 5  and 8 of the Convention, the Commission does not consider it necessary to determine whether sentencing Mr. Baptiste to a mandatory death penalty violated his rights to equal protection of the law contrary to Article 24 of the Convention.

 

b.         Articles 4 and 5 – conditions of detention  

133.        The petitioners allege that the State has violated Mr. Baptiste’s right to have his physical, mental and moral integrity respected, as well as his right not to be subjected to cruel, unusual or degrading punishment or treatment pursuant to Article 5(1) and 5(2) of the American Convention, because of the conditions of detention to which he has been subjected. They argue further that these conditions render his execution unlawful under Article 4 of the Convention.  

134.        In support of their allegations, the petitioners have provided the Commission with an affidavit sworn by Mr. Baptiste on April 11th 1997, in which he describes his conditions of detention since his arrest and subsequent conviction for murder on July 11th, 1995, as follows:

 I am presently incarcerated on death row which consist of a number of cells each containing one inmate.  The cells on death row are situated underneath the main prison building in an area called “Jonestown” (named after the Jonestown Massacre in Guyana in South America some years ago.)

 

My cell is approximately 9 feet by 6 feet  (9ft. x 6ft.) and I spend approximately 23 hours a day in my cell alone.  I am provided with a bed and mattress to sleep on, but there is no other furniture in my cell.  I am provided with a bucket which I use as a toilet.  I am permitted to slop out the contents of the bucket once a day. Once it has been used, I am forced to endure the smell and unhygienic conditions until I am able to empty it.

 

The lighting in my cell is insufficient.  The cell has no windows and no natural lighting, and accordingly has no ventilation.  Any lighting in my cell is provided by a single bulb situated in the corridor in front of my cell.

 

I am provided with three meals a day.  Sometimes food is brought to me in my cell where I am made to eat alone.  The food is generally of a poor quality.  I am provided with drinking water.

 

I am allowed one hour of exercise per day. There are no exercise facilities and my hour is usually spent standing in the yard.

 

I am allowed one visitor per month for a period of 15 minutes.  I am allowed to write and receive one letter a month.

 

As a prisoner on death row, I am not permitted access to the prison services.  I am not allowed to use the prison library, nor am I allowed access to the chaplain and religious services.

 

I receive inadequate medical care.  Visits by the doctor are not regular and it is not always clear whether I will be able to see a doctor when necessary.

 

There are no adequate complaints mechanism or procedure for dealing with any complaints I may have. 

135.        As described in Part III of this Report, the petitioners also rely upon general sources of information regarding prison conditions in Grenada and other Caribbean countries. These include reports prepared in 1990 and 1991 by the non-governmental organization “Caribbean Rights.”  While somewhat outdated, the Reports tend to support Mr. Baptiste's allegations in respect of the conditions in which he has been incarcerated since his arrest.  

136.        The Commission considers that the petitioners' allegations should be evaluated in light of minimum standards articulated by international authorities for the treatment of prisoners, including those prescribed by the United Nations. More particularly, Rules 10, 11, 12, 15, 21, 24, 26, 40, and 41 of the United Nations Standard Minimum Rules for the Treatment of Prisoners[103] (UN Minimum Rules) provide for minimum basic standards in respect of accommodation, hygiene, exercise,  medical treatment, religious services and library facilities for prisoners, as follows: 

10. All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic 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 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 decent manner.

 

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 permits.

(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.

 

24. The medical officer shall see and examine every prisoner as soon as possible after his admission and thereafter as necessary, with a view particularly to the discovery of physical and mental illness and the taking of all necessary measures; the segregation of prisoners suspected of infectious or contagious conditions; the noting of physical or mental defects which might hamper rehabilitation, and the determination of the physical capacity of every prisoner for work.

 

26. (1) The medical officer shall have the care of the physical and mental health of the prisoners and should see daily all sick prisoners, all who complain of illness, and any prisoner to whom his attention is specially directed.

(2) The medical officer shall report to the director whenever he considers that a prisoner’s physical or mental health has been or will be injuriously affected by continued imprisonment or by any condition of imprisonment. 

40. Every institution shall have a library for the use of all categories of prisoners, adequately stocked with both recreational and instructional books, and prisoners shall be encouraged to make full use of it.

 

41. (1) If the institution contains a sufficient number of prisoners of the same religion, a qualified representative of that religion shall be appointed or approved.  If the number of prisoners justifies it and conditions permit, the arrangement should be on a full-time basis.

  (2) A qualified representative appointed or approved under paragraph (1) shall be allowed to hold regular services and to pay pastoral visits in private to prisoners of his religion at proper times.

(3) Access to a qualified representative of any religion shall not be refused to any prisoner.  On the other hand, if any prisoner should object to a visit of any religious representative, his attitude shall be fully respected.

 

42. So far as practicable, every prisoner shall be allowed to satisfy the needs of his religious life by attending the services provided in the institution and having in his possession the books of religious observance and instruction of his denomination. 

137.        It is evident, based upon the information provided by the petitioners that the conditions of detention to which Mr. Baptiste has been subjected fail to meet several of these minimum standards of treatment of prisoners, in such areas as hygiene, exercise and medical care. For example, Mr. Baptiste claims that his cell has no windows, no natural lighting, and no ventilation, and that the lighting in his cell is insufficient. He claims that he is provided with a bucket to use as a toilet, and that he is only entitled to empty the bucket once a day and is therefore forced to ensure unpleasant smells and unhygienic conditions once the bucket is used. Mr. Baptiste also claims that he is not allowed to use the prison library, nor is he allowed access to the chaplain or religious services. Further, Mr. Baptiste states that he receives inadequate medical care, as visits from the doctor are not regular and it is not clear whether he will be able to see a doctor when necessary. Finally, Mr. Baptiste contends that there are no adequate mechanisms or procedures in the prison for dealing with his complaints.  

138.        The State has failed to provide any information in respect of prison conditions in Grenada, generally or as they pertain to Mr. Baptiste. Based upon the information on the record before it, the Commission concludes that the State has failed to treat Mr. Baptiste with respect for his physical, mental or moral integrity, and has therefore violated Article 5(1) of the Convention.

 

c.         Articles 8 and 25, – unavailability of legal aid for Constitutional Motions 

139.        The petitioners argue that legal aid is not effectively available for Constitutional Motions before the courts in Grenada, and that this constitutes a violation of the right to a fair trial under Article 8 of the Convention.  Although the petitioners have not specifically referred to Article 25 of the American Convention, the right to an effective remedy, the Commission considers that their allegations relating to the denial of an effective remedy at law also encompass Article 25 of the Convention. Therefore, the Commission has also analyzed their claims relating to the unavailability of legal aid for Constitutional Motions under Article 25 of the Convention, in conformity with Article 32(c) of the Commission’s Regulations.[104]  

140.        The petitioners contend that the failure of the State to provide legal aid denies Mr. Baptiste access to the Court in fact as well as in law. The petitioners argue that to bring a Constitutional Motion before the domestic courts often involve sophisticated and complex questions of law that require the assistance of Counsel. In addition, the petitioners claim that Mr. Baptiste is indigent, and that legal aid is effectively not available to him to pursue a Constitutional Motion in the courts in Grenada. They also contend that there is a dearth of Grenadian lawyers who are prepared to represent Mr. Baptiste pro bono.  

141.        Based upon the material before it, the Commission is satisfied that Constitutional Motions dealing with legal issues of the nature raised by Mr. Baptiste in his petition, such as the right to due process and the adequacy of his prison conditions, are procedurally and substantively complex and cannot be effectively raised or presented by a prisoner in the absence of legal representation. The Commission also finds that the State does not provide legal aid to individuals in Grenada to bring Constitutional Motions, and that Mr. Baptiste is indigent and is therefore not otherwise able to secure legal representation to bring a Constitutional Motion.  

142.        The Commission considers that in the circumstances of  Mr. Baptiste’s case, the State's obligations regarding legal assistance for Constitutional Motions flow from both Article 8 and Article 25 of the Convention. In particular, the determination of rights through a Constitutional Motion in the High Court must conform with the requirements of a fair hearing in accordance with Article 8(1) of the Convention. In the circumstances of Mr. Baptiste’s case, the High Court of Grenada would be called upon to determine whether the victim’s conviction in a criminal trial violated rights under the Grenada’s Constitution. In such cases, the application of a requirement of a fair hearing in the High Court should be consistent with the principles in Article 8(2) of the Convention.[105] 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.  

143.        Due to the unavailability of legal aid, Mr. Baptiste has effectively been denied the opportunity to challenge the circumstances of his conviction under Grenada’s Constitution in a fair hearing. This in turn constitutes a violation of his right under Article 8(1) of the American Convention.[106]     

144.        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 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 section 25 when read together with the obligation in 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.”[107] In 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 remedies.[108] 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 case.  

145.        By failing to make legal aid available to Mr. Baptiste to pursue a Constitutional Motion in relation to his criminal proceedings, the State has effectively barred recourse for Mr. Baptiste to a competent court or tribunal in Grenada for protection against acts that potentially violate his fundamental rights under Grenada’s Constitution and under the American Convention. Moreover, in capital cases, where Constitutional Motions relate to the procedures and conditions through which the death penalty has been imposed and therefore relate directly to the right to life and to humane treatment of a defendant, it is the Commission's view that the effective protection of those rights cannot properly be left to the random prospect as to whether an attorney may be willing or available to represent the defendant without charge. The right to judicial protection of these most fundamental rights must be guaranteed through the effective provision of legal aid for Constitutional Motions.[109] The State cannot be said to have afforded such protection to Mr. Baptiste. As a consequence, the State has failed to fulfil its obligations under Article 25 of the American Convention in respect of Mr. Baptiste. 

146.        Accordingly, the Commission concludes that the State has failed to respect Mr. Baptiste's rights under Article 8(1)of the Convention by denying him an opportunity to challenge the circumstances of his conviction under the Constitution of Grenada in a fair hearing. The Commission also concludes that the State has failed to provide Mr. Baptiste with simple and prompt recourse to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the Constitution or laws of Grenada or by the Convention, and has therefore violated the rights of Mr. Baptiste to judicial protection under Article 25 of the American Convention.

 

PRECAUTIONARY MEASURES

 

147.        In light of the Commission’s findings that the State has committed several serious violations of Mr. Baptiste’s fundamental human rights under Articles 4, 5, 8, and 25 of the Convention, the Commission hereby issues Precautionary Measures pursuant to Article 29(2) of its Regulations. The Commission hereby requests that the State take all the appropriate measures to stay Mr. Baptiste’s execution to avoid irreparable harm to him, and ensure that Mr. Baptiste is not arbitrarily deprived of his life.

V.                PROCEEDINGS SUBSEQUENT TO REPORT N 126/99 

148.        On September 27, 1999, the IACHR, at its 104th Period of Sessions, approved Report N 126/99 in this case on the basis of Article 50 of the Convention, and forwarded it to the State with its Conclusions and Recommendations, on November 30, 1999. In its Recommendations to the State, the Commission requested that the State inform it within two months of  the measures that it had taken to comply with the Commission’s Recommendations. So that the Commission could have all the necessary information to decide whether the measures taken are adequate and whether to publish its Report pursuant to Article 51 of the American Convention. The period of two months  has elapsed and the Commission has not received a response from the State of Grenada in respect of its Recommendations in this case.

 
VI.            FINAL CONCLUSIONS 

Consequently, the Commission, on the basis of the information presented, and the due analysis under the American Convention, reiterates its conclusions that the State of Grenada is liable as follows: 

149.        The State is responsible for violating Mr. Baptiste’s rights under Articles 4(1), 5(1), 5(2) and 8(1), in conjunction with a violation of Article 1(1) of the American Convention, by sentencing Mr. Baptiste to a mandatory death penalty.  

150.        The State is responsible for violating Mr. Baptiste’s rights under Article 4(6) of the Convention, in conjunction with a violation of Article 1(1) of the American Convention, by failing to provide Mr. Baptiste with an effective right to apply for amnesty, pardon or commutation of sentence. 

151.        The State is responsible for violating Mr. Baptiste’s rights under Article 5(1) of the American Convention,  in conjunction with a violation of Article 1(1) of the American Convention, because of Mr. Baptiste’s conditions of detention.  

152.        The State is responsible for violating  Mr. Baptiste’s rights under Articles 8 and 25 of the Convention, in conjunction with a violation of Article 1(1) of the Convention, by failing to make legal aid available to him to pursue a Constitutional Motion.

 

VII.            RECOMMENDATIONS 

Based on the analysis and the conclusions in this Report, 

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS RECOMMENDS THAT THE STATE OF GRENADA:

1.                  Grant Mr. Baptiste an effective remedy which includes commutation of sentence and compensation. 

2                    Adopt such legislative or other measures as may be necessary to ensure that the death penalty is imposed in compliance with the rights and freedoms guaranteed under the American Convention, including and in particular Articles 4,5, and 8. 

3.                  Adopt such legislative  or other measures as may be necessary to ensure that the right under Article 4(6) of the American Convention to apply for amnesty, pardon or commutation of sentence is given effect in Grenada. 

4.                  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 American Convention and the right to judicial protection under Article 25 of the American Convention are given effect in Grenada in relation to recourse to Constitutional Motions. 

5.                  Pursuant to Article 29(2) of the Commission’s Regulations take all the appropriate measures to stay the execution of Mr. Baptiste to avoid irreparable harm to him, and ensure that he is not arbitrarily deprived of his life.

 

VIII.            PUBLICATION 

            153.          On March 1, 2000, in conformity with Article 51(1) and 51 (2) of the American Convention, the Commission sent Report N 6/00, which was adopted in this case on February 24, 2000 to the State of Grenada,  and granted the State a period of one month for it to adopt the necessary measures to comply with the foregoing recommendations and to resolve the situation under analysis. The period of one month has elapsed and the Commission has not received a response from the State of Grenada in respect of its Recommendations in this case.

 

IX.             FINAL ANALYSIS AND CONCLUSIONS 

                        For these reasons, the Commission decides that the State has not taken all of the appropriate measures to comply with the recommendations set forth in this report. 

Based on the foregoing and pursuant to Article 51(3) of the American Convention and Article 48 of the Commission’s Regulations, the Commission decides to reiterate the conclusions and recommendations contained in Report N 4/00. The Commission further decides to make public this report and include it in the Commission’s Annual Report to the General Assembly of the OAS. 

Done and signed by the Inter-American Commission on Human Rights in the city of Washington, D.C., on the 13th day of the month of April, 2000 (Signed): Hlio Bicudo,  Chairman; Claudio Grossman, First Vice-Chairman; Juan Mndez, Second Vice-Chairman; Commissioners: Marta Altolaguirre, Robert K. Goldman, Peter Laurie and Julio Prado Vallejo.

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[58] The Preamble to the Convention recognizes that “the essential rights of man are not derived from one’s being a national of a certain state, but are based upon the attributes of the human personality.”

[59] The Commission refers in this regard to the interpretative approach advocated by the European Court of Human Rights, that its governing Convention is “a living instrument which…must be interpreted in light of present-day conditions.” See Eur. Court H.R., Tyrer v. United Kingdom (1978) 3 E.H.R.R. 1 at para. 31.

[60] Advisory Opinion on the Death Penalty, supra, at para. 57.

[61] U.N.H.R.C., Lubuto v. Zambia, Communication N 390/1990, U.N. Doc. CCPR/C/55/D/390/1990/Rev. 1, para. 7.2.

[62] ICCPR, Article 6, supra.

[63] Ndiaye Report, supra, para. 377. With respect to international sentencing standards more generally, the International Criminal Tribunal for the former Yugoslavia provides one of the few modern examples of an international tribunal adjudicating serious violations of international humanitarian law. While the penalty imposed by the Tribunal is limited to imprisonment, the Tribunal’s governing statute specifically provides that’ “[i]n imposing the sentences, the Trial Chambers should take into account such matters as the gravity of the offence and the individual circumstances of the convicted person.” Statute for the International Criminal Tribunal for the former Yugoslavia, Annex to the Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, U.N., Doc. S/25704/Add.1/Corr.1 (1993), Art. 24. See similarly Statute for the International Criminal Tribunal for Rwanda, Annex to Security Council Resolution 955, U.N. SCOR, 49th Sess., 3453 mtg., U.N. Doc. S/RES/955 (1994), Art. 23.

[64] Woodson v. North Carolina 49 L Ed 2d. 944.

[65] The Constitution of the United States, Amendment VIII (1791) (providing “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”).

[66] Id. Amendment XIV, Section I (providing “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”).

[67] Id. at 960. In its decision in the case Furman v. Georgia, 408 U.S. 238, the Supreme Court declared the vesting of standardless sentencing discretion in the jury in imposing capital sentences as contrary to the Eighth and Fourteenth Amendments. In rejecting North Carolina’s contention in Woodson that the inadequacies identified in Furman were remedied by withdrawing all sentencing discretion from juries in capital cases, the Court suggested that the mandatory sentencing scheme was no more rational, as the statute provided “no standards to guide the jury in its inevitable exercise of the power to determine which first-degree murderers shall live and which shall die,” and provided no way for the judiciary to “check arbitrary and capricious exercise of that power through a review of death sentences.”

[68] See 408 US, at 286-291, 33 L Ed 2d 346, 92 S Ct 2726 (Brennan J. concurring); id., at 306, 33 L Ed 2d 346, 92 S Ct 2726 (Stewart, J., concurring).

[69]  Pennsylvania ex rel. Sullivan v. Ashe, 302 US 51, 55, 82 L Ed43, 58 S Ct 59 (1937).

[70] See Williams v. New York, 337 US, at 247-249, 93 L Ed 1337, 69 S Ct 1079; Furman v. Georgia, 408 US, at 402-3, 33 L Ed 2d 346, 92 S Ct 2726 (Burger C.J., dissenting).

[71] See Trop v. Dulles, 356 US, at 100, 2 L Ed 2d 630, 78 S Ct 590 (plurality opinion).

[72] Id. at 961. See also Roberts (Stanislaus) v. Louisiana, 428 U.S., 325, 333, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).

[73] The State v. Makwanyane and McHunu, Judgment, Case N CCT/3/94 (6 June 1995) (Constitutional Court of the Republic of South Africa).

[74] Section 277 of the Criminal Procedure Act N 51 provided:

Sentence of Death

(1)          The sentence of death may be passed by a superior court only and only in the case of a conviction for:

(a)          murder;

(b)          treason committed when the Republic is in a state of war;

(c)          robbery or attempted robbery, if the court finds aggravating circumstances to have been present;

(d) kidnapping;

(e)          child-stealing;

(f)           rape.

(2)          The sentence of death shall be imposed

(a)                      after the presiding judge conjointly with the assessors (if any), subject to the provisions of s. 145(4)(a), or, in the case of a trial by a special superior court, that court, with due regard to any evidence and argument on sentence in terms of section 274, has made a finding on the presence or absence of any mitigating or aggravating factors; and

(b)                      if the presiding judge or court, as the case may be, with due regard to that finding, is satisfied that the sentence of death is the proper sentence.

[75] Id. pp. 32-36. The Court went on to conclude that additional factors such as discrimination and the “imperfection” inherent in criminal trials may also lead to arbitrary results in the imposition of the death penalty, and determined further that such arbitrary results could not be appropriately remedied through strict due process, as had been endeavored in the United States. Id. at 36-43.  

[76] Criminal Procedure Act N 51 of 1977, section 322(2A) (as amended by section 13 of Act N 107 of 1990).

[77] Id. section 316A(4)(a).

[78] S. v Nkwanyana and Others 1990 (4) SA 735 (A) at 743E-745A.

[79] S v. Masina and Others 1990 (4) SA 709 (A) at 718G-H.

[80] S v. J 1989 (1) SA 669 (A) at 682G. “Generally speaking, however, retribution has tended to yield ground to the aspects of correction and prevention, and it is deterrence (including prevention) which has been described as the ‘essential’, ‘all important’, ‘paramount’, and ‘universally admitted’ object of punishment.” Id. at 682I-J (cited with approval in S v P 1991 (1) SA 517 (A) at 523G-H. CF. R. v Swanepoel 1945 AD 444 at 453-455.

[81] Per Holmes JA in S v Letsolo 1970 (3) SA 476 (A) at 477B (cited with approval by Nicholas AJA in S v Dlamini 1992 (1) SA 18 (A) at 31I-32A in the context of the approach to sentencing under section 322(2A)(b) of the Criminal Procedure Act N 51 of 1977).

[82] S v Senonohi 1990 (4) SA 727 (A) at 734F-G; S v Nkwanyana, supra at 749A-D.

[83] Id. at 35-36.

[84] Bachan Singh v. State of Punjab, (1980) 2 S.C.C. 475.

[85] Id. at 509-510.

[86] Id. at 516.

[87] Id. at 515.

[88] Id. at 534.

[89] Id. Trial Transcript p. 1, (10).

[90] Unsworn Statement of Mr. Baptiste from the dock, 10th July, 1995, 9:10 a.m. pp. 72- 73, (30) Trial Transcript, Case N 181 of 1994, Regina and Rudolph Baptiste.

[91] Id., pp. 73-74 (20).

[92] Id., p. 74,

[93] Id.

[94] Id., pp. 74-75.

[95] Id., p. 75.

[96] Id.

[97] Id.

[98] See Reckley v. Minister of Public Safety (N 2) [1996] 2 W.L.R. 281 at 289-291 (finding that the exercise of the Prerogative of Mercy by the Minister of Public Safety in The Bahamas involved an act of mercy that was not the subject of legal rights and was therefore not judicable); de Freitas v. Benny [1976] 2 A.C. 239.

[99] See similarly Universal Declaration on Human Rights, Article 14 (providing for the right of every individual to "seek and to enjoy in other countries asylum from persecution.").

[100] I/A. Comm. H.R., Haitian Center for Human Rights and others (United States), Case N 10.675 (13 Match 1997), Annual Report 1996, para. 155.

[101] See e.g. Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, paras. 189-219 (prescribing basic requirements for the procedures for determining refugee status, including the right  of an applicant to be given the necessary facilities for submitting his case to the authorities concerned, and that the applicant be permitted to remain in the country pending a decision on his initial request for refugee status); Council of Europe, Resolution on minimum guarantees for asylum procedures, Brussels, 21 June 1995, Articles 10, 12, 14, 15, 23  (prescribing common procedural guarantees to be provided by Member States of the European Union in processing asylum application, including the right of an asylum-seeker, at the border or otherwise, to have an opportunity to lodge his asylum application as early as possible, to remain in the territory of the state in which his application has been lodged or is being examined as long as the application has not been decided upon, to be given the opportunity of a personal interview with an official qualified under national law before a final decision is taken on the asylum application, and to have the decision on the asylum application communicated to the asylum-seeker in writing.).

[102] In the State of Ohio, for example, clemency review has been delegated in large part to the Ohio Adult Parole Authority (OAPA). In the case of an inmate under sentence of death, the OAPA must conduct a clemency hearing within 45 days of the scheduled date of execution. Prior to the hearing, the inmate may request an interview with one or more parole board members. The OAPA holds a hearing, completes its clemency review, and makes a recommendation to the Governor. If additional information later becomes available, the OAPA may in its discretion hold another hearing or alter its recommendation. See Ohio Constitution, Art. III, s. 2, Ohio Revised Code Ann., s. 2967.07 (1993). See also Ohio Adult Parole Authority v. Woodward, Court File N 96-1769 (25 March 1998)(U.S.S.C.) (finding that Ohio's clemency procedures do not violate the U.S. Constitution's Due Process Clause).

[103] 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. (N 1) at 11, U.N. Doc. E/3048 (1957), amended E.S.C. res. 2076, 62 U.N. ESCOR Supp. (N 1) at 35, U.N. Doc E/5988 (1977).

[104] Article 32 of the Commission’s Regulations provides that: “Petitions addressed to the Commission shall include (c) an indication of the state in question which the petitioner considers responsible, by commission or omission, for the violation of a human right recognized in the American Convention on Human Rights in the case of States Parties thereto, even if no specific reference is made to the article alleged to have been violated.”

[105] See 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, 1990, Annual Report 1991, para. 28 (interpreting Article 8(1) of the Convention as follows:

For cases which concern the determination of a person's rights and obligations of a civil, labor, fiscal or any other nature, Article 8 does not specify any minimum guarantees similar to those provided in Article 8(2) for criminal proceedings. It does, however, provide for due guarantees; consequently, the individual here also has the right to the fair hearing provided for in criminal cases.

See also I/A Comm. H.R., Loren Laroye Riebe Star and others  v. Mexico, Report N 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).

[106] See similarly Currie v. Jamaica , Communication N 377/1989, U.N.Doc. N CCPR/C/50/D/377/1989 (1994), 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).

[107] See Peru Case, supra, pp. 190-191.

[108] I/A Court H.R., Exceptions to the Exhaustion of Domestic Remedies, supra, para. 30.

[109] See similarly U.N.H.R.C., William Collins v. Jamaica, Communication N 240/1987, U.N. Doc. N CCPR/C/43/D/240/1987 (1991), para. 7.6 (finding that in capital punishment cases, legal aid should not only be made available, it should enable counsel to prepare his client's defense in circumstances that can ensure justice).