REPORT
Nº 108/00 I. SUMMARY
1. On May 16,
1997, the Inter-American Commission on Human Rights (the “Commission”)
received a petition from the Center for Justice and International Law (the
“Petitioners”) against the Government of the United States of America
(the "State" or “United States”). The petition was presented
on behalf of Mr. Ramón Martinez Villareal ("Mr. Martinez Villareal"
or "Martinez Villareal"), a Mexican national who is incarcerated
on death row in Florence Prison, in the State of Arizona. The petition and
subsequently information indicate that on April 27, 1983, Mr. Martinez
Villareal was convicted of two counts of first degree murder and one count
of first degree burglary, and was sentenced to death on May 20, 1983 for
his murder convictions. The initial petition also stated that Mr. Martinez
Villareal was scheduled to be executed on May 21, 1997, although his
execution has been subsequently postponed on various occasions in
connection with further domestic proceedings and remains outstanding. 2. The Petitioners
have alleged that Mr. Martinez Villareal has exhausted domestic remedies
in relation to the claims raised before the Commission, or that he is not
required to exhaust domestic remedies, as provided under Article 37 of the
Commission's Regulations. Respecting the substance of their complaints,
the Petitioners claim that the State has violated Mr. Martinez
Villareal’s rights under Articles I, XVIII and XXVI of the American
Declaration of the Rights and Duties of Man (hereinafter the
"American Declaration"), because his attorney failed to provide
him with effective representation, and because Mr. Martinez Villareal
suffers from mental illness and was therefore incompetent to stand trial
or to be sentenced to death, and remains incompetent to be executed. The
Petitioners have also alleged that the State is responsible for further
violations of Mr. Martinez Villareal's rights under Articles I, XVIII and
XXVI of the American Declaration because of the State’s failure to
comply with its obligations under Article 36 of the Vienna Convention on
Consular Relations. In addition, the Petitioners have alleged further
violations of Mr. Martinez Villareal's rights under Articles XVIII and
XXVI as a consequence of the delay in the rendering of a final decision in
his case. Finally, the Petitioners claim violations of Mr. Martinez
Villareal's right to equality before the law under Article II of the
American Declaration because of the manner in which the death penalty is
administered by states in the United States. 3. As set forth in
this Report, having examined the information provided by the parties and
their contentions on the question of admissibility, and without prejudging
the merits of the matter, the Commission decided to admit the present
petition, and continue with the analysis of the merits of the case. II. PROCEEDINGS
BEFORE THE COMMISSION
4. Upon receipt of
the Petitioners' petition, the Commission, by note dated May 19, 1997,
advised the State that the Commission had been informed of Mr. Martinez
Villareal's pending May 21, 1997 execution, and requested that the State
stay the execution for humanitarian reasons until the Commission had an
opportunity to investigate the matter, or alternatively to commute Mr.
Martinez Villareal's death sentence to one of life imprisonment. 5. Subsequently,
on May 20, 1997, the Commission decided to open Case No. 11.753 and
transmitted the pertinent parts of the petition to the Government of the
United States by means of a note of the same date. The Commission
requested the State's observations within 90 days as established by the
Commission's Regulations. Also by note dated May 20, 1997, the Commission
informed the Petitioners that a case had been opened in respect of their
petition, that the State had been advised of the situation set forth in
their communication, and that the Commission requested that the State stay
Mr. Martinez Villareal's execution until it had the opportunity to
investigate the allegations in the petition, or alternatively commute his
death sentence. 6. By
communication dated July 8, 1997, the Petitioners delivered to the
Commission further information respecting Mr. Martinez Villareal's
situation. In a note dated July 22, 1997, the Commission transmitted the
pertinent parts of the Petitioners' July 8, 1997 observations to the
State, with a response requested within 90 days. 7. In a note dated
December 18, 1997, the State responded to the Petitioners' July 8, 1997
observations, in which the State argued that Mr. Martinez Villareal had
failed to exhaust domestic remedies, and accordingly that the Commission
should decline to consider the case. The State also provided observations
on the substance of the Petitioners' allegations. The pertinent parts of
the State's response were transmitted to the Petitioners by note dated
January 7, 1998, with observations requested within 30 days. By
communication dated March 19, 1998, the Petitioners requested that the
deadline for their observations be extended until March 29, 1998. 8. By
communication dated March 30, 1998, the Petitioners delivered to the
Commission observations respecting the State's December 18, 1997
communication. In a note dated March 31, 1998, the Commission transmitted
the pertinent parts of the Petitioners' observations to the State, with a
response requested within 30 days. 9. The State
responded by note dated September 8, 1998, in which it provided additional
information on the admissibility of Mr. Martinez Villareal's case. By
communication dated November 25, 1998, the Commission transmitted the
pertinent parts of the State's observations to the Petitioners, with a
response requested within 30 days. 10.
In a communication dated January 20, 1999, the Petitioners
delivered to the Commission a response to the State's September 8, 1998
observations. By note dated February 5, 1999, the Commission transmitted
the pertinent parts of the Petitioners' January 20, 1999 observations to
the State, with a response requested within 30 days. 11.
By communication dated October 6, 1999, the State submitted to the
Commission observations on the Petitioners' January 20, 1999 response, in
which the State reiterated that Mr. Martinez Villareal had failed to
exhaust his domestic remedies. In a note dated October 20, 1999, the
Commission transmitted the pertinent parts of the State's observations to
the Petitioners, with a response requested within 30 days. 12.
On November 19, 1999, the Petitioners delivered observations on the
State's October 6, 1999 response, in which they reiterated their claim
that Mr. Martinez Villareal's petition was admissible, and requested that
the Commission adopt a formal report on admissibility expeditiously. The
Commission transmitted the Petitioners' observations to the State in a
letter dated January 31, 2000, and requested a response within 30 days.
13.
In a note dated August 14, 2000 to the Petitioners, the Commission
requested that the Petitioners provide the Commission with information
concerning certain aspects of Mr. Martinez Villareal's case, with a
response requested within 30 days. The Commission subsequently reiterated
its August 14, 2000 request for information in a further note to the
Petitioners dated October 24, 2000. By letter dated November 13, 2000, the
Petitioners responded to the Commission's previous requests for
information. III.
POSITIONS OF THE PARTIES A.
Position of the Petitioners 14.
In relation to the admissibility of their complaint, the
Petitioners claim that Mr. Martinez Villareal has exhausted his domestic
remedies in the United States under Article 37(1) of the Commission's
Regulations. The Petitioners also contend that the State has failed to
demonstrate pursuant to Article 37(3) of the Commission's Regulations that
remedies under domestic law have not previously been exhausted, and that
Mr. Martinez Villareal's allegations fall within one or more of the
exemptions to the exhaustion of domestic remedies under Article 37(2) of
the Commission's Regulations. 15.
In their initial petition and subsequent observations, the
Petitioners have provided information concerning the procedural history of
Mr. Martinez Villareal's criminal proceedings. In this connection, they
indicate that Mr. Martinez Villareal was found guilty by the Santa Cruz
Superior Court of Arizona of two counts of first degree murder and one
count of first degree burglary in April 1983, and was sentenced to death
for the murder convictions on May 20, 1983. The Arizona Supreme Court
subsequently dismissed Mr. Martinez Villareal's appeals from his
conviction and sentence. 16.
The Petitioners also indicate that Mr. Martinez Villareal brought
several petitions for post-conviction relief in the Arizona state courts.
His first such petition was summarily denied by the Santa Cruz Superior
Court in April 1, 1986, his second was denied in June 1988, and his third
was denied in August 1991. The Arizona Supreme Court denied all petitions
for review of these decisions, in orders entered on June 9, 1986, February
9, 1989 and April 8, 1992. 17.
In addition, according to the Petitioners, Mr. Martinez Villareal
brought several petitions for writs of habeas corpus in the U.S. federal
courts. Mr. Martinez Villareal's first three such applications were denied
by the U.S. District Court for the District of Arizona in June 1986, the
third such petition being the first occasion on which Mr. Martinez
Villareal alleged ineffective assistance of prior counsel. 18.
The Petitioners also contend that Mr. Martinez Villareal brought a
fourth federal petition in U.S. District Court for a writ of habeas corpus
in March 1993, which was the first occasion on which Mr. Martinez
Villareal alleged that he did not have the mental capacity to appreciate
the nature of his sentence. In addressing this petition, the District
Court issued a writ of habeas corpus and vacated Mr. Martinez Villareal's
death sentence, on the basis that Mr. Martinez Villareal did not receive
effective assistance of counsel. On appeal, however, the U.S. Court of
Appeals for the Ninth Circuit in 1996 reversed the District Court's
decision, ordering that the petition for habeas corpus be denied due to
procedural errors committed by Mr. Martinez Villareal's attorneys during
his first and second post-conviction proceedings. 19.
The Petitioners further indicate that a special hearing took place
in the Arizona Superior Court on April 6 and May 6 to May 8, 1997
respecting Mr. Martinez Villareal's competence to be executed, and that
the Court ultimately found that Mr. Martinez Villareal suffered from
mental illness, mental retardation, and/or organic brain damage, but that
he was competent to be executed. According to the Petitioners, Mr.
Martinez Villareal petitioned the Superior Court in relation to this
proceeding to allow him to obtain and admit the results of a Magnetic
Resonance Image (MRI) of his brain. The Petitioners claim that an MRI is
equivalent to an x-ray of soft tissue, in this case the brain, and could
conclusively show whether or not Mr. Martinez Villareal is suffering from
deterioration of the frontal lobe. The Petitioners allege that the
Superior Court denied Mr. Martinez Villareal's request and ruled that an
MRI would be inadmissible. 20.
A petition for special action was subsequently filed in the Arizona
Supreme Court to review the trial court's determination of competency, and
the Supreme Court held in a May 16, 1997 decision that the finding was
correct, although two concurring justices noted that "the evidence
makes it clear that defendant is mildly retarded and seriously mentally
ill" and stated that "this is a case which raises serious doubts
about the propriety of the death sentence." 21.
In addition, the Petitioners indicate that Mr. Martinez Villareal
brought a further petition for a writ of habeas corpus in the U.S.
District Court in May 1997 relating to the Arizona Supreme Court’s
determination on his competency to be executed, and in this connection
brought a motion in District Court requesting the means to examine Mr.
Martinez Villareal in preparation for his petition. In disposing of his
petition, the District Court expressed, "serious concerns…as to
whether Petitioner is presently capable of understanding 1) that he is to
be punished by execution, and 2) why he is being punished", but
nevertheless found that it did not have the jurisdiction to consider Mr.
Martinez Villareal's constitutional challenge. 22.
Mr. Martinez Villareal subsequently filed challenges to the
District Court's decision in the Ninth Circuit U.S. Court of Appeal. On
June 23, 1997, the Ninth Circuit ruled in favor of Mr. Martinez Villareal,
and remanded his case to the District Court for a hearing on his
competency to be executed claim. The state of Arizona sought review of the
decision of the Ninth Circuit, and in May 1998 the U.S. Supreme Court
affirmed the Ninth Circuit's decision on Mr. Martinez Villareal's ability
to bring a successive habeas corpus petition. The U.S. District Court for
Arizona subsequently considered Mr. Martinez Villareal's habeas
application, and denied it in an August 6, 1999 decision. Mr. Martinez
Villareal appealed this determination to the Ninth Circuit Court of
Appeals, which on June 17, 2000 entered an order vacating the U.S.
District Court's decision and remanding the case to the District Court for
further proceedings. Subsequently, on October 30, 2000, the District Court
entered an order dismissing Mr. Martinez Villareal's petition for a writ
of habeas corpus without prejudice. 23.
The Petitioners also indicate in their observations that on May 19,
1997, the Petitioner filed a Petition for Post-conviction Relief in the
Santa Cruz Superior Court, as well as a motion to Recall Mandate, Motion
to Vacate Prior Orders Denying Petitions for Review, and Motion for a Stay
of Execution in the Arizona Supreme Court. According to the Petitioners in
their July 1997 observations, the motions were combined and procedural
directions were issued by the Supreme Court. 24.
In light of this procedural history, the Petitioners claim that the
five distinct violations alleged in their petition before the Commission
are admissible under Article 37 of the Commission's Regulations: the
failure of the State to provide notice of consular assistance under
Article 36(1)(b) of the Vienna Convention on Consular Relations;[1]
the failure of the State to provide and guarantee effective assistance of
counsel; the failure of the State to take into account Mr. Martinez
Villareal's mental competence at the guilt/innocence and penalty phases of
his criminal proceeding; the prohibition against executing Mr. Martinez
Villareal due to his mental incompetence; and the delay in Mr. Martinez
Villareal's execution. 25.
With respect to the first alleged violation, the Petitioners have
noted that the State's position, as expressed in respect of the Request
for Advisory Opinion OC-16/99 before the Inter-American Court of Human
Rights, has been that Article 36 of the Vienna Convention on Consular
Relations does not vest a right in a detained foreign national. The
Petitioners also claim that the State has demonstrated through practice
that it will not recognize such a right, nor provide a remedy for its
violation. Further, the Petitioners claim that Mr. Martinez Villareal
attempted to raise this claim before the domestic courts as soon as he
became aware of it, but that he was precluded from doing so because the
claim had not been raised during his trial or his initial appeal.
Accordingly, the Petitioners contend that Mr. Martinez Villareal has been
denied access to remedies under domestic law or has been prevented from
exhausting them as prescribed under Article 37(2) of the Commission's
Regulations in relation to the alleged violation of Article 36 of the
Vienna Convention on Consular Relations, and therefore that this aspect of
their claim should be considered admissible. 26.
In relation to the second alleged violation, the Petitioners claim
that once Mr. Martinez Villareal had obtained attorneys who could
adequately present his claims of ineffective assistance of counsel and the
related underlying claims of mental competence, his attempts to raise
these issues were barred by domestic courts on procedural grounds. In
particular, the Petitioners indicate that the Arizona Supreme Court
rejected Mr. Martinez Villareal's effective representation claims on the
basis of procedural default, because the issue had not been raised in his
previous applications for post-conviction relief. Further, the Ninth
Circuit U.S. Court of Appeals subsequently endorsed this
"preclusion" finding in a subsequent habeas proceeding before
it. Hence, the Petitioners argue that the victim has been precluded from
raising his substantive due process claim, or the corollary claim of
incompetence as it relates to the guilt/innocence and sentencing phases of
his proceeding, that he has no available remedy, and therefore that the
domestic legislation of the state concerned does not afford due process of
law for the protection of these rights, as provided for under Article
37(2)(a) of the Commission's Regulations. 27. With respect to the third alleged violation, the Petitioners contend, as with the second issue, that the Arizona Supreme Court would not entertain the issue of the Petitioners' mental capacity and its impact on the guilt/innocence and sentencing stages of Mr. Martinez Villareal's criminal proceeding by virtue of procedural default, and that the Ninth Circuit U.S. Court of Appeals subsequently deferred to this decision. Consequently, they argue that no available domestic avenues exist for Mr. Martinez Villareal to raise this issue, and therefore that their allegations in this regard are admissible. 28.
With respect to Mr. Martinez Villareal's competence to be executed,
the Petitioners claim that any pending domestic proceedings concern only
this issue and are not adequate to address the other issues raised before
the Commission, including his due process rights at the trial and
sentencing phases of his criminal proceedings. Further, the Petitioners
claim that in the Arizona Supreme Court proceeding on Mr. Martinez
Villareal's competence to be executed, held in April and May 1997, Mr.
Martinez Villareal was precluded from obtaining objective evidence of his
mental illness in the form of a Magnetic Resonance Imaging scan of his
brain. Mr. Martinez Villareal's subsequent federal habeas application
challenging this proceeding was denied by the U.S. District Court. While
the Ninth Circuit U.S. Court of Appeals vacated the District Court's
decision on appeal and remanded the matter back to the District Court, on
October 30, 2000 the District Court entered an order dismissing Mr.
Martinez Villareal's petition for a writ of habeas corpus without
prejudice. 29.
Finally, with regard to the issue of whether the delay in Mr.
Martinez Villareal's proceedings constitutes cruel, infamous or unusual
punishment under the American Declaration, the Petitioners indicate that
in the recent case of Knight v.
Florida, Moore v. Nebraska, 1999 U.S. LEXIS 7479, 68 U.S.W.L. 307
(November 8, 1999), the U.S. Supreme Court refused to address the very
issue of whether the U.S. Constitution prohibits as cruel and unusual
punishment the execution of prisoners who have spent extended periods of
time on death row. The Petitioners therefore suggest that there is no
effective domestic remedy available in respect of this alleged violation. 30.
The Petitioners have recognized that the United Mexican States
filed an application for a temporary restraining order and preliminary
injunction in the U.S. District Court against the Attorney General of the
State of Arizona and others, alleging violations of, inter
alia, the Vienna Convention on Consular Relations and the
International Covenant on Civil and Political Rights. They have also
confirmed that the U.S. District Court found that it lacked subject matter
jurisdiction to hear the case, and that the United Mexican States appealed
to the Ninth Circuit Court of Appeals. The Petitioners have argued,
however, that Mexico’s arguments are based on treaty obligations, which
can only be advanced by states and are not domestic remedies available to
Mr. Martinez Villareal. 31.
The Petitioners have similarly recognized that motions to re-open
have been continued by the Arizona Supreme Court in respect of its orders
entered on June 9, 1986, February 9, 1989 and April 8, 1992, by which that
Court may reconsider aspects of Mr. Martinez Villareal's claims. They
suggest, however, that these proceedings are extraordinary, in that they
require the hearing of motions on which litigation has ended, and because
such mandates are rarely recalled due to a strong policy that there be an
end to litigation.[2]
Further, the Petitioners argue that, even if successful, these proceedings
will not provide Mr. Martinez Villareal with effective remedies for the
alleged violations of his rights, in part because he will remain precluded
from introducing before a court objective evidence of his mental
condition, and because his due process rights will not be restored at the
trial stage by permitting him to introduce evidence that he was not
competent to stand trial. Further, the Petitioners contend that the State
has not demonstrated that these remedies will be effective to address Mr.
Martinez Villareal's complaints before the Commission. 32.
The Petitioners have also alleged more generally that there has
been an unwarranted delay in rendering final judgment on domestic remedies
within the meaning of Article 37(2)(c) of the Commission's Regulations,
and for this reason that the requirement of exhaustion should not in any
event apply to bar his case from consideration. In this regard, the
Petitioners note in their March 30, 1998 observations that as of that
date, appellate proceedings had continued for nearly 15 years with no
resolution in the near future, and that the delay was due to the failure
of judicial authorities to take action in Mr. Martinez Villareal's case in
a timely manner. Evidence cited by the Petitioners in this connection
include a delay of more than two years in the Arizona Supreme Court's
determination of Mr. Martinez Villareal's appeal from his sentence and
conviction, a further delay of nearly two years in appointing another
attorney to represent Mr. Martinez Villareal following the withdrawal of
his first attorney in June 1986, and the fact that the federal habeas
corpus petition filed by Mr. Martinez Villareal in federal District Court
in March 1993 was not finally determined by the Ninth Circuit U.S. Court
of Appeals until 1996. 33.
In support of their position, the Petitioners cite the decision of
the Inter-American Court of Human Rights in the Suarez
Rosero Case,[3]
in which the Court found six years to be an unwarranted length of time for
the conclusion of all proceedings in the circumstances of that case. They
also refer to the case of Myrna Mack,[4]
in which the Commission found unreasonable delay and admitted the case
over the objection of the Guatemalan government, and claim that the delays
in Mr. Martinez Villareal's case share several of the same
characteristics.[5]
34.
With respect to the substance of their complaints, as indicated
previously, the Petitioners raise five principal claims in respect of Mr.
Martinez Villareal's trial, sentencing, and pending execution. In summary,
the Petitioners allege first that in its Advisory Opinion OC-16/99 of
October 1, 1999, the Inter-American Court of Human Rights determined that
Article 36(1)(b) of the Vienna Convention on Consular Relations vests an
individual right in a detained foreign national to information concerning
consular assistance. The Court concluded further that a State's failure in
its obligations in this regard affects the guarantees of due process, and
that the application of the death penalty under such conditions would
constitute an arbitrary taking of an individual's life. The Petitioners
also claim that the State has not denied that it failed to provide Mr.
Martinez Villareal with notice of his rights under Article 36 of the
Vienna Convention on Consular Relations, and further allege particular
prejudice in Mr. Martinez Villareal's case, as he did not speak or
understand English at the time of his trial, was represented by counsel
who was, by admission, seriously incompetent, and was not provided with
translation during his initial hearings. As a consequence, the Petitioners
allege that the State has violated Articles I, XVIII and XXVI of the
American Declaration in respect of Mr. Martinez Villareal. 35.
The Petitioners also claim that Mr. Martinez Villareal received
ineffective assistance of counsel during his criminal proceedings,
contrary to Articles I, II, XVIII and XXVI of the American Declaration.
Their claim is based in part upon the fact that his trial attorney was
inexperienced and failed to investigate Mr. Martinez Villareal's mental
competence, despite prevailing evidence that he may be mentally ill. The
Petitioners also refer in this regard to the failure of Mr. Martinez
Villareal's attorney to seek a change of venue for his trial and thereby
ensure him an impartial trial, despite the publicity and other potentially
prejudicial circumstances surrounding his prosecution. According to the
Petitioners, these deficiencies in representation precluded Mr. Martinez
Villareal from raising before domestic courts his corollary claims of
mental illness or incompetence in respect of the guilt/innocence and
sentencing phases of his proceeding, also in violation of Articles I, II,
XVIII and XXVI of the American Declaration.
36.
In respect of Mr. Martinez Villareal's competency for execution,
the Petitioners allege that he has been precluded from obtaining in
domestic proceedings evidence of his mental illness in the form of a
Magnetic Resonance Imaging scan of his brain, also in violation of his due
process rights under the American Declaration. Further, the Petitioners
indicate that this evidence could conclusively show whether or not the
victim is suffering from deterioration of the frontal lobe and therefore
is mentally ill and has been since birth. The Petitioners argue in this
regard that a binding norm of international law has developed among the
member states of the OAS and domestically within the United States whereby
states are obliged to refrain from executing the mentally incompetent, and
that the United States is bound by this norm. 37.
Further, the Petitioners allege that there has been unwarranted
delay in the rendering of a final decision in Mr. Martinez Villareal's
case, which in turn has led to a violation of Mr. Martinez Villareal's
right to be free from cruel, infamous or unusual punishment contrary to
Articles XVIII and XXVI of the American Declaration. The Petitioners
contend in this regard that the prolonged delay in Mr. Martinez
Villareal's case is not attributable to him, but rather to the court
system in which he has been engaged. 38.
Finally, the Petitioners allege that the application of the death
penalty in circumstances in which Mr. Martinez Villareal's rights under
Articles XVIII and XXVI have been violated would violate his right to life
under Article I of the American Declaration, as well as his right to
equality before the law under Article II of the Declaration. According to
the Petitioners, this is in part because in the United States, individual
states regulate whether and the manner in which the death penalty is
implemented, and therefore the penalty is not equally applied in the
United States. B. Position of the
State
39.
With respect to the admissibility of the Petitioners' petition, the
State claims that the Petitioners have failed to exhaust domestic remedies
in accordance with Article 37 of the Commission's Regulations. In this
connection, in its December 18, 1997 observations, the State provided a
detailed overview of the history of Mr. Martinez Villareal's criminal
proceedings, which included the following observations. 40.
In May 1983, Mr. Martinez Villareal was convicted and sentenced to
death for two murders perpetrated in Arizona in October 1982. Mr. Martinez
Villareal pursued a direct appeal in respect of his convictions and
sentences, which were all affirmed by the Arizona Supreme Court in 1985.
He was represented by an attorney, William Rothstein, at these stages, as
well as during his first state and first and second federal petitions for
post-conviction relief. 41.
In March 1986, Mr. Martinez Villareal filed a state post-conviction
relief, or "Rule 32", petition, asserting five claims, all
relating to his death sentences. The trial court denied the petition,
ruling that all of the claims had already been considered and ruled upon
by the Arizona Supreme Court. A motion for rehearing was denied by the
trial court in May 1986. 42.
In June 1986, Mr. Martinez Villareal filed a total of three
petitions for habeas corpus in the Federal District Court.[6]
The District Court denied Mr. Martinez Villareal's first petition, with
leave to file a petition after all claims had been exhausted in state
court or if an amended petition was filed containing only claims that had
been so exhausted. Mr. Martinez Villareal's second petition, which
purported to pursue allegations raised before the state courts, contained
five claims, three of which the Court found had not been exhausted and the
remaining two of which were rejected on the merits. In respect of Mr.
Martinez Villareal's third petition, which was filed by Mr. Martinez
Villareal's new counsel and alleged ineffective assistance on the part of
Mr. Rothstein, the District Court granted a stay of execution and ordered
that another petition for post-conviction relief be filed in the state
courts. 43.
Subsequently, a new attorney was appointed for Mr. Martinez
Villareal in October 1987, and an assistant for his counsel was appointed
in April 1988. In June 1988, Mr. Martinez Villareal then filed an amended
petition for post-conviction relief in the state courts alleging, inter
alia, ineffective assistance of counsel. The trial court denied the
claims in the amended petition, many of which were barred from
consideration because of procedural default, and review was denied by the
Arizona Supreme Court in February 1989, and by the U.S. Supreme Court in
October 1989. 44.
In November 1990, the Arizona Supreme Court gave notice of intent
to issue a warrant of execution. Another defense attorney was subsequently
appointed for Mr. Martinez Villareal, and in February 1991, Mr. Martinez
Villareal filed a "Motion for Discover" in the U.S. District
Court, which suggested for the first time that Mr. Martinez Villareal
might be mentally incompetent to be executed. The District Court ordered
that the pending habeas application be dismissed without prejudice so that
the matter could be litigated in the state courts, and in June 1991, Mr.
Martinez Villareal filed another state petition for post-conviction relief
in the Santa Cruz County Superior Court raising approximately 31 claims.
The petition was subsequently dismissed, all but three of the claims
because of previous procedural defaults, and the remaining three because
they presented nothing upon which relief could be granted. No relief was
available for the claims of mental competency for execution because the
Arizona Statutes had a special procedure for addressing claims of this
nature that Mr. Martinez Villareal never attempted to invoke. A motion for
reconsideration was denied by the trial court, the Arizona Supreme Court
denied review in April 1992, and the U.S. Supreme Court denied certiorari
later in 1992. 45.
Mr. Martinez Villareal subsequently filed an amended petition for
habeas corpus in the federal District Court, and on June 22 and 23, 1994,
the District Court held an evidentiary hearing concerning Mr. Martinez
Villareal's mental competency to be tried, sentenced and executed. Most of
Mr. Martinez Villareal's claims were rejected as either procedurally
barred or meritless, specifically finding that no facts existed at the
time of trial that would have given Mr. Martinez Villareal's trial
attorney, Mr. Rothstein, or the trial court reason to believe that Mr.
Martinez Villareal was not competent to be tried. Nevertheless, the
District Court ordered a re-sentencing on the basis that Mr. Martinez
Villareal had ineffective legal representation in his sentencing hearing
by failing to adduce mitigating evidence of his mental condition. On
appeal, however, the Ninth Circuit U.S. Court of Appeals found that the
District Court erred in considering the issue of Mr. Martinez Villareal's
representation, but rather found that the District Court should have
honored the previous finding by the state courts that Mr. Martinez
Villareal's claim of improper representation was procedurally precluded
because it had not been presented in Mr. Martinez Villareal's initial Rule
32 petition with no acceptable cause for the default. This finding was
upheld on review by the full Court of Appeals. 46.
According to the State, following the proceedings described above,
the only issue left unresolved was Mr. Martinez Villareal's competence to
be executed. Following several procedural events, a hearing was held in
the Pinal County Superior Court in May 1997 to address the existence and
degree of mental retardation, mental illness or organic brain damage on
the part of Mr. Martinez Villareal. Following a four day hearing, which
included testimony from psychiatrists and psychologists, the Court found
credible evidence on both sides of the issue, but ultimately concluded
that Mr. Martinez Villareal was aware of his crime and his punishment and
was competent to be executed under the laws of the state of Arizona. The
Arizona Supreme Court upheld the Superior Court’s determination and the
U.S. Supreme Court denied certiorari in May 1997. The Arizona Board of
Clemency then heard two days of testimony, including claims regarding Mr.
Martinez Villareal's mental condition and effectiveness of trial counsel,
but was not persuaded that there were grounds to grant Mr. Martinez
Villareal a reprieve or commutation. 47.
Finally, the State indicates that in May 1997, Mr. Martinez
Villareal filed another habeas corpus petition in the federal District
Court. The District Court in turn found that it could not consider the
petition due to amendments to relevant statutes enacted in 1996, but on
review, the Ninth Circuit U.S. Court of Appeals reversed, construing the
relevant legislation so as not to preclude Mr. Martinez Villareal's claim,
and in May 1998 the U.S. Supreme Court upheld the Ninth Circuit's
determination. As a consequence, Mr. Martinez Villareal sought habeas
review in the federal District Court of the Arizona Supreme Court's
determination on his mental competency for execution, and the District
Court rejected Mr. Martinez Villareal's claim in an August 1999 decision.
The District Court concluded that the Superior Court did not err in
finding Mr. Martinez Villareal competent to be executed, and that he
failed to establish that he was denied a full and fair hearing on the
issue of his competency. 48.
In addition to the above proceedings, the State notes that Mr.
Martinez Villareal filed motions in the Arizona Supreme Court seeking to
have the Court re-open its review of Mr. Martinez Villareal's direct
appeal and the three previous state Rule 32 proceedings. The Arizona
Supreme Court declined to reopen the direct appeal, but held that the
determinations of the Rule 32 petitions on June 9, 1986, February 9, 1989
and April 8, 1992 would be "continued" until the proceedings in
the federal courts were completed. The State also indicated that Mr.
Martinez Villareal filed a fourth post-conviction review petition in the
Santa Cruz Superior Court of Arizona claiming treaty violations and
changes in the law regarding the execution of mentally retarded persons,
and that in October 1997 the Court directed that the proceedings continue
with regard to all of the claims except those alleging treaty violations. 49.
The above overview indicates that the State's procedural history is
largely consistent with that provided by the Petitioners, with two
principal exceptions. First, the State claims that Mr. Martinez
Villareal's fourth post-conviction petition filed in Santa Cruz Superior
Court was not, as the Petitioners suggested, combined with the Arizona
Supreme Court re-opening applications. Rather, the State claims that this
constitutes a wholly separate action that will be considered by the
superior court, and can be reviewed by the Arizona Supreme Court and
possibly by the U.S. Supreme Court. The State also contends, contrary to
the Petitioners' contentions, that the Pinal County Superior Court hearing
in 1997 on Mr. Martinez Villareal's competence to be executed did not find
that the victim suffered from a mental illness, mental retardation, and/or
organic brain damage, but rather found that credible evidence had been
offered on both sides of the issue, including credible evidence negating
the existence of a legally significant mental problem. The State also
argues that litigation on this issue continues in the domestic courts as
evidenced in part by the District Court's August 1999 decision dismissing
Mr. Martinez Villareal's challenge to the Arizona Supreme Court's
competency proceeding and further possible review by the federal and
Supreme Courts. 50.
The State also contends that additional state remedies remain
unexhausted, as the Arizona Supreme Court explicitly continued its
consideration of whether to re-open three prior post-conviction
proceedings pending federal proceedings, including issues of effectiveness
of prior representation. 51.
In any event, the State claims that even if all remedies are
exhausted, Mr. Martinez Villareal's execution could not occur until 35
days after the Arizona Supreme Court issues a warrant of execution. 52.
With respect to the substance of the Petitioners' contentions, the
State raises several arguments. Regarding the Petitioners' claim
respecting the Vienna Convention on Consular Relations, the State
indicates that the Vienna Convention does not vest any private rights in a
criminal defendant and therefore that reliance on this instrument by Mr.
Martinez Villareal is misplaced. It also contends that the Mexican
Government was in a position to know about the case from news media and
other sources, and that Mr. Martinez Villareal was in fact visited by
someone from the Mexican consulate on the first day of his trial. 53.
Regarding the Petitioners' claims pertaining to the fairness of Mr.
Martinez Villareal's proceedings, the State argues that the petition is
manifestly groundless because the Petitioners have failed to articulate
any international "due process" standard that has allegedly been
violated, and that the record shows that Mr. Martinez Villareal has been
afforded due process consistent with the U.S. Constitution and applicable
international norms. In relation to the Petitioners' contentions
respecting Mr. Martinez Villareal's mental state in particular, the State
argues that the allegations are flawed because they assume as true a fact
which has never been proven, namely that Mr. Martinez Villareal had mental
problems around the time of his trial, which the State claims is nothing
more than unsupported extrapolation from testimony that he may have mental
problems now. Indeed, the State contends that not even the existence of
significant current problems has been satisfactorily proved. 54.
In this regard, the State emphasizes that the Pinal County Superior
Court, after conducting the 1997 hearing concerning Mr. Martinez
Villareal's competence for execution, did not find that Mr. Martinez
Villareal actually suffered from mental illness, mental retardation, or
organic brain damage, but rather found credible evidence on both sides of
the issue, including credible evidence negating the existence of a
legally-significant mental problem. Further, with respect to the
Petitioners' complaints regarding a change of venue for Mr. Martinez
Villareal's trial, the State contends that these arguments ignore the fact
that the trial court expended an entire day in the jury selection process,
and that exposure to news accounts and contacts with the families of the
victims was part of the voir dire
process which in turn has not been proved to be inadequate.
55.
With respect to the Petitioners' allegations respecting the delay
in Mr. Martinez Villareal's criminal proceedings, the State contends that
such delays are attributable to Mr. Martinez Villareal, and that in any
event, arguments that he suffered unduly from delays in his case cannot be
grounded in U.S. law. The State relies in this regard upon jurisprudence
from the U.S. courts holding that the existence of appellate delay
designed to provide an appellant with procedural safeguards does not
violate fundamental human rights, under the Sixth, Eighth or Fourteenth
Amendments to the U.S. Constitution or otherwise. 56.
The State also contends in respect of the Petitioners' alleged
violations of the right to equality under Article II of the Declaration
that this demonstrates a misunderstanding of the American legal system, as
all states in the United States that choose to utilize capital punishment
are equally bound to meet the standards for such cases established by the
U.S. Supreme Court. These include decisions applying the Fourteenth
Amendment to the U.S. Constitution respecting due process of law, and the
Eighth Amendment prohibiting cruel and unusual punishment. IV.
ANALYSIS A. Competence of
the Commission
57.
The Petitioners claim that the State has violated Mr. Martinez
Villareal's rights under Articles I, II, XVIII and XXVI of the American
Declaration of the Rights and Duties of Man. The State is a member state
of the Organization of American States that is not a party to the American
Convention on Human Rights, as provided for in Article 20 of the
Commission's Statute and Article 51 of the Commission's Regulations, and
deposited its instrument of ratification of the OAS Charter on June 19,
1951.[7]
The events that relate to the Petitioners' claim occurred subsequent to
the State’s ratification of the OAS Charter. The alleged victim is a
natural person, and the petition was lodged by CEJIL, an organization
authorized to lodge petitions with the Commission under Article 26 of the
Commission's Regulations. The Commission is therefore competent to examine
this petition. B. Admissibility
of Petition
1.
Duplication of Procedures 58.
There is no information on the record indicating that the subject
of this petition is pending settlement in another procedure under an
international governmental organization of which the State is a member, or
that the case essentially duplicates a petition pending or already
examined and settled by the Commission or other international governmental
organization of which the State is a member, as provided for under Article
39 of the Commission's Regulations.[8]
The State has not contested the issue of duplication of procedures. The
Commission therefore finds no bar to the admissibility of the petition
under Article 39 of the Commission's Regulations. 2.
Exhaustion of Domestic Remedies 59.
Article 37(1) of the Commission's Regulations specifies that, in
order for a case to be admitted, “remedies under domestic jurisdiction
must have been invoked and exhausted in accordance with the general
principles of international law.” When domestic remedies are unavailable
as a matter of fact or law, however, the requirement that they be
exhausted may be excused. Article 37(2) of the Commission's Regulations
specifies that this exception applies if the domestic legislation of the
state concerned does not afford due process of law for protection of the
right allegedly violated, if the party alleging the violation has been
denied access to domestic remedies or prevented from exhausting them, or
if there has been an unwarranted delay in reaching a final judgment under
the domestic remedies. 60.
In addition, the Inter-American Court of Human Rights has observed
that domestic remedies, in order to accord with generally recognized
principles of international law, must be both adequate, in the sense that
they must be suitable to address an infringement of a legal right, and
effective, in that they must be capable of producing the result for which
they were designed.[9] 61.
Further, when a petitioner alleges that he or she is unable to
prove exhaustion, Article 37(3) of the Commission’s Regulations provides
that the burden then shifts to the State to demonstrate that the remedies
under domestic law have not previously been exhausted. 62.
The observations of the Petitioners and the State respecting the
procedural history of Mr. Martinez Villareal's criminal proceedings, as
outlined in Part III of this Report, suggest the following conclusions
respecting the exhaustion of domestic remedies, in relation to each of the
claims raised by the Petitioners. 63.
With respect to the Petitioners' complaints that Mr. Martinez
Villareal received ineffective assistance of counsel during the
guilt/innocence and sentencing phases of his trial, this complaint relates
to the conduct of Mr. Martinez Villareal's first attorney, who represented
him during his trial, his direct appeal, and his first two state petitions
for post-conviction relief. According to the State and the Petitioners,
Mr. Martinez Villareal's concerns respecting the effectiveness of his
representation were first raised during his third federal petition in
District Court for post-conviction relief in June 1986, and subsequently
on the direction of the District Court, his June 1988 amended petition for
post-conviction relief in the Arizona Superior Court. Also according to
both parties, the Superior Court rejected Mr. Martinez Villareal's amended
petition, on the basis that Mr. Martinez Villareal failed to raise the
claims in his earlier proceedings and was therefore procedurally precluded
from pursuing them. This determination was maintained by the Arizona
Supreme Court, and the U.S. Supreme Court declined to review the decision.
64.
Similarly, Mr. Martinez Villareal raised the issue of the
effectiveness of his representation in his March 1993 federal habeas
corpus application before the U.S. District Court, and the U.S. Court of
Appeals for the Ninth Circuit ultimately held that the District Court was
bound to honor the state court's preclusion finding on this issue.
Consequently, Mr. Martinez Villareal has exhausted domestic remedies in
relation to this claim, or alternatively has been prevented from pursuing
remedies on procedural grounds. 65.
The parties indicate that the Arizona Supreme Court has, since
September 1997, continued motions to reopen Mr. Martinez Villareal's
previous state petitions for post-conviction relief, pending the
completion of federal proceedings. However, based upon the information
provided by the parties, the Commission cannot find that these proceedings
constitute effective domestic remedies within the meaning of the
Commission's Regulations and under general principles of international
law. In particular, it appears from the record that these proceedings are
of an exceptional nature, in that they require a court to re-open a
procedure that was previously completed and are rarely recalled due to the
strong policy that there be an end to litigation.[10]
Moreover, the Petitioners have alleged that these motions, even if
successful, will not provide them with the relief they seek, in part
because they will not repair the prejudice caused during Mr. Villareal’s
trial and sentencing proceedings, and the State has not presented
information or evidence to the contrary. These factors, together with the
length of time for which these proceedings have been pending, lead the
Commission to conclude that it need not await the outcome of these pending
motions pursuant to Article 37 of its Regulations in order to exercise its
competence in the present case. 66.
With respect to the alleged failure of Mr. Martinez Villareal's
attorney to investigate his mental competence in the context of the
guilt/innocence and sentencing phases of his criminal proceeding,
according to the State Mr. Martinez Villareal was precluded from raising
this issue in the context of his June 1991 state petition for
post-conviction relief, because the Arizona statutes provided for a
special procedure for addressing claims of this nature that Mr. Martinez
Villareal had never attempted to invoke. Further, while Mr. Martinez
Villareal also raised the matter in his March 1993 habeas corpus petition
before the federal District Court, as noted above the Ninth Circuit Court
of Appeals determined on appeal in 1996 that the District Court was bound
to honor the state court's preclusion findings. Consequently, as with his
claim on effectiveness of counsel, Mr. Martinez Villareal appears to have
exhausted domestic remedies in relation to this claim, or alternatively
has been prevented from pursuing domestic remedies on procedural grounds. 67.
With respect to Mr. Martinez Villareal's claim that he is mentally
incompetent to be executed, according to the parties this claim has also
been the subject of proceedings in the state and federal courts. In
particular, according to the State, after a four day hearing in May 1997,
the Pinal County Superior Court of Arizona found credible evidence on both
sides of the issue but ultimately concluded that Mr. Martinez Villareal
was competent to be executed. This decision was upheld in the Arizona
Supreme Court and the U.S. Supreme Court ultimately denied review. The
record further indicates that the Arizona state courts’ findings on Mr.
Martinez Villareal's competence to be executed were also the subject of
review proceedings before the U.S. District Court, which in an August 1999
decision ultimately confirmed the findings of the state courts on this
issue. The record therefore indicates that Mr. Martinez Villareal has
exhausted domestic remedies regarding his competence to be executed. 68.
Moreover, according to the information available at this stage, Mr.
Martinez Villareal was denied the ability during his Arizona Superior
Court hearing in April and May 1997 to obtain and adduce evidence of a
Magnetic Resonance Imaging scan of his brain, which he claims will
constitute significant evidence pertaining to his mental competence to be
executed. The information also indicates that Mr. Martinez Villareal has
unsuccessfully pursued habeas corpus petitions respecting this matter,
such that no effective domestic remedies remain available. 69.
In relation to Mr. Martinez Villareal's complaint regarding Article
36 of the Vienna Convention on Consular Relations, the Petitioners note
that the State's position, generally and in the context of the request for
Advisory Opinion OC-16 before the Inter-American Court of Human Rights,
has been that Article 36 of the Vienna Convention does not vest any rights
in a detained foreign national, and that the State has demonstrated
through practice that it will not recognize such a right, nor provide a
remedy for its violation. The State confirmed this position in its
observations, and has not contested nor demonstrated the existence of
effective domestic remedies in respect of this aspect of the Petitioners'
petition. The Commission therefore concludes that the Petitioners' claim
respecting the State's failure to comply with Article 36 of the Vienna
Convention on Consular Relations is not precluded by Article 37 of the
Commission's Regulations. 70.
With respect to the Petitioners allegation that the delay in Mr.
Martinez Villareal's criminal proceedings constitutes cruel, infamous or
unusual punishment contrary to Articles XVIII and XXVI of the American
Declaration, the Petitioners claim that no effective remedies exist with
respect to such claims under existing domestic jurisprudence. In this
regard, the Petitioners refer to the dismissal by the U.S. Supreme Court
in November 1999 of applications for writs of certiorari in the cases Knight
v. Florida and Moore v. Nebraska,[11]
in which the applicants raised the very question of whether the U.S.
Constitution prohibits as cruel and unusual punishment the execution of
prisoners who have spent nearly 20 years or more on death row. In its
observations, the State has confirmed the status of U.S. law in this
regard, stating that arguments that a condemned prisoner has suffered
unduly from delays in his or her case cannot be grounded in U.S. law.
Based upon this information, therefore, the Commission finds that any
proceedings raising these claims before domestic courts would appear to
have no reasonable prospect of success, would not be effective in
accordance with general principles of international law, and accordingly
need not be exhausted in accordance with Article 37 of the Commission’s
Regulations.[12] 71.
Finally, in respect of the Petitioners' contention that the death
penalty is applied in the United States in a manner inconsistent with Mr.
Martinez Villareal’s right to equal protection of the law under Article
II of the American Declaration, the Petitioners have suggested that no
effective domestic remedies exist in relation to this allegation, but
rather have indicated that the State has failed to remedy a similar
violation determined by the Commission in its decision in the Roach
and Pinkerton Case.[13]
The State has not specifically contested the admissibility of this aspect
of the Petitioners' case, but has only contended that this argument
demonstrates a profound misunderstanding of the American legal system.
Consequently, the Commission considers that the Petitioners' complaint is
not barred by the requirement of exhaustion of domestic remedies in this
respect. 72.
Based upon the information presented, the Commission therefore
finds that the Petitioners' claims, as articulated above, are not barred
from consideration under Article 37 of the Commission's Regulations. 3.
Timeliness of the Petition 73.
In accordance with Article 38(1) of the Commission's Regulations,
the Commission must refrain from taking up petitions that are lodged after
the six month period following the date on which the complaining party has
been notified of the final ruling, in cases where the remedies under
domestic law have been exhausted. 74.
In the present case, the Petitioners' petition was not lodged
beyond six months from the date on which Mr. Martinez Villareal was
notified of any of the final rulings on the issues raised before the
Commission in his case, in those instances in which domestic remedies were
available. The State has not specifically contested the timeliness of the
Petitioners' petition. Consequently, the Commission concludes that the
Petitioners' petition is not barred from consideration under Article 38 of
the Commission's Regulations. 4.
Colorable Claim 75.
Article 41(c) of the Commission's Regulations requires the
Commission to declare inadmissible any petition when the petition is
manifestly groundless or inadmissible on the basis of a statement by the
petitioners or the government. 76.
The Commission has outlined in Part III of this Report the
substantive allegations of the Petitioners, as well as the State's
responses to those allegations. After carefully reviewing the extensive
and complex information and arguments provided by the parties on the
matters raised in this case, and in light of the heightened scrutiny test
applied by the Commission in capital punishment cases,[14]
the Commission does not find the Petitioners' allegations to be manifestly
groundless or inadmissible. Accordingly, the Commission concludes that the
Petitioners' petition is not inadmissible under Article 41(c) of the
Commission's Regulations. V. CONCLUSIONS
77.
The Commission concludes that it has the competence to examine the
Petitioners' allegations, and that the petition is admissible in
accordance with the Commission's Regulations.
78.
On the basis of the findings of fact and law set forth above, and
without prejudging the merits of the matter,
THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, DECIDES
TO: 1. Declare the
present case admissible, in respect of Articles I, II, XVIII and XXVI of
the American Declaration. 2.
Transmit this Report to the Parties. 3.
Continue with the analysis of the merits of the case. 4. Publish this
Report and include it in its Annual Report to the General Assembly of the
Organization of American States. Done and signed in the city of Washington, D.C., on the 4th day of the month of December, 2000. (Signed): Prof. Hélio Bicudo, Chairman; Dean Claudio Grossman, First Vice-Chairman; Dr. Peter Laurie, Dr. Julio Prado Vallejo, Commissioners. [ Table of Contents | Previous | Next ] *
Commission Member Professor Robert Goldman did not take part in the
discussion and voting on this case, pursuant to Article 19(2) of the
Commission's Regulations. [1]
Article 36 of the Vienna
Convention on Consular Relations provides as follows: 1.
With a view to facilitating the exercise of consular functions
relating to nationals of the sending State: (a)
consular officers shall be free to communicate with nationals
of the sending State and to have access to them. Nationals of the
sending State shall have the same freedom with respect to
communication with and access to consular officers of the sending
State; (b)
if he so requests, the competent authorities of the receiving
State shall, without delay, inform the consular post of the sending
State if, within its consular district, a national of that State is
arrested or committed to prison or to custody pending trial or is
detained in any other manner. Any communication addressed to the
consular post by the person arrested, in prison, custody or detention
shall also be forwarded by the said authorities without delay. The
said authorities shall inform the person concerned without delay of
his rights under this sub-paragraph; (c)
consular officers shall have the right to visit a national of
the sending State who is in prison, custody or detention, to converse
and correspond with him and to arrange for his legal representation.
They shall also have the right to visit any national of the sending
State who is in prison, custody or detention in their district in
pursuance of a judgment. Nevertheless, consular officers shall refrain
from taking action on behalf of a national who is in prison, custody
or detention if he expressly opposes such action. 2.
The rights referred to in paragraph 1 of this Article shall
be exercised in conformity with the laws and regulations of the
receiving State, subject to
the proviso, however, that the laws and regulations must enable full
effect to be given to the purposes for which the rights accorded under
this Article are intended. [2]
Petitioner's July 8, 1997 observations, para. 5.2, citing Federal Appellate Practice Guide, Ninth Circuit, Section 9.18
at 9-44 (1994); State's May 20, 1997 response to Combined Motion to
Recall Mandate, Vacate Prior Orders Denying Review, and Requesting
Stay of Execution. [3]
I/A Court H.R., Suarez Rosero
Case, Judgment, 12 November 1997. [4]
Report No. 10/96 (Myrna Mack v.
Guatemala), Annual Report of the IACHR 1995. [5]
In their March 30, 1998 observations, the Petitioners refer to several
factors in the Myrna Mack Case, including the fact that the
proceedings had remained inactive for almost one year due to failure
to appoint opposing counsel, that the proceedings continued for six
years which was found to be unwarranted given the facts of the case,
that there was no indication that a resolution was coming in respect
of pending actions, and that it was reasonable to expect that, in
light of the way that previous proceedings had developed, the pending
proceeding would not achieve an affirmative result.
[6]
According to the State's observations, a habeas corpus petition is a
special petition that an individual can file to challenge the
constitutionality of his or her sentence or incarceration. [7]
The Inter-American Court of Human Rights and this Commission have
previously determined that the American Declaration of the Rights and
Duties of Man is a source of international obligation for the United
States and other OAS member states that are not parties to the
American Convention on Human Rights, as a consequence of Articles 3,
16, 51, 112, and 150 of the OAS Charter. See
I/A Court H.R., Advisory Opinion OC-10/89 Interpretation
of the American Declaration of the Rights and Duties of Man Within the
Framework of Article 64 of the American Convention on Human Rights,
July 14, 1989, Ser. A No. 10 (1989), paras. 35-45; Res. 3/87 (Roach
and Pinkerton v. US), Annual
Report of the IACHR 1986-87, paras. 46-49. See
also Statute of the Inter-American Commission on Human Rights,
Art. 20. [8]
Article 39(1) of the Commission's Regulations provides: "The
Commission shall not consider a petition in cases where the subject of
the petition: a) is pending settlement in another procedure under an
international governmental organization of which the State concerned
is a member; b) essentially duplicates a petition pending or already
examined and settled by the Commission or by another international
governmental organization of which the state concerned is a
member." [9]
I/A Court H.R., Velásquez Rodríguez
Case, Merits, Judgment of July 29, 1988, Ser. C No. 4, (1988), paras. 64-66. [10]
See similarly Eur. Comm.
H.R., X and Church of Scientology v. Sweden, 7805/77, May 5, 1979, 16
D.R. 68 (observing that a procedure which is directed towards a
re-opening of a case or a re-trial of its merits is not normally a
remedy which need be exhausted for the purposes of the European
Convention); G. v. United Kingdom, 11932/86, May 9, 1988, 56 D.R. 199
(considering that the possibility of requesting an authority to
reconsider a decision taken by it will not generally constitute an
effective remedy for the purposes of Article 26 of the European
Convention); Karaduman v. Turkey, 16278/90, (Dec.) May 3, 1993, 74 D.R.
93 (finding that a request for a court to reconsider a previous
judgment was not an effective remedy that required exhaustion in the
circumstances of the petitioner's complaint). [11]
Knight v. Florida and Moore
v. Nebraska, 1999 U.S. West Law 7479; 68 U.S.L.W. 3307 (U.S. Sup.
Ct., 8 November 1999). [12]
See similarly Report No.
51/00 (Graham v. US), June 15, 2000 (IACHR), para. 60; Eur. Court
H.R., De Wilde, Oomas and Versyp Cases, June 10, 1971, Publ. E.C.H.R. Ser.
A, Vol.12, p. 34, paras. 37, 62 (suggesting that domestic remedies
need not be exhausted in circumstances in which an applicant believes
that there is no reasonable chance of success and where that doubt is
supported by the jurisprudence of the state's highest court); Eur.
Court H.R., Avan Oosterwijck v.
Belgium, Judgment (Preliminary Objections), November 6, 1980, Case
No. 7654/76, para. 37. [13]
Roach and Pinkerton v. US, supra. [14]
According
to the Commission's established jurisprudence, it will review and
decide capital punishment cases with a heightened level of scrutiny,
to ensure that any deprivation of life that an OAS member state
proposes to perpetrate through the death penalty complies strictly
with the requirements of the applicable inter-American human rights
instruments. See Report No.
57/96 (Andrews v. United States), Annual Report of the IACHR 1997,
paras. 170-171; Report No. 38/00 (Baptiste v. Grenada), Annual Report
of the IACHR 1999, paras. 64-66; Report No. 41/00 (McKenzie et al. v.
Jamaica), Annual Report of the IACHR 1999, paras. 169-171. |