... continued

200.        Similarly, by reason of its compulsory nature, a mandatory death sentence precludes any effective review by a higher court as to the propriety of a sentence of death in the circumstances of a particular case. As indicated previously, once a mandatory sentence is imposed, all that remains for a higher court to review is whether the defendant was properly found guilty of a crime for which the sentence was mandated. There is no opportunity for a reviewing tribunal to consider whether the death penalty was an appropriate punishment in the circumstances of the particular offense or offender. This consequence cannot be reconciled with the fundamental principles of due process under Articles 4 and 8 of the Convention that govern the imposition of the death penalty, which, as the Inter-American Court has recognized, include strict observance and review of the procedural requirements governing the imposition or application of the death penalty. The absence of effective review further illustrates the arbitrary nature of implementing the death penalty through mandatory sentencing, and leads the Commission to conclude that this practice cannot be reconciled with the terms of Article 4 of the Convention and its underlying principles.

 

201.        The Commission is also of the view that imposing the death penalty through mandatory sentencing is not consistent with the terms of Article 5 of the Convention or its underlying principles. Article 5 of the Convention provides as follows:

 

Article 5 – Right to Humane Treatment

 

1.                  Every person has the right to have his physical, mental, and moral integrity respected.

 

2.                  No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.

 

3.                  Punishment shall not be extended to any person other than the criminal.

 

4.                  Accused persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall be subject to separate treatment appropriate to their status as unconvicted persons.

 

5.                  Minors while subject to criminal proceedings shall be separated from adults and brought before specialized tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors.

 

6.                  Punishments consisting of deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoners.

 

202.        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 the human personality.[86] From this principle flows the basic requirement underlying the Convention as a whole, and Article 5 in particular, that persons be treated with individual 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 of the rights and freedoms of an individual. In the Commission's view, consideration of respect for the inherent dignity and value of individuals is especially crucial when determining whether a person should be deprived of his or her right to life.

 

203.        The mandatory imposition of the death penalty, however, has both the intent and the effect of depriving a person of their right to life based solely upon the category of crime for which the 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 5(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.

 

204.        Finally, the Commission considers that mandatory death sentences cannot be reconciled with an offender’s right to due process, as provided for in Article 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, and 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.

 

205.        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.

 

206.        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 representations or present 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. Again, this is subject to the exception under Articles 3(2) to 3(6) of Jamaica's Offences Against the Person Act applicable to pregnant offenders. Also, as noted previously, mandatory sentencing precludes any effective review by a higher court of a decision to sentence an individual to death. These violations of Article 8 of the Convention in turn compound the arbitrary nature of any deprivation of life perpetrated pursuant to mandatory sentences, contrary to Article 4(1) of the Convention.

 

207.        Contrary to the current practice in Jamaica, 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 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.

 

208.        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 his or her person or offense, and the court imposing sentence is afforded discretion to consider these factors in determining whether the death penalty is a permissible or appropriate punishment.

 

209.        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 also to be interpreted to require individualized sentencing in death penalty cases.[87] 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.”[88]

 

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

 

211.        In light of the foregoing analysis, the Commission considers that imposing the death penalty through mandatory sentencing, as Jamaica has done in respect of crimes of capital and multiple non-capital murders, 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.

 

c.          Individualized sentencing in other international and domestic jurisdictions

 

212.        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 mandatory death sentences. Based upon a study of these various international and domestic jurisdictions, it is the Commission’s view 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 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.

 

213.        In the case of Lubuto v. Zambia,[89] for example, the victim had received a mandatory sentence of death for armed robbery. The U.N. 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[90] 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.

 

214.        The U.N. 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 defense at all stages of the proceedings, including adequate provision for State-funded legal aid by competent defense 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.[91] [emphasis added]

215.        The highest courts of various common law jurisdictions in which the death penalty has, at least until recently, been retained have similarly concluded that the rational, humane and fair imposition of the death penalty requires discretion on the part of courts to examine the mitigating circumstances of individual offenders and offenses in sentencing individuals to death. The United States Supreme Court in the case of Woodson v. State of North Carolina[92] found a mandatory death sentence for first degree murder under the law of North Carolina to violate the Eighth[93] and Fourteenth[94] Amendments to the U.S. Constitution. North Carolina, like Jamaica, had established distinctions between capital, or first degree, and non-capital, or second degree, murder, and subjected only the former category of murder to the death penalty.[95] The Court nevertheless found North Carolina's law to be unconstitutional. Among the grounds for the Court’s decision was a finding that the mandatory death penalty did not satisfy a basic constitutional requirement that the process for imposing a sentence of death be rational by incorporating “objective standards” that guide and regularize the process and make it amenable to judicial review.[96] 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 the imposing upon him of a sentence of death, 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. 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). 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.” Pennsylvania ex rel. Sullivan v. Ashe, 302 US 51, 55, 82 L Ed43, 58 S Ct 59 (1937). 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. 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). 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, see Trop v. Dulles, 356 US, at 100, 2 L Ed 2d 630, 78 S Ct 590 (plurality opinion), 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.[97]

 

216.        In the case of The State v. Makwanyane and McHunu,[98] the Constitutional Court of South Africa struck down the death penalty provision of the Criminal Procedure Act N 51[99] 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, and reasoned as follows:[100]

 

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.

 

[. . .]

 

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.[101] 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.[102]

 

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.[103] Due regard must be paid to personal circumstances and subjective factors which might have influenced the accused person’s conduct,[104] and these factors must then be weighed up with the main objects of punishment, which have been held to be: deterrence, prevention, reformation, and retribution.[105] In this process “[e]very relevant consideration should receive the most scrupulous care and attention”,[106] 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. [107]

 

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.[108]

 

217.           Similarly, in the case of Bachan Singh v. State of Punjab,[109] the appellant argued  before the Supreme Court of India that section 354(3) of the Indian Criminal Procedure Code of 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.[110] The Indian Supreme Court rejected the appellant’s contention in this regard. This was in part 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).”[111] In reaching this conclusion, the Court articulated the following propositions intended to guide judges in India in exercising their sentencing discretion relating to the death penalty:

 

a.                   the normal rule is that the offence 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 offence 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 offence 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.[112]

 

218.        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 ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.[113]

 

219.        The experience in other international and domestic jurisdictions therefore suggests that a court must have the discretion to take into account the particular circumstances of an individual offender and offense 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 minimum 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. 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. In the Commission's view, 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 Convention.

 

d.          The cases before the Commission

 

i.          Mandatory Death Penalty

 

220.        As indicated previously, the victims in the five cases that are the subject of this Report were convicted of capital murder, or multiple non-capital murders, under Jamaica's Offences Against the Person Act. Murder for the purposes of the Act is defined as the unlawfully killing of another person with the intent to kill or to cause serious bodily injury.[114]   Once an offender is found guilty of capital murder, Article 3(1) of the Act requires a court to impose the death penalty. Similarly, the death sentence is mandatory for a conviction for multiple non-capital murders as provided for in Article 3(1A) of the Act. With the exception of the pregnancy provisions in Articles 3(2) to 3(6) of the Act, there are no provisions in the Act that permit a judge or jury to consider the personal circumstances of an offender or his or her offense, such as the offender’s record or character, the subjective factors that may have motivated his or her conduct, or the offender’s likelihood of reform or social readaptation, in determining whether the death penalty is an appropriate penalty for a particular offender in the circumstances of the offender’s case. Upon satisfying the elements of Articles 3(1) or 3(1A) of the Act, death is the automatic penalty.

 

221.        Consequently, in the cases within this Report, the Commission concludes that once the victims were found guilty of their crimes, the law in Jamaica did not permit a hearing by the courts as to whether the death penalty was a permissible or appropriate penalty for those victims. There was no opportunity for the trial judge or the jury to consider such factors as the victims’ characters or records, the nature or gravity of the offenses, or the subjective factors that may have motivated the victims’ conduct, in determining whether the death penalty was an appropriate form of punishment. The victims were likewise precluded from making representations on these matters. The courts sentenced the victims based solely upon the category of crimes for which they had been found responsible.

 

222.        Moreover, the records before the Commission indicate that there may have been mitigating factors pertaining to certain of the victims and the circumstances of their offenses that could have been taken into account during sentencing, and which therefore may be considered to illustrate the necessity of individualized sentencing. In Case 12.023 (Desmond McKenzie), the record reveals evidence of Mr. McKenzie's good character. The victim was, for example, the owner of a supermarket, ran a clothing business, and managed his father's farm and a warehouse. He had no previous convictions and was actively involved in his community, where he had standing as a local politician, promoted community youth projects and provided assistance at local schools and to the elderly. There is also evidence that the victim committed his crime as revenge for earlier insults from the deceased. While this circumstance may not have satisfied the requirements of the legal defence of provocation, it nevertheless may have been probative in determining whether the victim's offense warranted the death penalty.

 

223.        The Commission recognizes that, had the courts in these cases been presented with evidence of mitigating factors such as those noted above, and had they been permitted to consider this evidence in determining an appropriate sentence, they 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 the victims' sentences violate the Convention, however, is the fact that the victims were not given an opportunity to present evidence of mitigating factors, nor did the courts have a discretion to consider evidence of this nature in determining whether the death penalty was an appropriate punishment in the circumstances of each case. 

 

          ii.          Prerogative of mercy

 

224.        Contrary to the State's submissions, the Commission does not consider that the exercise of the Prerogative of Mercy by the Jamaican Privy Council provides an adequate opportunity consistent with the requirements of Articles 4, 5 and 8 of the Convention for the proper implementation of the death penalty through individualized sentencing. The authority of the Executive in Jamaica to exercise its Prerogative of Mercy is prescribed in Sections 90 and 91 of the State's Constitution:

 

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

 

a.                   grant to any person convicted of any offence against the law of Jamaica a pardon, either free or subject to lawful conditions;

b.                   grant to any person a respite, either indefinite or for a specified period, from the execution of any punishment imposed on that person for such an offence;

c.                   substitute a less severe form of punishment for that imposed on any person for such an offence; or

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

 

(2) In the exercise of the powers conferred on him by this section the Governor-General shall act on the recommendation of the Privy Council.

 

91.(1) Where any person has been sentenced to death for an offence against the law of Jamaica, the Governor-General shall cause a written report of the case from the trial judge, together with such other information derived from the record of the case or elsewhere as the Governor-General may require, to be forwarded to the Privy Council so that the Privy Council may advise him in accordance with the provisions of section 90 of this Constitution.

 

(2) The power of requiring information conferred on the Governor-General by subsection (1) of this section shall be exercised by him on the recommendation of the Privy Council or, in any case in which in his judgement the matter is too urgent to admit of such recommendation being obtained by the time within which it may be necessary for him to act, in his discretion.[115]

 

225.           The Commission is not, however, aware of any prescribed criteria applied in the exercise of the functions or discretion of the Governor-General or Privy Council of Jamaica under Sections 90 and 91, save for the requirement in death penalty cases that the Governor-General cause a written report of the case from the trial judge, and possibly other information in the Governor-General's discretion, to be forwarded to the Privy Council. Nor is the Commission aware of any right on the part of an offender to apply to the Privy Council, to be informed of the time when the Privy Council 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. Indeed, the submissions of the Petitioner and the State alike confirm in this regard that the exercise of the power of pardon in Jamaica involves an act of mercy that is not the subject of legal rights and therefore is not subject to judicial review.[116]

 

226.        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 Jamaica clearly does not satisfy these standards, and therefore cannot serve as a substitute for individualized sentencing in death penalty prosecutions.

 

227.        Moreover, based upon the information before it, the Commission finds that the procedure for granting the Prerogative of Mercy in Jamaica does not guarantee condemned prisoners 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.

 

228.        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, encompasses certain minimum procedural guarantees for condemned prisoners, in order for the right 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 prisoners 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 Convention is rendered meaningless, a right without a remedy. Such an interpretation cannot be sustained in light of the object and purpose of the Convention.

 

229.        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."[117] 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.[118] 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.[119]

 

230.        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.[120]

 

231.        The information before the Commission indicates that the process in Jamaica for granting amnesty, pardon or commutation of sentence does not guarantee condemned prisoners, including the victims in the cases that are the subject of this Report, any procedural protections. By their terms, Sections 90 and 91 of the Jamaican Constitution do not provide condemned prisoners with any role in the mercy process. In addition, the Petitioners have claimed that the "invariable practice" in Jamaica is that prisoners are not informed of the date on which their cases are to be considered, and that often the first time they learn of the mercy process is when they are told that the Prerogative of Mercy is not to be exercised in their case.

 

 

232.        The State has suggested that condemned individuals can apply for mercy an unlimited amount of times and that they or their counsel can bring information to the Privy Council's attention. At the same time, the State has reiterated that prisoners have no legal right to engage in the process of determining whether they should be pardoned for their crimes. Whether and the extent to which prisoners may apply for amnesty, pardon or commutation of sentence remains entirely at the discretion of the Jamaican Privy Council. The Commission has not been apprised of any procedure or mechanism through which prisoners may file an application for amnesty, pardon or commutation of sentence or to be informed as to when the Jamaican Privy Council may consider his or her case. Likewise, there appears to be no process through which a prisoner may 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 the victims under Article 4(6) of the Convention to apply for amnesty, pardon or commutation of sentence. 

 

          iii.          Conclusion

 

233.        Based upon the foregoing facts and the interpretive principles outlined above, the Commission finds that the State, by imposing mandatory death penalties on the victims in the five cases that are the subject of this Report, violated the rights of these victims under Articles 4(1), 5(1), 5(2), and 8(1) of the Convention. The State has also failed to properly guarantee the victims' rights under Article 4(6) of the Convention.

 

234.        More particularly, with respect to Article 4(1) of the Convention, the Commission concludes that the trial judges imposed mandatory penalties of death upon the victims, in the absence of any guided discretion to consider the victims’ personal characteristics and the particular circumstances of their offenses to determine whether death was an appropriate punishment. The victims were likewise not provided with an opportunity to present representations and evidence as to whether the death penalty was an appropriate punishment in the circumstances of their cases. Rather, the death penalty was imposed upon each of the victims abstractly and without principled distinction or rationalization as to whether it was an appropriate form of punishment in the particular circumstances of each case. Moreover, the propriety of the sentence imposed was not susceptible to any effective form of judicial review, and the executions of the victims are now imminent, their convictions having been upheld on appeal to the highest court in Jamaica. The Commission therefore concludes that the State has violated the victims’ rights under Article 4(1) of the Convention not to be arbitrarily deprived of their lives, and therefore that the victims’ death sentences are unlawful.

 

235.        The Commission further concludes that the State, by sentencing the victims in these cases to a mandatory penalty of death absent consideration of their individual circumstances, has failed to respect the victims’ physical, mental and moral integrity contrary to Article 5(1) of the Convention, and has subjected them to cruel, inhuman, or degrading punishment or treatment in violation of Article 5(2). The State sentenced the victims to death solely because they were convicted of a predetermined category of crime. Accordingly, the process to which the victims have been subjected would deprive them of their most fundamental right, their right to life, without considering their personal circumstances and the particular circumstances of their offenses. Treating the victims in this manner abrogates the fundamental respect for humanity that underlies the rights protected under the Convention, and Article 5(1) and (2) in particular.

 

236.        The Commission also concludes that the State has violated Article 4(6) with respect to the victims in these cases, by failing to guarantee the victims an effective right to apply for amnesty, pardon or commutation of sentence, to be informed as to when the Jamaican Privy Council may consider his or her case, to make representations, in person or by counsel, to the Jamaican Privy Council, and to receive a decision from the Jamaican Privy Council within a reasonable time prior to his or her execution.

 

237.        Finally, the Commission concludes that the State has violated the rights of the victims under Article 8(1) to a hearing with due guarantees by a competent, independent and impartial tribunal in the substantiation and defense of the criminal accusations against them. The victims were not provided with the opportunity to make representations and present evidence to the trial judge as to whether their crimes permitted or warranted the ultimate penalty of death, and were therefore denied the right to fully answer and defend the criminal accusations against them.

 

238.        It follows from the Commission’s findings that, should the State execute any of the victims pursuant to these sentences, this would constitute further egregious and irreparable violations of Articles 4 and 5 of the Convention.

 

239.        Given its foregoing conclusions as to the legality of the victims' death sentences under Articles 4, 5  and 8 of the Convention, the Commission does not consider it necessary to determine whether the method of execution in Jamaica violates Articles 4(2) or 5(2) of the Convention, or whether the State has violated Article 4(3) of the Convention because of a moratorium on executions in Jamaica. It likewise does not consider it necessary to determine whether mandatory death sentences, or the exercise of the Prerogative of Mercy in Jamaica, contravene Article 24 of the Convention. 

 

3.          Articles 5, 7 and 8 - delays in the victims' criminal proceedings

 

240.        As indicated in Part III.A.3.b of this Report, the Petitioners in four of the cases that are the subject of the present Report, set out in Table 5 below, allege that the State has violated one or more of Articles 7(5), 7(6) and 8(1) of the Convention in relation to the victims in those cases. In addition, certain of these petitioners have argued that the delays in their criminal proceedings should be considered to violate Article 5 of the Convention and thereby render the victims' executions unlawful.

 

241.        Articles 7(4), 7(5), 7(6) and 8(1) of the Convention provide as follows:

 

7(4) Anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him.

 

 

7(5) Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial.

 

7(6) Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful.  In State Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished.  The interested party or another person in his behalf is entitled to seek these remedies.

 

8(1) Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.

 

242.           As summarized in Part III.A.1 of this Report, the victims in these cases were subjected to the following delays in the course of their criminal proceedings:

 

Table 6

 

Case Number

Victim(s)

Delay between arrest and being brought before a judge

Delay between Arrest and Conviction

Delay between Conviction and Judgment on Final Appeal

Total Delay between Arrest and Judgment on Final Appeal

12.023

Desmond McKenzie

3 weeks

1 yr., 6 mos.

(first trial);

10 mos.

(Re-trial)

2 yrs., 2 mos.

4 yrs., 8 mos.

12.044

Andrew Downer

Alphonso Tracey

1 month, 1 week

3 yrs., 8 mos.

3 yrs., 7 mos.

7 yrs., 3 mos.

12.107

Carl Baker

-

1 yr,. 3 mos.

2 yrs., 2 mos.

3 yrs., 5 mos.

12.126

Dwight Fletcher

3 weeks

2 yrs., 9 mos.

2 yrs., 5 mos.

5 yrs., 2 mos.

 

          a.          Delay in being brought promptly before a judge

 

243.        In its observations on these four cases, the State has raised several arguments in response to the Petitioners' allegations that the victims were not brought promptly before a judge following their arrests, contrary to Article 7(5) of the Convention. First, with respect to Case 12.023 (Desmond McKenzie), the State argues that the victim was free on bail at least five days after detention to visit a hospital and therefore the victim was no longer deprived of his liberty. The petitioners indicate, however, that the victim was taken to the hospital in his wife's car, in handcuffs and with police escort, and was under police guard throughout his stay at the hospital. In addition, the victim was returned to the Chapelton police station lock up following his release from the hospital.  The State does not deny these allegations and does not deny that the victim remained in continuous police detention during his time in the hospital. The petitioners argue that the State has failed to explain the two to three week delay in bringing the victim before a judge following his release from the hospital.

 

244.        With respect to Case 12.044 (Andrew Downer and Alphonso Tracey), the State confirms that the delay between the victims' arrest and their first appearance before a judge was over one month, but denies that this constitutes a violation of Article 7(5) of the Convention.  The State offered no explanation for the delay. 

 

245.        In relation to Case 12.126 (Dwight Fletcher), the State indicated that it would investigate the three week delay in being brought before a judge alleged by the victim.  At present, the Commission has no information regarding the status or results of any such investigation.

 

246.           Apart from the information noted above, the State failed to justify or explain the periods of delay that passed before the legality of the victims' detentions were entrusted to the judiciary. Rather, the State appears to be of the view that the delays in these cases, which range from three weeks to five weeks, satisfy the requirement in Article 7(5) of the Convention that a detainee be brought promptly before a judge. The State also suggests that, even if these delays are found to violate Article 7(5) of the Convention, they would not result in a commutation of the death sentence.

 

247.        In addressing the issue of Article 7(5) with regard to being brought promptly before a judge, the Commission has held that it is fundamental that a person be brought before a judge promptly subsequent to their detention in order to ensure their well-being and avoid any infringement of their other rights.  In Report N 2/97, the case of Jorge Luis Bernstein and others, the Commission declared that "[t]he right to the presumption of innocence requires that the duration of preventive detention not exceed the reasonable period of time cited in Article 7(5)."[121] Furthermore, the Commission noted that:

 

In order to ensure the effective judicial oversight of the detention, the competent court must be quickly appraised of the persons who are held in confinement.  One of the purposes of such action is to protect the well-being of the persons detained and to avoid any violation of their rights. The [Commission] has determined that, unless such detention is reported to the court, or the court is so advised after an appreciable length of time has elapsed from the time the subject has been deprived of his freedom, the rights of the person in custody are not being protected and the detention infringes that person's right to due process.[122]

 

 

In addition, the Commission stated that when the Commission finds that a State has purported to provide a justification for preventive detention, "[the Commission] must proceed to ascertain whether [the State] authorities have exercised the requisite diligence in discharging the respective duties in order to ensure that the duration of such confinement is not unreasonable."[123]   In the Commission's view, such justifications might include the presumption that the accused has committed an offense, danger of flight, the risk that new offences may be committed, the need to investigate, the possibility of collusion, the risk of pressure on the witnesses, and the preservation of public order.[124]

 

248.        Other international human rights tribunals have endeavored to define the "prompt" appearance of a detainee before a judge more precisely.  The United Nations Human Rights Committee in the case of Peter Grant v. Jamaica,[125] found that a one week period from the time of arrest to the date of being brought before a judge constitutes a violation of Article 9(3) of the ICCPR[126] [equivalent to Article 7(5) of the Convention].  Additionally, in the decision of the Committee in the case of Paul Kelly v. Jamaica[127],  the individual opinion submitted by Mr. Bertil Wennergren indicated that the word "promptly" does not allow for a delay in excess of two or three days.

 

249.        Additionally, the European Court of Human Rights has emphasized the importance of "promptness" in the context of Article 5(3) of the European Convention as follows:[128]

         

[I]t enshrines a fundamental human right, namely the protection of the individual against arbitrary interferences by the State with his right to liberty (citation omitted).  Judicial control of interferences by the executive with the individual's right to liberty is an essential feature of the guarantee embodied in Article 5(3) [of the European Convention on Human Rights], which is intended to minimize the risk of arbitrariness.  Judicial control is implied by the rule of law, "one of the fundamental principles of a democratic society"….[129]

           

Furthermore, in the case of Brogan and Others, the European Court of Human Rights found that a period of detention of four days failed to comply with the requirement of a "prompt" appearance before a judicial authority.[130]  Similarly, in the case of Koster v. The Netherlands, the European Court found a delay of five days to be in excess of the meaning of "promptness" in bringing a detainee before a judicial authority, therefore in violation of Article 5(3) of the European Convention.[131]

 

250.        The Commission likewise considers that it is essential for a detainee to be brought before a judicial authority in order to review the lawfulness of their detention, not only in order to comply with the requirements under Article 7(5), but also to ensure the protection of the prisoner's other guaranteed rights while in detention and to minimize the risk of arbitrariness.[132]

 

251.        Clearly, the delays in bringing the victims before a judge in the three cases referenced above are far in excess of the delays which were found to constitute violations before the United Nations Human Rights Committee and the European Court on Human Rights. The provisions of the ICCPR[133] and European Convention[134] under consideration by those tribunals are virtually identical to Article 7(5) of the American Convention, and the Commission sees no reason why the Convention should be subject to any lesser standard regarding the right of a detained person to be brought promptly before a judge. Moreover, the State has offered no adequate explanation or justification for the delays in these cases.

 

252.        With respect to Case 12.023 (Desmond McKenzie) in particular, the Commission considers, on the information before it, that the victim effectively remained in police custody during his time in the hospital, and continued to be so detained by the State following his release from the hospital. Consequently, the State was obliged to bring the victim promptly before a judge, but did not do so until three weeks following the victim's arrest, and, according to the Petitioners, at least two weeks following his release from the hospital. The State has failed to explain or justify this delay.

 

253.        The Commission therefore finds that the victims in Case Nos. 12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey) and 12.126 (Dwight Fletcher), were not brought "promptly" before a judicial authority, in violation of their rights under Article 7(5) of the Convention.

 

          b.          Trial within a reasonable time

 

254.        In relation to a trial within a reasonable time and the length of detention, the Petitioners in four of the cases within this Report, Case 12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.126 (Dwight Fletcher) and 12.107 (Carl Baker) allege that the State failed to try the victims within a reasonable time, contrary to Article 7(5) or 8(1) of the Convention, based upon the delays outlined in Table 5 above.

 

255.        The State responded to the allegations relating to the delay in trying the victims in three of the four cases, Case Nos. 12.044 (Andrew Downer and Alphonso Tracey), 12.107 (Carl Baker) and 12.126 (Dwight Fletcher).  In two of these cases, Case Nos. 12.044 (Andrew Downer and Alphonso Tracey) and 12.126 (Dwight Fletcher), the State indicated that it would conduct investigations into the delays in trying the victims.  The Commission has only been provided with the results of the State's investigation in Case 12.044, which confirmed that the delay between the arrest and trial of the victims amounted to approximately three years and 8 months.  The State purported to explain this delay on the basis that a preliminary inquiry was held between September 25, 1991 and January 6, 1992, and that the victims appeared in court on "a number of occasions" before they were arraigned on December 14, 1994.

 

256.        With respect to Case 12.107 (Carl Baker), the State denies that the delay of 1 year and 3 months in bringing the victim to trial constitutes a violation of the Convention, and has also explained the delay on the basis that a preliminary inquiry was held as a component of the pre-trial process.

 

257.        In each of the three cases in which it made submissions on the issue, the State argues that even if the delay in bringing the victims to trial is considered unreasonable, such delays would not be sufficient to render the victims' sentences unlawful as cruel, inhuman and degrading punishment or treatment under Article 5(2) of the Convention.

 

258.        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.[135] 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.[136]  

 

259.        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.[137] 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.[138]

 

260.        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.”[139]

 

261.        In three of the four cases before the Commission, Case Nos. 12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey) and 12.126 (Dwight Fletcher), the victims have been subjected to a pre-trial delay of more than 2 years, and the delays between their arrests and the disposition of their final appeals exceeded 4 years. In light of the past jurisprudence of this Commission and other international authorities, the Commission is of the view that the delays in these cases are prima facie unreasonable and call for justification by the State.[140]

 

262.        In addition, the State has failed to provide any proper justification for the delays in bringing these victims to trial.  While the State noted in Case 12.044 (Andrew Downer and Alphonso Tracey) that part of the delay was attributable to a preliminary inquiry, the Commission considers that preliminary inquiries cannot in and of themselves constitute justification for a prolonged delay.  Such inquiries, like the other elements of the State’s criminal procedural machinery, must as a whole be regulated so as to ensure that individuals are tried within a reasonable time.[141]  Similarly, the State must take responsibility for a delay caused by the need for a re-trial, as was the case in Case 12.023 (Desmond McKenzie), unless an explanation or justification from the State may lead to a different conclusion. 

263.        Consequently, the Commission concludes that the State failed to try the victims in Case Nos. 12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey) and 12.126 (Dwight Fletcher) within a reasonable time, contrary to Articles 7(5) and 8(1) of the Convention.

 

264.        With respect to Case 12.107 (Carl Baker), the Petitioners assert that the right to be tried within reasonable time and without undue delay, pursuant to Article 8 of the Convention, extends to all appeal proceedings.  The petitioner further argues that the 1 year and 3 month delay between his arrest and trial, and the 1 year and 3 month delay between his conviction and final appeal contravene Article 8(1) of the Convention.   The State argues that such delays are not unreasonable and do not constitute a breach of the Convention.  The State indicates that the delay of 1 year and 3 months from the time the victim was arrested to his trial date was the time necessary to conduct a preliminary inquiry and full investigation to establish whether there was a prima facie case to justify a trial, suggesting that a full investigation would take months for completion. Additionally, the State maintains that a delay of 1 year and 3 months between the victim's date of conviction and hearing of appeal is a reasonable period for the exhaustion of domestic remedies, including appeals, and therefore does not violate the Convention.

 

265.        In response to the State's argument in justification of the delay, the Petitioners indicate that the preliminary inquiry in the victim's case would not, and should not, take one year and three months. As indicated by the State, the purpose of a preliminary inquiry is to establish basic facts in order to determine whether a prima facie case can be established. The petitioners concede that in cases where there are many witnesses and complicated evidence, the preliminary inquiry could take several months.  In this case, however, there were only five witnesses other than the victim, two of whom were detectives. There is also no indication that the case involved a complicated investigation or complex evidence. The petitioners requested a detailed account of the State's inquiry in order to justify a delay of one year and three months following which the State informed the Commission that it had nothing further to add concerning the allegation. 

 

266.        After considering the information before the Commission in this case, in light of the factors laid out by the Inter-American Court in analyzing whether there has been a breach of the right to a trial within a reasonable time, the Commission concludes that the delay in trying the victim was unreasonable contrary to Articles 7(5) and 8(1) of the Convention. According to the information before the Commission, the victim's prosecution does not appear to have been particularly complex, and there is also no indication that the prosecution's case consisted of complex evidence that might assist in explaining such a delay. The State has failed to provide the Commission with any information suggesting that the case was sufficiently complex so as to warrant a 1 year and 3 month delay in each of the victim's pre and post-trial proceedings. Similarly, there is no information before the Commission concerning the procedural activity of the victim or the conduct of the judicial authorities that explains or justifies a delay of 2 years and 6 months between the victim's arrest and the final disposition of his appeal.

 

267.        Therefore, the Commission finds that the State has violated the right of the victim in Case 12.107 (Carl Baker) to a trial within a reasonable time, contrary to Articles 7(5) and 8(1) of the Convention.

 

268.        Finally, the Petitioners in Case 12.126 (Dwight Fletcher) have included Article 7(4) of the Convention among those provisions alleged to have been violated by the State, but have not provided any particulars or submissions substantiating this allegation. Consequently, the Commission finds no violation of the Convention in this regard.

 

269.        Given its conclusions in Part IV.C.2 of this Report that the death sentences imposed upon the victims contravene Articles 4, 5, and 8 of the Convention and are therefore unlawful, the Commission does not consider it necessary to determine whether the length of the delays in trying the victims or their prolonged period of post-conviction detention, as outlined above, constitute cruel, unusual or degrading punishment or treatment contrary to Article 5(2) of the Convention and therefore may also render the victims' executions unlawful.

 

4.          Articles 4 and 5 – conditions of detention/method of execution

 

270.        The Petitioners in all five of the cases under consideration by the Commission allege that the conditions in which the victims have been detained by the State constitute a violation of their rights under Article 5(1) of the Convention to have their physical, mental and moral integrity respected, as well as their right not to be subjected to cruel, unusual or degrading punishment or treatment under Article 5(2) of the Convention. The Petitioners in Case 12.023 (Desmond McKenzie) have also argued that the State failed to segregate the victim from convicted persons prior to trial, contrary to Article 5(4) of the Convention, and that the absence of educational facilities for the victim contravenes Article 5(6) of the Convention. Several petitioners have argued further that the conditions off detention should be considered to render the executions of the victims in those cases unlawful under Article 4 of the Convention. Finally, the Petitioners in Case 12.146 (Anthony Rose) submit 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.

 

271.        As indicated in Part III.A.3.c of this Report, the Petitioners in the five cases before the Commission provide similar particulars regarding the prison conditions of the victims in those cases during their time in detention on death row in Jamaica. The petitioners cumulatively claim that the victim in each case has been held in solitary confinement in cells approximately 8 feet by 5 feet in size. They claim that the cells have insufficient light and ventilation and no bedding, and that some of the cells are infested with insects. They also claim that the conditions in the prison are unhygienic. They claim that there is no integral sanitation in the cells and therefore that the victims must use buckets for toilets, and that the prisoners' washing facilities are located in the same place as their "excrement well". The petitioners claim further that the victims are confined to their cells for approximately 23 hours per day, and that the food and water provided to the victims are inadequate.[142]

 

272.        The petitioners in Case Nos. 12.023 (Desmond McKenzie), 12.044  (Andrew Downer and Alphonso Tracey), 12.107 (Carl Baker) and 12.146 (Anthony Rose) also claim that the victims in those cases have not been provided with adequate medical care. In Case 12.044 (Andrew Downer and Alphonso Tracey), for example, the Petitioners claim that following the arrest of the victim Andrew Downer, prison authorities refused to treat a gun shot wound in the victim's stomach, despite his requests for medical aid. Rather, they claim that the police took the victim to the police station lock up where he was detained for questioning. Following this, the victim was transferred to the Kingston Public Hospital where he remained for 8 days. The petitioners also allege the authorities then returned the victim to detention in an unsanitary cell even though his injuries were serious and required attention, and the victim continues to suffer pain as a result of these injuries.

 

273.        Several of the Petitioners also allege that the victims have been subjected to violence at the hands of the police and prison staff. The petitioners in Case 12.107 (Carl Baker) allege that the victim was subjected to physical and mental torture by the police before trial, by warders while on remand at the St Elizabeth's lock up and by warders at St. Catherine's District Prison. They also claim that the victim has regularly been threatened by prison staff as a consequence of his complaints to officials about his treatment in prison. Similarly, the Petitioners in Case 12.023 (Desmond McKenzie) claim that the victim was abused on three specific occasions during his incarceration, on March 5, 1997, subsequent to an attempted escape from the prison by four other inmates, on August 3, 1997, when he was the subject of assaults and threats by a warder named Ferguson, and on April 3, 1998, when the victim was locked in his cell during and after it was sprayed with insecticide. In Case 12.126 (Dwight Fletcher), the Petitioners allege the victim was beaten at the police station following his arrest on November 21, 1993, during which time police officers placed a gun in his mouth and nostril and fired the gun next to his head, and threatened to beat him if he reported the incident. They claim that Mr. Fletcher was also the subject of beatings at the Montego Bay station in 1993 and in the Mandeville station in 1994, after which he had to be taken to the hospital. The petitioners provided the State and the Commission with additional information pertaining to these incidents, as the State requested in its initial observations on the petition.

 

274.        Finally, the Petitioners in Case 12.023 (Desmond McKenzie) claim that during his time on remand, the victim was forced to share cells with 13 to 15 other prisoners at Chapelton and May Pen lock ups. Further, they claim that during his pre-trial detention in St. Catherine's District Prison, the victim was held with convicted persons contrary to Article 5(4) of the Convention. They also claim that the victim is provided with no educational facilities, and that the State has failed to provide the victim with any opportunities for reform and social readaptation contrary to Article 5(6) of the Convention.

 

275.        The Petitioners' allegations in these cases regarding the victims' conditions of detention appear to be corroborated by general sources of information supplied by the Petitioners in respect of prison conditions in Jamaica. These sources 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. These reports provide information in respect of, inter alia, a lack of medical facilities and health care, 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:

 

Past 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 conditions."

 

Unfortunately, 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.[143]

 

276.        The State has criticized these reports as being out-of-date and indicates that there have been "marked improvements" in prison conditions since the reports were prepared. However, the State has not provided the Commission with any specific information with regard to such improvements.

 

277.        The State has provided specific responses in respect of some of the victims' allegations regarding prison conditions. For example, in Case 12.023 (Desmond McKenzie), the State has alleged that the victim was not detained with convicted prisoners prior to his conviction, as none of the lock ups in which he was held contain convicted persons, and because at St. Catherine's District Prison, they detain convicted persons in separate sections from those on remand. Accordingly, the State denies any violation of Article 5(4) in respect of the victim in this case. Additionally, the State maintains that the victim was not in prison on February 23, 1995, and therefore could not have been beaten by prison staff on that date. This date appears to have been cited by the State in error, because the incidents complained of by the Petitioners occurred between March 5, 1997 and April 3, 1998.

 

278.        With respect to Case 12.044 (Andrew Downer and Alphonso Tracey), the State indicates that the victim Andrew Downer was taken to the hospital for his gun shot wound. The State also claims there is no evidence that the victim's injuries were so dire that he could not be arrested and processed prior to being taken to the hospital, or that he was released from the hospital contrary to medical advice. The State also claims that any allegations of deficiencies in the victims' medical treatment only reflect "difficulties resulting from lack of resources, which affect the prison system. The Ministry does not offer this as an excuse, but as a statement of fact, however unfortunate." Conversely, in Case 12.146 (Anthony Rose), the State denies that medical services at St. Catherine's Prison are inadequate. The State claims that the prison has a Medical Center staffed with two registered medical practitioners, a general practitioner and psychiatrist, a dentist, a nurse, a social worker and medical orderlies. The State also indicates that, when a prisoner makes a complaint of a medical nature, arrangements are made with a medical orderly for that prisoner to be taken to see a doctor at the very earliest possibility. The State further asserts that if the complaint is of a serious nature and a doctor is not on duty at the time and cannot be located, the prisoner is immediately dispatched to the nearby Spanish Town General Hospital.

 

279.        With respect to Case 12.107 (Carl Baker), by communication dated November 19, 1999, the State provided the Commission with the results of its investigation into the allegations contained in the Petitioners' supplemental submission of July 14, 1999. In its communication, the State contends, inter alia, that the prison records do not indicate a warder named "Oniss" being employed on March 16, 1999. The records do, however, indicate that a warder named Mr. Winston Holness was employed at the prison at that time, and Mr. Holness has denied threatening the victim on March 16, 1999 or threatening or antagonizing him on a regular basis. The State indicates further that Warder Willam Burke has denied beating Mr. Baker on April 12, 1999 and that other members of the prison staff responsible for guarding the area where the victim was held on that day have denied having any knowledge of the beating. The State also claims that no search involving warders, police and military personnel was carried out at the prison on April 9, 1999, and that the medical journal and the victim's medical records do not reflect the victim's allegations of illness for the period April 6-11, 1999 or any referrals or medical appointments outstanding. Finally, the State alleges that, in the absence of specific information as to the identity of the warders accused of issuing threats to the victim because he made complaints, and in the absence of any report of the victim being threatened, the State has been unable to investigate these allegations.

 

280.        Apart from the above submissions, the State has not specifically responded to the victims' allegations in respect of the conditions alleged to have been experienced by them. Rather, the State indicated that it would conduct investigations into the victims' claims. The Commission has not received information from the State as to the status or results of any such investigations, with the exception of the State's response to the  petitioners' July 12, 1999 supplemental submission in Case 12.107 (Carl Baker), as noted above.

 

281.        The State has also consistently argued that even in the event that the Petitioners' allegations regarding prison conditions are determined to be accurate, they are not sufficiently serious to render the victims' executions illegal. In support of its position, the State cites the case of Thomas and Hilaire v. The Attorney General of Trinidad and Tobago and others,[144] in which the Judicial Committee of the Privy Council’s decision is interpreted by the State as suggesting that ill-treatment must be in the nature of solitary confinement, shackling, flogging or torture before a subsequent execution may be rendered illegal as cruel or unusual treatment or punishment.

 

282.        With respect to the contravention of Article 5(4) raised in Case 12.023 (Desmond McKenzie), neither party has presented compelling independent or corroborating documentation or information from which the Commission may determine whether the victim was in fact detained with convicted persons. As a consequence, the Commission is confronted with contradictory submissions from the parties on this issue, and considers that it does not have sufficient information to make a determination as to whether the victim in this case was held with convicted inmates during his time in pre-conviction detention. Consequently, the Commission finds no violation of Article 5(4) of the Convention in respect of the victim in Case 12.023 (Desmond McKenzie). In Case 12.126 (Dwight Fletcher), however, the Petitioners have similarly argued that the victim was detained prior to trial with convicted persons at St. Catherine's District Prison, General Penitentiary and Mandeville police station, and the State has indicated that it would investigate this allegation. The State has not provided the Commission with any information concerning the status or results of any such investigation. Consequently, the Commission finds on the basis of the information provided by the Petitioners that Article 5(4) of the Convention has been violated in respect of the victim in Case 12.126 (Dwight Fletcher).

 

283.        With respect to the remaining allegations raised by the Petitioners, the Commission finds that the State has failed to provide specific or sufficient responses so as to effectively answer the Petitioners' allegations in respect of the victims' conditions of detention. Rather, the State has indicated that it will investigate several of the Petitioners' allegations of ill-treatment. The status or results of any such investigations are unknown to the Commission. On the issue of medical conditions, the State suggested in Case 12.146 (Anthony Rose) that medical conditions in St. Catherine's District Prison are adequate, but has failed to respond to the specific allegations raised by the victims in each case. To the contrary, the State has suggested in Case 12.044 (Andrew Downer and Alphonso Tracey) that there may be inadequate resources in providing medical care to prisoners. Finally, the State argues that even in the event that the victims' allegations regarding their conditions of detention are accurate, the conditions would not render the victims' executions unlawful.

 

284.        Where, as in these cases, the State has failed to respond specifically or sufficiently to allegations raised by a petitioner in respect of the conditions of detention and treatment of individual victims, in the Commission's view the State cannot be considered to have refuted the Petitioner’s case. In such cases, the Commission must dispose of the complaints based upon the evidence and submissions before it. In the cases currently before the Commission, this consists substantially of information provided by the Petitioners.

 

285.        The Commission acknowledges that the State provided it with the results of the State's investigation into the allegations of abuse and inadequate medical treatment contained in the Petitioners' supplemental submission of July 12, 1999 in Case 12.107 (Carl Baker). However, the State's information consists largely of bare denials by prison warders of the victim's allegations with no corroborating evidence. Moreover, the State has not provided any information regarding other instances of abuse alleged by the victim, for example the allegations in his initial petition that he was beaten following his arrest on April 11, 1995, and again on March 5, 1997. Nor has the State provided any information concerning Mr. Baker's detention conditions generally.

 

286.        The Commission must next determine whether the conditions of detention, as disclosed by the Petitioners' information, constitute violations of Article 5(1) and 5(2) of the Convention. As outlined above, the Petitioners in the five cases before the Commission have made similar allegations in respect of their conditions of detention. They allege, for example, that the victims have suffered overcrowding, and that sanitation is inadequate because the prisoners' washing facilities and "excrement well" are in the same location. They also claim that the lighting and ventilation in their cells are poor, and that they have been locked in their cells for 23 or more hours per day. The victims in Case Nos. 12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), and 12.146 (Anthony Rose) specifically allege that they have been given inadequate access to medical treatment. Further, the Petitioners in Case Nos. 12.023 (Desmond McKenzie), 12.107 (Carl Baker), 12.126 (Dwight Fletcher) and 12.146 (Anthony Rose) allege that the victims have been abused and threatened by police officers and prison staff.

 

287.        In the Commission’s view, these conditions of detention, when considered in light of the periods of time for which these victims have been held in detention prior to the final disposition of their appeals, fail to satisfy the standard of humane treatment prescribed under Article 5(1) and 5(2) of the Convention. In this regard, the Inter-American Court considered similar conditions of detention in the Suarez-Rosero Case.[145] In that case, the victim alleged, inter alia, that he was held incommunicado for over one month in a damp and poorly ventilated cell measuring five meters by three, together with sixteen other persons. In finding that the victim had been subjected to cruel, inhuman or degrading treatment or punishment contrary to Article 5(2) of the Convention, the Court stated as follows:

 

The mere fact that the victim was for 36 days deprived of any communication with the outside world, in particular with his family, allows the Court to conclude that Mr. Suarez-Rosero was subjected to cruel, inhuman and degrading treatment, all the more so since it has been proven that his incommunicado detention was arbitrary and carried out in violation of Ecuador’s domestic laws. The victim told the Court of his suffering at being unable to seek legal counsel or communicate with his family. He also testified that during his isolation he was held in a damp underground cell measuring approximately 15 square meters with 16 other prisoners, without the necessary hygiene facilities, and that he was obliged to sleep on newspapers; he also described the beatings and threats he received during his detention. For all those reasons, the treatment to which Mr. Suarez Rosero was subjected may be described as cruel, inhuman and degrading.[146]

 

288.        While the victims in the cases under consideration do not claim to have been held incommunicado, they are held in solitary confinement on death row, and the prison conditions under which they have been detained are strikingly similar to those to which the victim in the Surez Rosero case was subjected. The victims have been held in confined conditions with inadequate hygiene, ventilation and natural light, and are allowed out of their cells infrequently. Several of the victims allege to have been abused by police and prison staff, or to have been provided with inadequate medical care. These observations, together with the length of time over which the victims were held in these conditions, suggest that the treatment of the victims has failed to meet the minimum standards under Articles 5(1) and 5(2) of the Convention, which apply irrespective of the nature of the conduct for which the person in question has been imprisoned[147]  and regardless of the level of development of a particular State Party to the Convention.[148]

 

289.        A comparison of the prison conditions of the victims in the cases under consideration with international standards for the treatment of prisoners also suggests that their treatment has failed to respect minimum requirements of humane treatment. In particular, Rules 11, 12, 15, 21, 24 and 25 of the United Nations Standard Minimum Rules for the Treatment of Prisoners[149] provide for the following basic standards in respect of accommodation, hygiene, exercise, and medical treatment for prisoners:

 

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 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.

 

290.        It is evident based upon the victims' allegations that the State has failed to meet these minimum standards of proper treatment of prisoners, in such areas as hygiene, exercise, and medical care. The impact of these conditions is exacerbated by the periods of time for which several of these victims have been incarcerated in connection with their criminal proceedings. 

 

291.        Consequently, in respect of Case Nos. 12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107 (Carl Baker), 12.126 (Dwight Fletcher) and 12.146 (Anthony Rose), the Commission finds that the conditions of detention to which the victims have 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.

 

292.        With respect to the allegation in Case 12.023 (Desmond McKenzie) that the State is responsible for violating Article 5(6) of the Convention, Article 5(6) of the Convention provides that "[p]unishments consisting of deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoners." The petitioners have alleged that the victim has had no access to educational facilities in prison. Consequently, they argue that he has been deprived of any opportunity for reform and social readaptation, as guaranteed under Article 5(6) of the Convention.

 

293.        After considering the matter, the Commission is of the view that Article 5(6) of the Convention, when interpreted in light of the object and purpose of the Convention, should be read to require reform and social readaptation to be considered in the treatment of any prisoners whose liberty has been deprived by the State as a consequence of a criminal conviction. This encompasses prisoners who have been sentenced to death, but whose punishment is not final until the prisoner has exhausted all avenues of appeal available to him, including proceedings before this Commission. Until such avenues have been exhausted, there remains a possibility that the death sentence may be expunged or commuted. During this interim period, then, opportunities of reform and social readaptation for the prisoner should not be prejudiced. Indeed, as is suggested by Rule 40 of the U.N. Standard Minimum Rules for the Treatment of Prisoners,[150] the provision of some degree of educational materials for prisoners is required as a component of the minimum guarantees of humane treatment of all prisoners. Consequently, the State is responsible for violating Article 5(6) of the Convention as regards the victim in Case 12.023 (Desmond McKenzie).

 

294.        Given its conclusions in Part IV.C.2 of this Report that the victims' death sentences contravene 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 whether the length of time for which the victims in the cases before it were held in detention, or the victims' conditions of detention, may also render their executions unlawful. Similarly, the Commission does not consider it necessary to determine whether the method of execution employed in Jamaica constitutes cruel, inhuman or degrading punishment or treatment contrary to Article 5(2) of the Convention.

 

5.          Articles 4 and 8 - Right to a fair trial

 

295.        The petitioners in all of the cases that are the subject of this Report allege violations of Articles 8(1) and 8(2), based upon one or more of several grounds, namely, the manner in which the trial judge conducted the victims’ trial, the absence of adequate time and facilities to prepare the victims' defenses and to communicate freely and privately with counsel, and the absence of competent legal representation during the victims' criminal proceedings. Some of the Petitioners have also alleged that violations of the right of the victims in those cases to a fair trial should also be considered to render their executions unlawful contrary to Article 4 of the Convention.

 

296.        The Commission has outlined in Part III.A.3.d of this Report the victims' arguments in respect of the manner in which their criminal proceedings were conducted. In particular, the Petitioners in Case 12.023 (Desmond McKenzie) complain that the trial judge conducted himself in a manner that deprived the victim of a just and impartial trial. These allegedly included prejudicial comments made by the trial judge to the jury. The petitioners also note that, in its initial observations to their petition, the State "conceded" that the trial judge was not impartial, and suggest that the State cannot now retract its concession for the purposes of the proceeding before the Commission. In Case 12.044 (Andrew Downer and Alphonso Tracey), the Petitioners take issue with the trial judge's decision to permit the prosecution to amend the victims' indictment during the trial to add the offense of murder in the course of robbery. The petitioners in Case 12.107 (Carl Baker) criticize the fact that the trial judge re-sentenced the victim to death after having sentenced him to life imprisonment, when the judge realized that the offenses for which the victim was convicted mandated the death penalty. A review of the records in these cases indicates that the victims raised or could have raised essentially the same arguments in their appeals to the Court of Appeal of Jamaica or the Judicial Committee of the Privy Council.

 

297.        With respect to the State's purported "concession" regarding the trial judge's instructions to the jury in Case 12.023 (Desmond McKenzie), the Commission accepts, based upon the explanation and documentation provided by the State,[151] that the "concession" arose as a result of an error in communicating the State's position to the Commission, and that the State, in good faith, never intended to concede this issue. As a consequence, the Commission will determine this issue based upon the remaining substantive submissions and information provided by each of the parties.

 

298.        After carefully reviewing the victims’ allegations and the information in the records before it, the Commission is of the view that the submissions in the above cases in respect of the manner in which the victims’ trials were conducted are matters which are more appropriately left to the domestic courts of States Parties to the Convention. The Commission considers that it is generally for the courts of States Parties to the Convention to review the factual evidence in a given case and give directions as to the applicable domestic law. Similarly, it is for the appellate courts of States Parties, and not the Commission, to review the manner in which a trial was conducted, unless it is clear that the judge’s conduct was arbitrary or amounted to a denial of justice or that the judge manifestly violated his obligation of impartiality. In the present cases, the Petitioners have failed to demonstrate that the manner in which their criminal proceedings were conducted warrants interference by this Commission. It is not evident, for example, in what respect the re-sentencing of the victim in Case 12.107 (Carl Baker) prejudiced the victims in the context of their cases so as to constitute a violation of the Convention. Indeed, it appears that the defense raised no objection when the re-sentencing occurred.

 

299.        The petitioners in these cases also argue that they were not provided with adequate time and facilities to prepare their defenses because they were not provided with sufficient time and opportunity to consult with their counsel. The petitioners in Case 12.023 (Desmond McKenzie) claim the victim requested, and was denied, an adjournment on the first day of this trial because his counsel was not present. As a consequence, the victim had to conduct a cross-examination of the prosecution's principal witness without the assistance of counsel. In Case Nos. 12.107 (Carl Baker), 12.126 (Dwight Fletcher) and 12.146 (Anthony Rose), the Petitioners argue that the victims were not provided with adequate time to consult with their attorneys. In addition, the Petitioners in Case 12.126 (Dwight Fletcher) claim the victim was detained for 18 months before he was permitted to consult with an attorney, and was not provided with an attorney during his preliminary inquiry.

 

300.        Further, some petitioners argue that they were not provided with competent legal representation. In Case 12.107 (Carl Baker), the Petitioners argue that the victim was not aware of the fact that he faced the death penalty until after he was re-sentenced. They also claim that neither the victim's attorney nor the State ensured the presence at trial of Edmund Morgan, a witness who was the first person to see the victim after the fire. Similarly, in Case 12.126 (Dwight Fletcher), the Petitioners indicate that the victim's trial attorney failed to call the victim's alibi witnesses at trial despite the victim's requests for him to do so, and failed to object to or enter evidence in respect of the prosecution's use of a perjured witness. These victims therefore claim they have been the victims of further violations of their rights under Articles 8(1) and 8(2) of the Convention.

 

301.        After carefully reviewing the records in these cases, the Commission does not find on the material before it that the State is responsible for any violations of Article 8(1) or 8(2) of the Convention in respect of the victims in the above cases, with the exception of Case Nos. 12.023 (Desmond McKenzie) and 12.126 (Dwight Fletcher). In each of these cases, the State fulfilled its burden of providing the victim with legal assistance in the course of their criminal proceedings. In the particular case of the provision of State-funded defense counsel, the Commission considers that it cannot hold the State responsible for actions of which it has no knowledge. The Commission shares the views of the European Court in this regard, which has observed that, as a consequence of the independence of the legal profession from the State, the conduct of the defense is essentially a matter between the defendant and his counsel, whether counsel be appointed under a legal aid scheme or be privately appointed.[152] As a result, the Commission concludes that the competent national authorities are required under Article 8(2)(c) of the Convention to intervene only if a failure by legal aid counsel to provide effective representation is manifest or sufficiently brought to their attention.[153] The records in these cases do not indicate that the victims made it known to State officials that they considered the time and facilities for preparing their defenses or their legal representation to be inadequate, during their trials or during their appeal proceedings. Moreover, it is not apparent that any decisions made by the victims’ solicitors were not rendered in the exercise of their professional judgment, or that it was clear or should have been manifest to the trial or appeal judges that the lawyer’s behavior was incompatible with the interests of justice.[154]

 

302.        In Case 12.023 (Desmond McKenzie), however, the State has not denied that the victim was not granted an adjournment on the first day of his trial despite the absence of this counsel, or that as a consequence the victim was required to cross-examine the prosecution's principal witness without the benefit of counsel. Rather, the State claims that the victim's counsel returned that afternoon. Consequently, on the information available, the Commission can only conclude that the victim was denied counsel at a crucial point in his trial.

 

303.        Similarly, in Case 12.126 (Dwight Fletcher), the State has not denied the Petitioners' allegation that the victim was held in detention for 18 months before he was permitted to contact his attorney and that he was not provided with legal counsel during his preliminary inquiry. Rather, the State has indicated that it would investigate the Petitioner's allegations in this regard. The Commission has not been apprised of the status or results of any such investigation by the State.

 

304.        Article 8(2)(d) of the Convention provides every person accused of a criminal offense has the right to defend himself personally or to be assisted by legal counsel of his own choosing. Article 8(2)(e) of the Convention provides every such person the inalienable right to be assisted by counsel provided by the State, paid or not as the domestic law provides, if the accused does not defend himself personally or engage his own counsel within the time limit established by law. Strict compliance with these and other guarantees of due process are particularly fundamental in the context of trials involving capital offenses. The Commission also considers that these rights apply at all stages of a defendant's criminal proceedings, including the preliminary process, if one exists, leading to his committal for trial, and at all stages of the trial itself.[155] In order for these rights to be effective, a defendant must be provided with an effective opportunity to retain counsel as soon as reasonably practicable following their arrest or detention. The State's obligations in this regard involve not only making legal aid available, but facilitating reasonable opportunities for the defendant to contact and consult with their respective counsel.

 

305.        In Case 12.023 (Desmond McKenzie), the victim was denied legal representation at a significant stage of his trial because the trial judge refused his request for an adjournment. Likewise, in Case 12.126 (Dwight Fletcher), the victim has made uncontradicted assertions that he was held in detention for 18 months before he was permitted to contact an attorney, and that he was not provided with legal representation during his preliminary inquiry. The Commission considers that these constitute serious violations of these victims' rights to counsel as provided for under Article 8 of the Convention. Moreover, these circumstances were apparent to the judge who denied an adjournment to the victim in Case 12.023 (Desmond McKenzie), and should have been apparent to the victim's detaining authorities, as well as to the tribunal that conducted the victim's preliminary inquiry in Case 12.126 (Dwight Fletcher).[156] As a consequence, the Commission finds that the State violated Articles 8(2)(d) and 8(2)(e) of the Convention as regards the victims in Case Nos. 12.023 (Desmond McKenzie) and 12.126 (Dwight Fletcher).

 

306.        Given its conclusions in Part IV.C.2 of this Report that the death sentences imposed on the victims contravene Articles 4, 5 and 8 of the Convention so as to render their executions unlawful, the Commission does not consider it necessary to determine whether the violations of Article 8 determined above may also render the carrying out of the victim's death sentences unlawful contrary to Article 4 of the Convention.

 

 

6.       Articles 8, 24 and 25 – unavailability of legal aid for Constitutional Motions

 

307.        The petitioners in the five cases that are the subject of this Report argue that legal aid is not effectively available for Constitutional Motions before the courts in Jamaica, thus constituting a violation of the right to due process under Article 8, the right to equal protection under Article 24 and the right to judicial protection under Article 25 of the Convention.

 

308.        More particularly, in Part III.A.3.e of this Report, the victims have claimed that Constitutional Motions before the domestic courts in Jamaica often involve sophisticated and complex questions of law which require the assistance of counsel. The victims also claim that they are indigent, and the State does not provide legal aid to pursue Constitutional Motions in Jamaica. The victims state further that it is extremely difficult to find Jamaican lawyers who will pursue Constitutional Motions on a pro bono basis. As a consequence, the Petitioners allege that the State's failure to provide legal aid in order to present Constitutional Motions constitutes a denial of access to the court and to effective remedies, in fact as well as in law.

 

309.        In this connection, the Petitioners assert that a Constitutional Motion in the context of the victims' cases constitutes a criminal proceeding for which Article 8(2)(e) of the Convention requires the State to provide legal assistance. They argue that a Constitutional Motion should be considered a criminal proceeding because a decision on such a motion could influence and change a ruling on a previous criminal proceeding. They also argue that the fact that some attorneys take pro bono cases does not relieve Jamaica of the obligation to provide legal aid with regard to Constitutional Motions.

 

310.        In response to these contentions, the State has argued in Case Nos. 12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107 (Carl Baker), and 12.126 (Dwight Fletcher), that it is not required to grant legal aid for Constitutional Motions because under Article 8(2)(e) of the Convention, the State only has a duty to give legal aid in respect of criminal proceedings, and a Constitutional Motion is not a criminal proceeding. The State argues further that in any event, the absence of legal aid for Constitutional Motions is not an absolute bar to presenting Constitutional Motions, because condemned prisoners have in the past been able to seek Constitutional Motions without legal aid. The State cites, inter alia, the case of Pratt and Morgan v. A.G. for Jamaica[157] in support of its position.

 

311.        Based upon the material before it, the Commission is satisfied that Constitutional Motions dealing with legal issues of the nature raised by the victims in their proceedings before the Commission, such as the right to due process and the adequacy of the victims' conditions of detention, 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 that the State does not provide legal aid to individuals in Jamaica to bring Constitutional Motions, and that the victims in the cases at issue are indigent and are therefore not otherwise able to secure legal representation for Constitutional Motions.

 

312.        While the State has indicated that condemned prisoners have in the past brought Constitutional Motions with the assistance of pro bono counsel, there is no evidence that such assistance is effectively available to these victims. There is also no evidence of any other avenues through which condemned prisoners are able to effectively raise alleged violations of their rights under the Jamaican Constitution or under the American Convention before the courts in Jamaica. In any event, the Commission considers that in capital cases, where Constitutional Motions relate to the procedures and conditions through which the death penalty has been imposed, the high standards of procedural fairness applicable in capital cases do not properly permit the effective protection of those rights to be left to the random prospect of whether an attorney may be willing or available to take the defendant's case without charge. Judicial protection of the right to life and other fundamental rights of condemned prisoners must be guaranteed through the effective provision of legal aid for Constitutional Motions.[158] The State cannot be said to have afforded such protection to the victims in the cases noted above.

 

313.        The Commission considers that in the circumstances of the present cases, the State's obligations in respect of 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 Supreme Court of Jamaica must conform with the requirements of a fair hearing in accordance with Article 8(1) of the Convention. In the circumstances of the cases before the Commission, the Court would be called upon to determine whether the victims' criminal convictions violated their rights under the Constitution of Jamaica. In such cases, the application of a requirement of a fair hearing in the Supreme Court should be consistent with the principles in Article 8(2) of the Convention.[159] 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 cases, the effective unavailability of legal aid has denied the victims the opportunity to challenge the circumstances of their convictions under the Constitution of Jamaica in a fair hearing, and therefore has contravened Article 8(1) in respect of those victims.[160]    

 

314.        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.”[161] 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.[162] 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.

 

315.        By failing to make legal aid available to the victims to pursue Constitutional Motions in relation to their criminal proceedings, the State has effectively barred recourse for the victims to a competent court or tribunal in Jamaica for protection against acts that potentially violate their fundamental rights under the Constitution of Jamaica and under the Convention. As a consequence, the State has failed to fulfil its obligations under Article 25 of the Convention as regards the victims in these cases.

 

316.        Accordingly, the Commission concludes that the State has failed to respect the rights of the victims in Case Nos. 12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107 (Carl Baker), 12.126 (Dwight Fletcher) and 12.146 (Anthony Rose) under Article 8(1) of the Convention by denying the victims an opportunity to challenge the circumstances of their convictions under the Constitution of Jamaica in a fair hearing. The Commission also concludes that the State has failed to provide the victims with simple and prompt recourse to a competent court or tribunal for protection against acts that violate their fundamental rights recognized by the constitution or laws of the state concerned or by the Convention, and has therefore violated the rights of these victims to judicial protection under Article 25 of the Convention.

 

317.        In light of the above conclusions, the Commission does not consider it necessary to determine whether the failure of the State to provide legal aid for Constitutional Motions violates Article 24 of the Convention.

 

V.      APPROVAL OF THE ARTICLE 50 REPORT AND IMPLEMENTATION OF THE COMMISSION'S RECOMMENDATIONS

 

318.        The Commission examined this case in the course of its 105th session, and on November 19, 1999, adopted Report N 131/99, pursuant to Article 50 of the American Convention. In its report, it concluded that Jamaica was responsible for:

 

a.                 violating the rights of the victims in Case Nos. 12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey); 12.107 (Carl Baker); 12.126 (Dwight Fletcher) and 12.146 (Anthony Rose) under Articles 4(1), 5(1), 5(2) and 8(1), in conjunction with violations of Article 1(1) of the American Convention, by sentencing these victims to a mandatory death penalty.

 

b.                 violating the rights of the victims in Case Nos. 12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107 (Carl Baker), 12.126 (Dwight Fletcher) and 12.146 (Anthony Rose) under Article 4(6) of the Convention, in conjunction with violations of Article 1(1) of the Convention, by failing to provide these victims with an effective right to apply for amnesty, pardon or commutation of sentence.

 

c.                 violating the rights of the victims in Case Nos. 12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107 (Carl Baker), and 12.126 (Dwight Fletcher) under Articles 7(5) and 8(1) of the Convention, in conjunction with violations of Article 1(1) of the Convention, by reason of the delays in trying the victims.

 

d.                 violating the right of the victims in Case Nos. 12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey) and 12.126 (Dwight Fletcher) under Article 7(5) of the Convention, in conjunction with violations of Article 1(1) of the Convention, by failing to bring the victims promptly before a judge subsequent to their detention.

 

e.                 violating the rights of the victims in Case Nos. 12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107 (Carl Baker), 12.126 (Dwight Fletcher) and 12.146 (Anthony Rose) under Articles 5(1) and 5(2) of the Convention, in conjunction with a violation of Article 1(1) of the Convention, because of these victims' conditions of detention.

 

f.                  violating the rights of the victim in Case 12.126 (Dwight Fletcher) under Article 5(4) of the Convention, in conjunction with a violation of Article 1(1) of the Convention, by detaining the victim with convicted persons prior to his trial and conviction.

 

g.                 violating the rights of the victim in Case 12.023 (Desmond McKenzie) under Article 5(6) of the Convention, in conjunction with a violation of Article 1(1) of the Convention, by depriving the victim of opportunities for reform and social readaptation.

 

h.                 violating the rights of the victim in Case Nos.12.023 (Desmond McKenzie) and 12.126 (Dwight Fletcher), under Articles 8(2)(d) and 8(2)(e) of the Convention, in conjunction with a violation of Article 1(1) of the Convention, by denying the victims legal counsel during portions of their criminal proceedings.

 

i.                   violating the rights of the victims in Case Nos. 12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107 (Carl Baker), 12.126 (Dwight Fletcher) and 12.146 (Anthony Rose) under Articles 8 and 25 of the Convention, in conjunction with violations of Article 1(1) of the Convention, by failing to make legal aid available to these victims to pursue Constitutional Motions.

 

319.        In addition, the Commission recommended that Jamaica:

 

a.                 Grant the victims in the cases that are the subject of this Report an effective remedy which includes commutation of sentence and compensation.

 

b.                 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 Convention, including and in particular Articles 4, 5 and 8.

 

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

 

d.                 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.

 

320.        On December 1, 1999, the Commission transmitted Report N 131/99 to the State, and requested that the Government of Jamaica inform the Commission within two months as to the measures adopted to comply the recommendations made to resolve the situation denounced.

 

321.         By communication dated February 1, 2000, the State informed the Commission that it had not completed its examination of the Commission's report and was therefore unable to respond to the Commission by the stipulated deadline. The State also indicated that it would "submit its response to the report as soon as it has completed its study." As of March 1, 2000, the date of expiration of the 3-month period under Article 51(1) of the Convention, the Commission had not received a response from the State to Report N 131/99.

 

VI.          CONCLUSIONS

 

The Commission, based on the foregoing considerations of fact and law, and in the absence of a response from the State to Report N 131/99, ratifies its conclusions that:

 

322.        The State is responsible for violating the rights of the victims in Case Nos. 12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey); 12.107 (Carl Baker); 12.126 (Dwight Fletcher) and 12.146 (Anthony Rose) under Articles 4(1), 5(1), 5(2) and 8(1), in conjunction with violations of Article 1(1) of the American Convention, by sentencing these victims to a mandatory death penalty.

 

323.        The State is responsible for violating the rights of the victims in Case Nos. 12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107 (Carl Baker), 12.126 (Dwight Fletcher) and 12.146 (Anthony Rose) under Article 4(6) of the Convention, in conjunction with violations of Article 1(1) of the Convention, by failing to provide these victims with an effective right to apply for amnesty, pardon or commutation of sentence.

 

324.        The State is responsible for violating the rights of the victims in Case Nos. 12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107 (Carl Baker), and 12.126 (Dwight Fletcher) under Articles 7(5) and 8(1) of the Convention, in conjunction with violations of Article 1(1) of the Convention, by reason of the delays in trying the victims.

 

325.        The State is responsible for violating the right of the victims in Case Nos. 12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey) and 12.126 (Dwight Fletcher) under Article 7(5) of the Convention, in conjunction with violations of Article 1(1) of the Convention, by failing to bring the victims promptly before a judge subsequent to their detention.

 

326.        The State is responsible for violating the rights of the victims in Case Nos. 12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107 (Carl Baker), 12.126 (Dwight Fletcher) and 12.146 (Anthony Rose) under Articles 5(1) and 5(2) of the Convention, in conjunction with a violation of Article 1(1) of the Convention, because of these victims' conditions of detention.

 

327.        The State is responsible for violating the rights of the victim in Case 12.126 (Dwight Fletcher) under Article 5(4) of the Convention, in conjunction with a violation of Article 1(1) of the Convention, by detaining the victim with convicted persons prior to his trial and conviction.

 

328.        The State is responsible for violating the rights of the victim in Case 12.023 (Desmond McKenzie) under Article 5(6) of the Convention, in conjunction with a violation of Article 1(1) of the Convention, by depriving the victim of opportunities for reform and social readaptation.

 

329.        The State is responsible for violating the rights of the victim in Case Nos. 12.023 (Desmond McKenzie) and 12.126 (Dwight Fletcher), under Articles 8(2)(d) and 8(2)(e) of the Convention, in conjunction with a violation of Article 1(1) of the Convention, by denying the victims legal counsel during portions of their criminal proceedings.

 

330.        The State is responsible for violating the rights of the victims in Case Nos. 12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107 (Carl Baker), 12.126 (Dwight Fletcher) and 12.146 (Anthony Rose) under Articles 8 and 25 of the Convention, in conjunction with violations of Article 1(1) of the Convention, by failing to make legal aid available to these victims to pursue Constitutional Motions.

 

VII.          RECOMMENDATIONS

 

331.          Based on the analysis and the conclusions in the present report,

 

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS REITERATES THE FOLLOWING RECOMMENDATIONS TO THE STATE OF JAMAICA:

 

1.          That it grant the victims in the cases that are the subject of this Report an effective remedy which includes commutation of sentence and compensation;

 

2.          That it 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 Convention, including and in particular Articles 4, 5 and 8;

 

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

 

4.          That it 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.

 

VIII.          PUBLICATION

 

332.          The Commission transmitted the report adopted pursuant to Article 51 of the American Convention to the State and to the Petitioners on March 7, 2000, and gave the State one month to take the necessary measures in order to comply with the Commission's recommendations. The State failed to present a response within the time limit. On April 11, 2000, however, the State delivered to the Commission an "interim response" to the Commission's Report N 23/00. In responding to the Commission's recommendations, the State indicated that it was not prepared to commute the sentences passed on the six victims in these cases based upon the conclusions set forth by the Commission in its report. It also indicated that prisoners sentenced to death are entitled to offer pleas in mitigation of their sentence through the Prerogative of Mercy procedure under Articles 90 and 91 of the Jamaican Constitution. The State claims that a number of death row prisoners have had their death sentences commuted based on this procedure, in most cases on the basis of the length of stay on death row, and also on the basis of such factors as a supervening mental incapacity, physical injury and recommendations made by the presiding judge in the relevant case. Finally, the State indicated that it has recently promulgated the Jamaican Legal Aid Act, which the State claims improves the legal resources available to poor persons by giving priority to those persons charged with breaches of the criminal law and making provision to encompass representation for persons involved in civil actions and constitutional motions, "as resources permit". According to the State, the Legal Aid Act is expected to result in more rigorous protection of constitutional rights in criminal law matters. 

 

          333.          Based upon the foregoing considerations, and in conformity with Article 51(3) of the American Convention and Article 48 of its Regulations, the Commission decides to reiterate the conclusions and 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, pursuant to its mandate, shall continue evaluating the measures taken by the Jamaican State with respect to the recommendations at issue, until they have been fully implemented. This will include seeking further information respecting the status and provisions of the Jamaican Legal Aid Act and the manner in which this legislation is applied by the State in relation to recourse to Constitutional Motions in capital punishment cases.

 

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

 

[ Table of Contents | Previous | Next ]


[86] 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.”

[87] 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 Tyrer v. United Kingdom (1978) 3 E.H.R.R. 1 at para. 31.

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

[89] Lubuto v. Zambia (N 390/1990), U.N. Doc. CCPR/C/55/D/390/1990/Rev. 1, (October 1995) (U.N. Human Rights Committee), para. 7.2.

[90] Article 6 of the ICCPR provides as follows:

1.       Every human being as the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

2.       In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court.

3.       When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Convention to derogate in any way from any obligation assumed under the provisions of the Convention on the prevention and punishment of the Crime of Genocide.

4.       Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

5.       Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.

6.       Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.

[91] 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, including genocide. 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.

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

[93] 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.”).

[94] 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.”).

[95] Id., at 950, n. 4.

[96] 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.” Id. 

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

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

[99] 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.

[100] Id. pp. 32-36 (footnotes included). 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.  

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

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

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

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

[105] 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.

[106] 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).

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

[108] Id. at 35-36.

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

[110] Id. at 509-510.

[111] Id. at 516.

[112] Id. at 515.

[113] Id. at 534.

[114] R. v. Cunningham [1982] A.C. 566.

[115] The Jamaica (Constitution) Order in Council 1962, Second Schedule, Sections 90, 91.

[116] 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..

[117] 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.").

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

[119] 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.).

[120] 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).

[121] I/A Comm. H.R., Jorge Luis Bernstein and others, Annual Report 1997, p. 244, para. 12.  The Commission notes that the Constitution of Jamaica has a clause which declares that any person who is arrested or detained "…shall be brought without delay before a court…." Constitution of Jamaica, 1962, Section 15(2) "Any person who is arrested or detained shall be informed as soon as reasonably practicable, in a language which he understands, of the reasons for his arrest or detention." [emphasis added]  Article 15(3) "Any person who is arrested or detained (a) for the purpose of bringing him before a court in execution of the order of a court; or (b) upon reasonable suspicion of his having committed or being about to commit a criminal offence, and who is not released, shall be brought without delay before a court; and if any person arrested or detained upon reasonable suspicion of his having committed or being about to commit a criminal offence is not tried within a reasonable time, then, without prejudice to any further proceedings which may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial." [emphasis added]

[122] Id., para. 11, [citing I/A Comm. H.R., Second Report on the Situation of Human Rights in Suriname. OEA/Ser.L/V/II.66, doc. 21/Rev.1, 1985, pages 23 and 24.]

[123] Id. at para. 24.

[124] Id., at pp. 247-248.

[125] Peter Grant v. Jamaica, Communication N 597/1994, U.N. Doc. N CCPR/C/56/D/597/1994 (1996).

[126] International Covenant on Civil and Political Rights, 19 Dec. 1966, 999 U.N.T.S. 171, Article 9(3) "Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release.  It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment."

[127] U.N.H.R.C., Paul Kelly v. Jamaica, Communication N 253/1987.

[128] Convention for the Protection of Human Rights and Fundamental Freedoms, E.T.S. N 5, (4 November 1950), Article 5(3) (providing that "[e]veryone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial").

[129] Eur. Court H.R., Case of Brogan and Others, Ser. A, vol. 145, 29 Nov. 1988, at para. 58.

[130] Id. at para. 62.

[131] Eur. Court H.R., Case of Koster v. The Netherlands, Ser. A, Vol. 221, 28 Nov. 1991, at paras. 24-25.

[132] Jorge Luis Bronstein and others, supra.

[133] International Covenant on Civil and Political Rights, Art. 9(3), supra.

[134] European Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 5(3), supra.

[135] I/A Court H.R., Suarez Rosero Case, Judgment, 12 November 1997, Annual Report 1997, p. 283,  para. 70.

[136] Id., para. 71.

[137] Id., 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 Nos. 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 N 9, p. 40.

[138]  See Report 2/97, Cases Nos. 11.205, 11.236, et al. (Argentina), supra.

[139]  Report N 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 N 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 detention.”). 

[140]  See e.g. Surez Rosero Case, supra , p. 300, para. 73 (finding that a period of delay of 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 N 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).

[141] See similarly U.N.H.R.C., Andre Fillashe v. Bolivia, Communication N 336/1988, U.N. Doc. CCPR/C/43/D/336/1988 (1991), para. 6.5 (finding that the fact that the investigation into a criminal case in Bolivia was carried out by way of written proceedings did not justify the delay in bringing a defendant to trial).

[142] The affidavit filed by the Petitioners in Case 12.146 (Anthony Rose) is illustrative of the allegations regarding conditions of detention on death row. In his affidavit, the victim states as follows:

4. My cell is approximately 8 ft X 5 ft and I am constantly held in solitary confinement. I sleep on a slab of concrete as I am not provided with a mattress. There is no other furniture in my cell except for a water jug and a bucket, which I use as a toilet.

5. The lighting in my cell is insufficient. There is no electric lighting and whenever I go out into the sunlight, my eyes are extremely sensitive and hurt me. There is hardly any ventilation in my cell, which becomes extremely hot during the day. There is no integral sanitation in my cell which is full of cockroaches and other insects. Right in front of my cell there is a gutter full of waste water which has a foul odour. The gutter is always full and I find myself eating and sleeping in conditions that constantly stench.

6. I receive fresh water every day, however, some times the water is full of impurities, which often results in me suffering from diarrhea. The food is deplorable. Meat is invariably spoiled and often cannot be eaten.

7. I am allowed out of my cell each day for one hour. During this time I am expected to wash my clothes, bathe and take physical exercise. I have made two requests to see a doctor at the prison and on each occasion it took approximately four months before I was actually seen by the doctor.

[143] Americas Watch, Human Rights in Jamaica: Death Penalty, Prison Conditions and Police Violence, News from Americas Watch, April 1993, Vol. 5, N 3, p. 3

[144] Thomas and Hilaire v. The Attorney General of Trinidad and Tobago and others, Case 60 of 1998 (Judicial Committee of the Privy Council).

[145] I/A Court H.R., Surez Rosero Case, Judgment, 12 November 1997, Annual Report 1997, at p. 283.

[146] Id., at pp. 302-3, para. 98.

[147] See e.g. Eur. Court H.R., Ahmed v. Austria, Judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI, p. 220, para. 38.

[148] See similarly U.N.H.R.C., Mukong v. Cameroon, Communication N 458/1991, U.N. Doc. N 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 development).

[149] 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).

[150] U.N. Standard Minimum Rules for the Treatment of Prisoners, supra, Rule 40 (providing that "[e]very 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.").

[151] By communication dated November 2, 1998, the State transmitted to the Commission a copy of the Memorandum of instructions dated July 29, 1998 from the Office of the Attorney General of Jamaica to Jamaica's Mission to the OAS, which did not contain a "concession" that the judge's instructions to the jury in the victim's case were biased.

[152] Eur. Court H.R., Kamasinski v. Austria, 19 December 1989, Series A. N 168 para. 65. See similarly U.N.H.R.C., Young v. Jamaica, Communication N 615/1995 (1997).

[153] Kamasinski  v. Austria, supra.

[154] See e.g. Anthony McLeod v. Jamaica, supra, at para. 6.1.

[155] See similarly U.N.H.R.C., Paul Kelly v Jamaica, Communication N 253/1987 (1991).

[156] Indeed, the State has indicated that section 3 of the Poor Prisoners' Defence Act in Jamaica obliges a Resident Magistrate or a Judge of the Supreme Court to grant an indigent accused a legal aid certificate which entitles them to free legal aid in preparing and conducting his defence.

[157] Pratt v. Attorney General for Jamaica [1994] 2 A.C. 1 (P.C.).

[158] See similarly U.N.H.R.C., Currie v. Jamaica , Communication N 377/1989, U.N.Doc. 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); 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.).

[159] 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. [emphasis added]

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.).

[160] See 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).

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

[162] 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. 30.