...continued

196.          It is evident based upon the information provided by the Petitioners that the conditions of detention to which Mr. Hall has been subjected, fail to meet several of these minimum standards of treatment of prisoners, in such areas as accommodation, ventilation, hygiene, and exercise.  Mr. Hall claims that his cell is 6ft by 6ft. is hot and airless with inadequate ventilation, and only has 10 minutes of exercise four days per week rather than the 1 hour prescribed under the UN Standard Minimum Rules.  In addition, Mr. Hall claims that he is tormented by the prison guards who state that they would like to “get rid” of some of them. Likewise, Messrs. Schroeter’s and Bowleg’s pre-trial conditions of detention fail to meet several of the minimum standards of treatment of detainees, in particular, the violence which the condemned men encountered at the hands of the police officers prior to making statements implicating them in the murder.  The physical abuse and violence is clearly in violation of Rule 31 of the UN Minimum Rules which prohibits corporal punishment and all cruel, inhuman or degrading forms of punishments.

197.          The Petitioners also rely upon general sources of information regarding prison conditions in The Bahamas and other Caribbean countries.  These include reports prepared in 1990 and 1991 by the non-governmental organization “Caribbean Rights.”  While somewhat outdated, the Reports tend to support Hall’s allegations in respect of the conditions in which he has been incarcerated since his arrest.

198.          The State has failed to provide any information in respect of conditions of detention in The Bahamas generally, or as they pertain to Messrs. Hall, Schroeter and Bowleg.  Based upon the information on the record before the Commission, the Commission concludes that the State has violated Messrs. Hall’s, Schroeter’s and Bowleg’s rights to the preservation of their health and well-being,  their rights to humane treatment, and their rights not to receive cruel, infamous, or unusual punishment, pursuant to Articles XI, XXV, and XXVI of the Declaration, since their detention in 1996, and 1994, respectively.[1]

d.       Articles XVII, XVIII, and XXVI of the Declaration, Unavailability of Legal Aid for Constitutional Motions

199.          The Petitioners argue that legal aid is not effectively available for Constitutional Motions before the courts in The Bahamas, and that this constitutes a violation of the right to a fair trial under Articles XVIII and XXVI of the Declaration.

                        200.          The Petitioners contend that the failure of the State to provide legal aid denies the condemned men access to the Courts in fact as well as in law.  The Petitioners argue that to bring a Constitutional Motion before the domestic courts often involve sophisticated and complex questions of law that require the assistance of Counsel.  In addition, the Petitioners claim that the condemned men are indigent, and that legal aid is effectively not available to them to pursue Constitutional Motions in the courts of The Bahamas.  The Petitioners contend that there are a dearth of lawyers who are prepared to represent the condemned men pro bono.

                        201.          Based upon the material before it, the Commission is satisfied that Constitutional Motions dealing with legal issues of the nature raised by the condemned men in their petitions, such as the right to due process of law, the right to humane treatment, and the adequacy of their prison conditions, are procedurally and substantively complex and cannot be effectively raised or presented by a prisoner in the absence of legal representation.  The Commission also finds that the State does not provide legal aid to individuals in The Bahamas to bring Constitutional Motions, and that the condemned men are indigent and are therefore not otherwise able to secure legal representation to bring Constitutional Motions.

                        202. As discussed above, the Commission considers that in light of the evolving nature of the American Declaration, that Articles XVIII, and XXVI of the Declaration must be interpreted in the circumstances of the condemned men’s cases to require that the State has an obligation to provide legal assistance for Constitutional Motions in capital punishment cases.  In particular, because of the complexity involved in initiating and pursuing a Constitutional Motion in the Supreme Court of The Bahamas for the determination of rights of the condemned men, the Commission believes that the provisions of Articles XVIII, and XXVI of the Declaration must be given effect by The Bahamas.  In the circumstances of the condemned men’s cases, the Supreme Court of The Bahamas would be called upon to determine whether the condemned men’s convictions in a criminal trial violated their rights under Constitution of The Bahamas. In such cases, the application of a requirement of a fair hearing in the Supreme Court should be consistent with the principles in Articles XVIII, and XXVI of the Declaration.[2]  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.

                        203. Due to the unavailability of legal aid, the condemned men have effectively been denied the opportunity to challenge the circumstances of their convictions under Constitution of The Bahamas, to  an impartial hearing.  This in turn constitutes a violation of their rights under Article XXVI of the American Declaration.[3]

                        204. Moreover, Article XVIII of the Declaration provides individuals with the right to resort to the courts to ensure respect for his legal rights, and the availability of a simple and brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights.  In this regard the Commission has stated that the right to recourse under Article 25 of the American Convention when read together with the obligation in Article 1(1) and the provisions of Article 8(1), “must be understood as the right of every individual to go to a tribunal when any of his rights have been violated (whether a right protected by the Convention, the Constitution, or the domestic laws of the State concerned), to obtain a judicial investigation conducted by a competent, impartial and independent tribunal that will establish whether or not a violation has taken place and will set, when appropriate, adequate compensation.”[4]

                        205.          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.[5]  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 XVIII of the Declaration, in the circumstances of the present cases.

                        206.          By failing to make legal aid available to the condemned men to pursue Constitutional Motions in relation to their criminal proceedings, the State has effectively barred recourse for the condemned men to a simple and brief procedure whereby the courts in The Bahamas would protect them from acts of authority that, to their prejudice, violate their fundamental rights under the Constitution of The Bahamas and under the American Declaration.  Moreover, in capital cases, where Constitutional Motions relate to the procedures and conditions through which the death penalty has been imposed and therefore relate directly to the right to life and to humane treatment of a defendant, it is the Commission's view that the effective protection of those rights cannot properly be left to the random prospect as to whether an attorney may be willing or available to represent the defendant without charge. The right to judicial protection of these most fundamental rights must be guaranteed through the effective provision of legal aid for Constitutional Motions.[6]  The State cannot be said to have afforded such protection to the condemned men.  As a consequence, the State has failed to fulfil its obligations under Article XVIII of the American Declaration in respect of the condemned men.

                        207. Accordingly, the Commission concludes that the State has failed to respect the rights of Messrs. Edwards, Hall, Schroeter and Bowleg under Article XXVI of the Declaration by denying them an opportunity to challenge the circumstances of their convictions under the Constitution of The Bahamas in an impartial and public hearing.  The Commission also concludes that the State has failed to provide Messrs. Edwards, Hall, Schroeter and Bowleg with a simple and brief procedure whereby the courts in The Bahamas would protect them from acts of authority that, to their prejudice, violate their fundamental constitutional rights under the Constitution of The Bahamas and under the American Declaration, and has therefore violated the rights of Messrs. Edwards, Hall, Schroeter and Bowleg to judicial protection under Articles XVIII, and XXVI of the Declaration.

e. Article XXVI - Right to an Impartial Trial

208.          The Petitioners claim that Mr. Edwards did not have an impartial trial because he was denied the benefit of effective counsel at trial and that the State failed to disclose documents relating to the conduct of Mr. Edward’s identification parade.  In their Response to the State’s Reply to Mr. Edwards’ petition, the Petitioners stated that they were withdrawing the allegation of incompetence of counsel.  In addition, the Petitioners stated that they were not in a position to develop Mr. Edwards’ petition concerning the failure of the State to disclose documents pertaining to Mr. Edwards’ identification parade.

209.          In the State’s Reply to the Petitioners allegations concerning ineffective assistance of counsel and the failure to disclose documents regarding Mr. Edwards’ identification parade, the State denied that it violated the Declaration and refuted the Petitioners allegation concerning ineffective and incompetent counsel at trial.  The State responded to the Petitioners allegations in the following manner:

It should be pointed out that the allegation that the applicant was ‘denied effective and competent counsel’ can in no way be supported either by reference to the record of the proceedings before the Learned Trial Judge of by Personal reference to the defense counsel in question.  Mr. Malcolm Adderley, the attorney of record is a very senior lawyer who has served in the past as Justice of the Supreme Court of the Commonwealth of The Bahamas (in an acting capacity).  He presently serves as judicial member of the Industrial Tribunal.

That there was no established procedure in place at the time of this investigation in the Royal Bahamas Police Force to fill out documents prior to holding an identification parade.  That practice has now been in place for the past five years.  Therefore at the time of trial there were no formal documents to disclose to counsel for the defense relative to the conduct of the identification Parade.

210.          Because the Petitioners have withdrawn both of their allegations concerning Mr. Edwards’ claims that he had ineffective and incompetent counsel at trial, and that the State failed to disclose documents relating to Mr. Edwards’ identification parade, and bearing in mind the State’s rebuttal of these allegations, the Commission finds no violation in this regard under Article XXVI of the Declaration.

211.          In respect of Mr. Hall, the Petitioners claim that Mr. Hall did not receive a fair trial pursuant to Article XXVI of the Declaration because he suffered prejudice due to biased reporting in the daily newspapers and television at the time of his trial.  The Petitioners contend that such coverage meant that Mr. Hall was incapable of receiving a fair trial. The State has not replied to Mr. Hall’s allegations despite the Commission’s communications to it dated December 10, 1998, and October 19, 1999, concerning the same.  The Commission is of the opinion that the Petitioners have not presented the necessary evidence to support their claim concerning the alleged violation of Mr. Hall’s right to an impartial trial pursuant to Article XXVI of the Declaration, therefore the Commission finds no violation of this Article.

212.          With regard to Messrs. Schroeter’s and Bowleg’s claims, the Petitioners contend namely, that the condemned men did not have a fair trial because of the confessions obtained from them by the police were coerced and obtained through police violence and oppression; procedural irregularities occurred during the trial; the trial judge’s summing-up to the jury was not impartial, and was prejudicial to the condemned men, because the trial judge indicated to the jury that he disbelieved the condemned men as to what transpired when they were detained by police officers; and that the trial judge should not have informed the jury that he ruled on voir dire that their confessions were obtained by the police during the condemned men’s detention and were admissible, which affected their credibility.

213.          In addition, the Petitioners contend that Messrs. Schroeter and Bowleg complained of their inhumane treatment by police officers in the Magistrates Court on July 19, 1996, which resulted in the Magistrate, Cheryl Albury, directing that that they be taken to hospital.  The Petitioners maintain that at the Accident and Emergency Department of the Princess Margaret Hospital both victims received treatment for injuries sustained whilst in police custody.  The Petitioners allege that at trial, the Casualty sheets containing the treating doctors notes in respect of the victims had been “inadvertently misplaced” and what remained were summarized notes in the Hospital’s Accident and Emergency Ledger.

214.          The Petitioners claim that at trial the medical evidence was not given by the treating doctor because he was “unavailable” but by a colleague based on a summarized note.  The Petitioners indicate that the police witnesses at trial could not explain how the injuries were sustained, because they had not seen the condemned men injure themselves or suffer any accident.  The Petitioners argue that the nature of the medical evidence and the failure of the Crown to explain the injuries raised at least the possibility that the confessions were obtained by oppression.  The Petitioners contend that in such circumstances the oral and written confessions attributed to the condemned men should have been excluded from evidence.  In support of their argument the Petitioners cite the following statement from the judge’s summing-up to the jury:

Just to give my ruling in the matter, and my decision has been arrived at after considering all the evidence adduced, the arguments raised, including the comments regarding alleged omissions and the detention forms and the absence of medical reports.  And my conclusion is that I would allow the evidence to go forward.[7]

215.          After carefully reviewing Messrs. Schroeter’s and Bowleg’s 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 condemned men’s trials were conducted are matters which are more appropriately left to the domestic courts of States Parties to the American Declaration.  The Commission considers that it is generally for the courts of States Parties to the Declaration 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.

f.          Article XXV of the Declaration, Right To Be Tried Without Undue Delay

216.          Messrs. Schroeter and Bowleg claim that their rights to be tried without undue delay and the length of time spent in detention, were violated by the State pursuant to Article XXV of the Declaration. The Petitioners claim that the deceased was killed on June 17, 1994, and Messrs. Schroeter and Bowleg were arrested and committed to stand trial on the same date.  The Petitioners maintain that the victims’ trial commenced on August 12, 1996, approximately 26 months after they were arrested.  The Petitioners claim that Messrs. Schroeter and Bowleg rights to protection from arbitrary arrest, and due process guarantees pursuant to Article XXV of the Declaration were violated, because they were not brought to trial promptly and within a reasonable time.

217.          The State has not responded to the merits of the condemned men’s petition including, their claims relating to  a violation of Article XXV of the Declaration.

218.          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.[8]  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.[9]

219.          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.[10] 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.[11]

220.          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.”[12]

221.          In the condemned men’s cases, they have been subjected to a pre-trial delay of more than 2 years. In light of the past jurisprudence of this Commission,[13] 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.[14]

222.          In addition, the State has failed to respond to the issue of “delay” and has failed to provide any proper justification for the delay in bringing the condemned men to trial.  There is also no indication that the case involved a complicated investigation or complex evidence.

223.          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 Messrs. Schroeter and Bowleg was unreasonable contrary to Article XXV of the Declaration. According to the information before the Commission, the condemned men’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. Similarly, there is no information before the Commission concerning the procedural activity relating to Mr. Bowleg or Mr. Schroeter or the conduct of the judicial authorities that explains or justifies a delay of 26 months between the condemned men’s arrests and their trial.

224.          Consequently, the Commission concludes that the State failed to try the condemned men without undue delay and within a reasonable time contrary to Article XXV of the American Declaration.  Therefore, the Commission finds that the State has violated the rights of Messrs. Schroeter and Bowleg to be tried without undue delay and within a reasonable time pursuant to Article XXV of the Declaration.

225.          Given its conclusions that the mandatory death sentences imposed upon the condemned men contravene Articles I, XVII, XXV, and XXVI of the Declaration and are therefore unlawful, the Commission does not consider it necessary to determine whether the length of the delays in trying the condemned men or their prolonged period of post-conviction detention, as outlined above, constitute cruel, unusual or degrading punishment or treatment contrary to Article XXVI of the Declaration and therefore may also render the condemned men’s executions unlawful.

V.          FINAL CONCLUSIONS

          The Commission, on the basis of the information presented, and the due analysis under the American Declaration, reiterates its conclusions as follows:

226.          The State is responsible for violating  Articles I, XVIII, XXV, and XXVI of the American Declaration by sentencing Messrs. Edwards, Hall, Schroeter and Bowleg, to a mandatory death penalty.

          227.          The State is responsible for violating Messrs. Edwards’, Hall’s, Schroeter’s and Bowleg’s rights under Article XXIV of the American Declaration, by failing to provide the condemned men with an effective right to petition for amnesty, pardon or commutation of sentence.

          228.          The State is responsible for violating Messrs. Hall’s, Schroeter’s and Bowleg’s rights under Articles XI, XXV, and XXVI of the American Declaration, because of the inhumane conditions of detention to which the condemned men were subjected.

          229.          The State is responsible for violating Messrs. Edwards’, Hall’s, Schroeter and Bowleg’s rights under Articles XVIII, and XXVI of the American Declaration, by failing to make legal aid available to the condemned men to pursue Constitutional Motions.

230.          The State is responsible for violating Messrs. Schroeter’s and Bowleg’s rights to be tried without undue delay under Article XXV of the Declaration.

          231.          The Commission finds no violation of Articles XXV and XXVI of the Declaration relating to Mr. Edwards’ inhumane conditions of detention, incompetent and ineffective benefit of counsel, and the State’s failure to disclose documents relating to Mr. Edwards’ identification parade, and finds no violation of Articles XXV and XXVI of the Declaration.

          232.          The Commission does not find that the State is in violation of Mr. Hall’s right to an impartial trial because of unfair media reporting and publicity.

          233.          With respect to Messrs. Schroeter’s and Bowleg’s claims that they did not have an impartial trial because of the conduct of their trial in particular the trial judge’s summing-up to the jury concerning their involuntary confessions, the Commission finds no violation of Article XXVI of the Declaration.

VI.          RECOMMENDATIONS

Based on the analysis and the conclusions in this Report,

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS RECOMMENDS THAT THE COMMONWEALTH OF THE BAHAMAS:

234.          Grant Messrs. Edwads, Hall, Schroeter and Bowleg, an effective remedy which includes commutation of sentence and compensation;

235.          Adopt such legislative or other measures as may be necessary to ensure that the death penalty is imposed in compliance with the rights and freedoms guaranteed under the American Declaration, including and in particular Articles I, XXV, and XXVI, and to ensure that no person is sentenced to death pursuant to a mandatory sentencing law.

236.          Adopt such legislative or other measures as may be necessary to ensure that the right under Article XXIV of the American Declaration to petition for amnesty, pardon or commutation of sentence is given effect in The Bahamas.

237.          Adopt such legislative or other measures as may be necessary to ensure that the right to an impartial hearing under Article XXVI of the American Declaration and the right to judicial protection under Article XVIII of American Convention are given effect in The Bahamas in relation to recourse to Constitutional Motions.

238.          Adopt such legislative or other measures as may be necessary to ensure that the right under Article XXV of the American Declaration to be tried without undue delay is given effect in The Bahamas.

239.          Adopt such legislative or other measures as may be necessary to ensure that the rights under Articles XXV and XXVI of the American Declaration to humane treatment and the right not to receive cruel, infamous, or unusual punishment are given effect in The Bahamas.

VII.          PUBLICATION

240.          On January 4, 2001, in conformity with Article 53(1) and 53 (2) of the Commission’s Regulations, the Commission sent Report No. 118/00 which was adopted in this case on December 8, 2000 to the State of The Bahamas,  and granted the State a period of two months for it to adopt the necessary measures to comply with the foregoing recommendations and to resolve the situation under analysis.

241.          On January 29, 2001, the State acknowledged receipt of the Commission’s communication and Report No. 118/00, and stated that “the Report had been sent to the relevant authorities for the necessary action, and that a response would be forwarded as soon as the review is completed.”

242.          The period of two months has elapsed and the Commission has not received a response from the State of The Bahamas in respect of its Recommendations in this case.

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

244.          Based on the foregoing and pursuant to Articles 53(3) and 53 (4), and 48 of the Commission’s Regulations, the Commission decides to reiterate the conclusions and recommendations contained in Report No. 118/00. The Commission further decides to make public this report and include it in the Commission’s Annual Report to the General Assembly of the OAS.  The Commission, pursuant to its mandate shall continue evaluating the measures taken by the State of The Bahamas with respect to the recommendations at issue, until they have been fully implemented.

Done and signed in Santiago, Chile, on the 4^th day of the month of April, 2001 (Signed): Chairman, Claudio Grossman; Juan Mendez, First Vice-Chairman; Marta Altolaguirre, Second Vice-Chairman; Commissioners: Robert K. Goldman,  Peter Laurie,   Julio Prado Vallejo, Hélio Bicudo.

CONCURRING OPINION OF COMMISSIONER HÉLIO BICUDO

          In the 108th period of sessions I expressed my opinion that the death penalty has been abolished in the Inter-American System of Human Rights.  In Case 12.028 (Grenada), concerning the mandatory death sentence imposed on Mr. Donnason Knights, I presented my argument in favor of this understanding.  In the present case, although I am in general agreement as to the findings, reasoning and motives of the report, I would like to insist on my position that the death penalty has already been abolished by the evolution of the normative standards of the Inter-American system.  For this reason I present the following separate opinion:

1.          The American Declaration of the Rights and Duties of Man (hereinafter American Declaration), approved at the Ninth International American Conference, which took place in Santa Fe, Bogota in May and June of 1948, affirms that “Every human being has the right to life, liberty and the security of his person” (Article 1) and, moreover, that “All persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor” (Article 2).

2.          Article 4 of The American Convention on Human Rights (hereinafter American Convention), approved on November 22, 1969 in San Jose, Costa Rica, states that “Every person has the right to have his life respected.  The right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.”

3.          At the same time, the American Convention, by including the right to personal integrity in the civil and political rights framework, affirms that “No one shall be subjected to torture or to cruel, inhumane, or degrading punishment or treatment.”

4.          However, the death penalty is provided for in the American Convention in its original version. Article 4, Section 2 allows the death penalty to be applied by Member States only for the most serious crimes.

5.          There is a contradiction among the aforementioned articles which repudiate torture, cruel, inhumane or degrading punishment or treatment.

6.          The American Declaration considers life to be a fundamental right, and the American Convention condemns torture or the imposition of cruel, inhumane or degrading punishment or treatment. The elimination of a life could be deemed torture or cruel, inhumane or degrading punishment or treatment.

7.          It seems that the tolerance expressed in Article 4, Section 2 of the American Convention reveals the sole adoption of a political position of conciliation between all Member-States in order to approve a more general article, the one about the right to life.

8.          Before analyzing what it means for some States to retain the death penalty as a part of their legal systems, it is important to note that the Inter-American Convention to Prevent and Punish Torture, signed in Cartagena de Indias, Colombia, on December 9^th, 1985, describes the meaning of torture as follows: “Torture shall be understood to be any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as  personal punishment, as a preventive measure, as a penalty, or for any other purpose” (Article 2).

9.          Notice that this article addresses torture as a personal punishment or penalty in all circumstances.

10.          The death penalty brings immeasurable suffering to the individual.  Is it possible to imagine the anguish that the individual feels when he/she is informed of the verdict?  Or the moments leading up to the actual execution?  Would it be possible to evaluate the suffering of those who wait on death row for execution, in some cases for several years?  In the United States, fifteen, sixteen or seventeen year-old minors, who committed homicide and subsequently received the death penalty, wait for fifteen years or longer for their execution.  Is it possible to imagine a fate worse than remaining between hope and despair until the day of execution?

11.          The OAS Member-States, by adopting the Convention on Forced Disappearance of Persons, reaffirms that “the true meaning of American solidarity and good neighborliness can be none other than that of consolidating in the Hemisphere, in the framework of democratic institutions, a system of individual freedom and social justice based on respect for essential human rights.”

12.          It is important to mention that in 1998 and 1999, the United States was the only country in the world known for executing minors under 18 years of age.  To that extent, it is important to note that the United States has accepted the International Covenant on Civil and Political Rights since September 1992 Article 6(5) of which establishes that the death penalty cannot be imposed on minors under 18 years old or on pregnant women.  The U.S. Senate opted to express its reservation to this section at the moment of its ratification but currently, there is an international consensus opposed to that reservation based on Article 19 (c) of the Vienna Convention on the Law of Treaties. This Convention gives the State the possibility to formulate reservations, but these reservations cannot be incompatible with the object and purpose of the treaty.

13.          In June 2000, Shaka Sankofa, formerly known as Gary Graham, was convicted in the State of Texas for a crime he committed when he was 17 years old.  He was executed after waiting 19 years on death row, although the Inter-American Commission on Human Rights (hereinafter “IACHR” or “Commission”) had formally presented requests to the American government to suspend the act until the case was decided by the Commission. There were serious doubts regarding whether Shaka Sankofa had really committed the crime.  The U.S. Government did not respond to the Commission’s recommendation but could not escape from the jurisdiction of the IACHR on the protection of human rights, according to the American Declaration.  The Commission thus sent out a press release condemning the U.S. decision, since it was not in accordance with the Inter-American System for the Protection of Human Rights.[15]

14.          The Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (hereinafter Convention of Belém do Pará), approved in Belém do Pará, Brazil, on June 9, 1994, does not allow the imposition of the death penalty on women.  Article 3 states “ Every woman has the right to be free from violence in both the public and private spheres” and Article 4 states that “Every woman has the right to have her life respected”.  Regarding the duties of States, the Convention of Belém do Pará establishes that States should “refrain from engaging in any act or practice of violence against women and ensure that their authorities, officials, personnel, agents, and institutions act in conformity with this obligation”. Therefore, if every woman has the right to life, and the right to be free from violence, and the State is denied the practice of violence against women, it seems that the Convention of Belém do Pará  prohibits the application of the death penalty to women. There is no discrimination against men or children.  It cannot be argued that it is “positive discrimination” or “affirmative action”, because it only serves to preserve the inherent rights of the individual.  For instance, pregnant women or women with children are entitled to rights based solely on the fact of their exclusive female condition.  Thus, the same rights cannot be extended to men.  Positive discrimination is usually applied to bring about equality, through temporary and proportional measures, to groups of people that experience de facto inequality.  There is no inequality between men and women with regard to the right to life.  In any case, the imposition of the death penalty is not a proportional measure, as we will see later on.  When it comes to common rights – such as the right to life - we cannot argue positive discrimination.  All persons are equal before the law.  The prohibition of the death penalty for women was based on both the female condition and the human condition.

15.          Article 24 of the American Convention affirms that all persons are equal before the law, and consequently, they are entitled, without discrimination, to equal protection of the law.  Although that Convention does not define discrimination, the IACHR understands that discrimination includes distinction, exclusion, restriction or preference which has the purpose or effect of nullifying or impairing the recognition of human rights and fundamental freedoms in the political, economic, social cultural or any other field of public life (Manual on the Preparation of Reports on Human Rights, International Covenant on Civil and Political Rights, Article 26.)

16.          It is also important to note that Article 37(a) of the Convention on the Rights of the Child prohibits the imposition of the death penalty on minors under 18 years of age.

17.          The above-mentioned Convention is considered a universal legal instrument in the area of human rights. (Only the United States and Somalia have failed to ratify it.)

          18.          Article 37 of the Convention on the Rights of Child states:  “No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.”

19.          Although the U.S. has not ratified the Convention on the Rights of the Child, it became a signatory to the Convention in February 1995, and has thus accepted its legal obligations.  Article 18 of the Vienna Convention on the Law of Treaties establishes that the States that have signed a treaty, but not ratified it, shall refrain from engaging in any act that is contrary to its purpose until it has decided to announce its intention of not becoming part of that treaty.  Despite the fact that the U.S. has not ratified the Convention, the U.S. State Department has already recognized that the Vienna Convention on the Law of Treaties serves as a precedent for international treaty proceedings.  The U.S. State Department considers the Convention a declaration of customary law based on the Vienna Convention on the Law of Treaties, which establishes the importance of treaties as sources of international law as well as a method of peaceful development and cooperation between nations, no matter what their Constitutions and social systems entail.

20.          As mentioned above, the imposition of the death penalty against women, is not a case in which positive discrimination could be applied because Article 37 (a) of the Convention on the Rights of the Child aims to preserve rights that are created not only for children  but for all human beings.

21.          If that is the case, then Article 4 of the American Convention has lost its previous meaning.  Therefore States that have signed and ratified it as well as other international instruments cannot impose the death penalty upon any person, regardless of gender or any other personal condition.

22.          The issue will be examined under legal hermeneutics of positive law. International law presupposes [normative] dispositions that are above [the] State [law]. As set forth by the illustrious Italian jurist, Norberto Bobbio, universalism – which international law attempts to embody – reappears today, specially after the end of WWII and the creation of the UN, no longer as a belief in an eternal natural law [order], but as the will to constitute, in the end, a single body of positive law of the social and historical development (as natural law and the state of nature). He also ponders that the idea of the single global State is the final limit of the idea of the contemporary juridical universalism, that is the establishment of a universal positive law (Cf. Teoria do Ordenamento Jurídico, Universidade de Brasília, 1991, p. 164).

23.          In the present case, we cannot allow a previous law with the same content of a new law to supersede the new law.  That would be considered as antinomy, and therefore it has to be solved. What are the rules that should prevail? There is no doubt that they are incompatible. But how could we solve the problem?

24.          According to Mr. Bobbio, the criteria to solve an antinomy are the following: a) chronological criteria, b) hierarchical criteria, c) specialty criteria.[16]

25.          According to the chronological criteria the new law prevails over the previous law – lex posteriori derogat priori. According to the hierarchy criteria, international law prevails over national law. Lastly, the specialty criteria could also apply in this case, since it is a specific law with a specific purpose.

26.          It is impossible to argue that death penalty as described in the Section 2 of Article 4 of the American Convention is a specific law as opposed to general law of the right to life.  It is also not possible to accept the idea that death penalty is considered a particular penalty that does not entail a violation of right to life or torture or any other cruel or inhumane treatment.

27.          The Inter-American Court of Human Rights affirms that the imposition of restrictions on the death penalty should be effected by setting up a limit through an irreversible and gradual process, which would be applied both in countries that have not abolished the death penalty and in those that have done so. (Advisory Opinion – OC-3/83)

28.          The Court also understands that the American Convention is progressive to the extent that, without deciding to abolish the death penalty, it adopts certain measures to limit it and diminish its application until it is no longer applicable.

29.          It is worth reviewing the preparatory work of the American Convention that illustrates the interpretation of Article 4. The proposal to outlaw the death penalty made by several delegations did not receive any opposing vote, despite the fact that the majority of votes had not been reached. The development of negotiations in the Conference can be reviewed in the following declaration presented before the Plenary Session of Completion and signed by 14 of 19 participants (Argentina, Costa Rica, Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Uruguay and Venezuela):

“The delegations that sign below, participants of the Specialized Inter-American Conference on Human Rights, taking into consideration the highly prevailing feeling, expressed in the course of the debates on the abolishment of the death penalty, in accordance with the purest humanistic traditions of our peoples, solemnly declare our firm aspiration of seeing the application of the death penalty in the American context eradicated as of now, and our indeclinable purpose of effecting all possible efforts so that, in the short term, an additional protocol to the American Convention on Human Rights “Pact of San Jose, Costa Rica” might be adopted, consecrating the definitive abolition of the death penalty, and putting America once more in the forefront  of the protection of fundamental human rights.” (author’s translation from the original in spanish, Acts and documents, OAS-serv. K-XVI-I2, Washington – DC, 1973, hereafter Acts and Documents, repr. 1978, spanish version, p. 161, 195, 296 and 449/441).

30.          In agreement with these assertions, the Commission’s Rapporteur made clear, in this article, his firm tendency towards the abolition of this penalty. (Acts and documents, supra, n.296)

31.          Moreover, the rule of law (Estado de derecho) implies, when punishment is imposed, the knowledge of what the penalty actually means. When the purpose of the punishment applied is not only retribution, but the recuperation or rehabilitation of the convict, he or she knows what will happen in his or her future. If the punishment is purely retributive, as in a sentence imposing imprisonment for life, the convict still envisages his future. But if the convict is sentenced to death, the State does not point to what the elimination of his being will bring him. Science, with all its developments, has not managed, up to now, to unveil the after-death: future life, with prize or punishment? Pure and simple elimination?

32.          In this sense, the rule of law forbids the imposition of a penalty whose consequences cannot be unveiled.

33.          In truth, all punishment enacted by the legislator constitutes species of sanctions, distributed according to a rational scale that attempts to take into consideration a series of factors specific to each hypothesis of unlawfulness.

34.          The right and obligation to punish which belongs to the State expresses itself in a variety of figures and measures, according to gradual solutions, measurable in money or in amounts of time. This gradual order is essential to criminal justice, for it would not be realized without a superior criterion of equality and proportionality in the distribution of punishment, for transgressors would then receive more than their just deserts.

35.          With the imposition of the death penalty, however, the aforementioned serial harmony is abruptly and violently shattered; one jumps from the temporal sphere into the non-time of death.

36.          With what objective criterion or with what rational measure (for ratio means reason and measure) does one shift from a penalty of 30 years imprisonment or a life sentence to a death penalty? Where and how is proportion maintained? What is the scale that ensures proportionality?

37.          It could be argued that there is also a qualitative difference between a fine and detention, but the calculus of the former can be reduced to chronological criteria, being determined, for instance, in terms of work days lost, so that it has a meaning of punishment and suffering to the perpetrator, linked to his patrimonial situation. In any circumstance, these are rational criteria of convenience, susceptible to contrast with experience, that govern the passage from one type of punishment to the other, whereas the notion of “proportion” is submerged in face of death.

38.          Summing up, the option for the death penalty is of such order that, as Simmel affirmed, it emphasizes all contents of the human life, and it could be said that it is inseparable from a halo of enigma and mystery, of shadows that cannot be dissipated by the light of reason: to attempt to fit it into the scheme of penal solutions is equal to depriving it from its essential meaning to reduce it to the violent physical degradation of a body (quoted by Miguel Reale, in O Direito como experiencia).

39.          Hence, the conclusion of the eminent philosopher and jurist Miguel Reale: Analyzed according to its semantic values, the concept of punishment and the concept of death are logically and ontologically impossible to reconcile and that, therefore the “death penalty” is a “contradictio in terminis” (cf. O Direito como Experiencia, 2^nd edition, Saraiva, Sao Paulo, Brasil)

40.          The jurist Hector Faundez Ledesma writes on this topic: “ as the rights consecrated in the Convention are minimum rights, it cannot restrict their exercise in a larger measure than the one permitted by other international instruments. Therefore, any other international obligation assumed by the State in other international instruments on human rights is of utmost importance, and its coexistence with the obligations derived from the Convention must be taken into consideration insofar as it might be more favorable to the individual.”

41.          “The same understanding”, continues the jurist, “is extensive to any other conventional provision that protects the individual in a more favorable way, be it contained in a bilateral or multilateral treaty, and independently of its main purpose” (El Sistema Interamericano de Proetccion de los Derechos Humanos, 1996, pp. 92-93).

42.          Moreover, Article 29(b) of the American Convention establishes, in the same line of thought, that no disposition of the Convention may be interpreted in the sense of “restricting the enjoyment or exercise of any right or freedom recognized by the virtue of the laws of any State Party”. In this sense, it is opportune to refer to the IACHR report on Suriname, and the Advisory Opinions 8 and 9 (of the Inter-American Court on Human Rights, 1987)

          43.          On this opportunity, the IACHR affirmed that the prohibition of imposing the death penalty in cases where the offender was a minor at the time of the crime was an emerging principle of international law. Twelve years later there is no doubt that this principle is totally consolidated. The ratification of the Convention on the Rights of the child by 192 States, where the death penalty of minor offenders is prohibited, is a irrefutable proof of the consolidation of the principle (Cf. Report presented by Amnesty international to the IACHR, in Washington, on March 5^th, 1999).

          44.          It is true that the Universal Declaration on Human Rights does not refer specifically to the prohibition of the death penalty, but consecrates in its Article 3 the right of every person to his life, liberty and security (the same provision can be found on Article I of the American Declaration of the Rights and Duties of Man). Adopted by the General Assembly of the United Nations in 1948, under the guise of a recommendatory resolution, the Universal Declaration is held – by many important scholars – to be a part of the body of international customary law and a binding norm (jus cogens) – as defined in Article 53 of the Vienna Convention on the Law of Treaties. Mutatis Mutandi, it would be lawful to affirm that the Convention on the Rights of the Child, by reason of its breadth and binding character, must also be observed by the only two States that have not ratified it, as has already been said, and has been recognized by the Department of State of the United States of America.

          45.          It is convenient to observe, furthermore, that the European Court of Human Rights, in its decision in the Soering Case – Jens Soering, born in Germany, in detention in England and submitted to an extradition procedure on behalf of the government of the United States pending charges of murder committed in Virginia, a State that punishes this crime with the death penalty – made opportune comments regarding Article 3 of the European Convention, which establishes the interdiction of torture, inhuman cruel or degrading treatment or punishment. The Court considered that the request could not be granted unless the person subject to extradition would be guaranteed his or her rights under Article 3 of the Convention (cf. Jurisprudence de la Cour europeenne des droits de l’homme, 6^th ed. 1998, Sirey, Paris, pp. 18 and ff.).

          46.          The Court concluded that the extradition to a country that applied the death penalty did not constitute a breach of the right to life or to the right to personal integrity since the death penalty is not, in itself, explicitly prohibited by the European Convention. Nonetheless, the possibility that the condemned could spend years waiting for the moment – totally unpredictable, by the way – of the execution of the punishment, the so called “death row syndrome”, was considered by the Court as constituting a cruel treatment and, therefore, a breach of the right to personal integrity.

          47.          It is, doubtlessly, an ambiguity: if there is a delay in imposing the penalty, there is violation of the right; if the sentence is carried out immediately, the State’s action will not be considered a breach of the fundamental right to life.

          48.          This decision gives rise to the conclusion that little by little, the traditional vision, the positivistic application of the law, is being abandoned. Instead of a literal interpretation of the texts in discussion, a teleological hermeneutics is searched, in this case, of the European Convention, to achieve the major conclusion that the death penalty should not be permitted in any hypothesis.

          49.          Therefore, the absolute prohibition, in the European Convention, of the practice of torture or of inhuman or degrading treatment or punishment shows that article 3, referred to above, proclaims one of the fundamental values of democratic societies. The judgment underlines that provisions in the same sense can be found in the International Covenant on Civil and Political Rights of 1966, and in the American Convention on Human Rights of 1969, protecting, in all its extension and depth, the right of the human person. The Court concludes that it is an internationally approved norm.

          50.          It is true that the concept of inhuman or degrading treatment or punishment depends upon a whole set of circumstances. It is not for any other reason that one should have utmost care to ensure the fair balance between the requirements of the communities’ general interest and the higher imperatives of the protection of the fundamental rights of the individual, that take form in the principles inherent to the European Convention taken as a whole.

          51.          Amnesty International has affirmed that the evolution of the norms in Western Europe concerning the death penalty leads to the conclusion that it is an inhuman punishment, within the meaning of Article 3 of the European Convention. It is in this sense that the judgment of the court in the Soering case should be understood.

          52.          For its part, the Inter-American Court on Human rights has already affirmed that “The right to life and the guarantee and respect thereof by States cannot be conceived in a restrictive manner. That right does not merely imply that no person may be arbitrarily deprived of his or her life (negative obligation). It also demands of the States that they take all appropriate measures to protect and preserve it (positive obligation).” (Cf. Repertorio de Jurisprudencia del Sistema Interamericano de Derechos humanos, 1998, Washington College of Law, American University, 1/102)

          53.          It was for the same reason that the European Court, in the aforementioned Soering decision, considered that “Certainly, ‘the Convention is a living instrument which ... must be interpreted in the light of present-day conditions’; and, in assessing whether a given treatment or punishment is to be regarded as inhuman or degrading for the purposes of Article 3 (art. 3), "the Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the Member States of the Council of Europe in this field” (par. 102).

          54.          In fact, to determine whether the death penalty, because of current modifications of both domestic and international law, constitutes a treatment prohibited by Article 3, it is necessary to take into consideration the principles that govern the interpretation of that Convention. In this case, both in the European Convention and in the American Convention, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment” (Article 3 of the European Convention); “No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.” (Article 5(2) of the American Convention on Human Rights).

          55.          In the same line of thought, in the case between Ireland and the United Kingdom, the European Court had already decided that “The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim's conduct (…) Article 3 (art. 3) makes no provision for exceptions (…)the only relevant concepts are "torture" and "inhuman or degrading treatment", to the exclusion of "inhuman or degrading punishment".(par. 163-164)

          56.          More recently, in its Advisory Opinion OC-16, of October 1^st, 1999, requested by Mexico, the Inter-American Court on Human Rights considered it opportune to state that, as regards the right to information about consular assistance, as part of the due process guarantees, that “in a previous examination of Article 4 of the American Convention, the Court observed that the application and imposition of capital punishment are governed by the principle that " no one shall be arbitrarily deprived of his life." Both Article 6 of the International Covenant on Civil and Political Rights and Article 4 of the Convention require strict observance of legal procedure and limit application of this penalty to "the most serious crimes." In both instruments, therefore, there is a marked tendency toward restricting application of the death penalty and ultimately abolishing it.” (par. 134)

          57.          It is reasonable to ask what is still lacking for the universal elimination of the death penalty? Simply the total recognition of the rights emanated from the treaties.

          58.          In support of this idea, we find the concurring vote, in the above-mentioned Advisory Opinion requested by Mexico, of Judge Cancado Trindade, wherein relevant assertions are made concerning the hermeneutics of law in face of the new protection demands.

          59.          In his concurring vote, the illustrious international legal scholar and current President of the Court (1999/2001) underlines that “The very emergence and consolidation of the corpus juris of the International Law of Human Rights are due to the reaction of the universal juridical conscience to the recurrent abuses committed against human beings, often warranted by positive law: with that, the Law (el Derecho) came to the encounter of the human being, the ultimate addressee of its norms of protection.” (Concurring vote, par.4)

          60.          The author of the concurring vote also warns that “In the same sense the case-law of the two international tribunals of human rights in operation to date has oriented itself, as it could not have been otherwise, since human rights treaties are, in fact, living instruments, which accompany the evolution of times and of the social milieu in which the protected rights are exercised” (ibid, par. 10)

          61.          In this sense the European Court on Human Rights, in its Tyrer vs. United Kingdom Case (1978), when determining the unlawfulness of physical punishment applied to teenagers in the Isle of Man, affirmed that the European Convention on Human Rights is “a living instrument which ... must be interpreted in the light of present-day conditions”.

          62.          Finally, with the demystification of the postulates of the voluntarist legal positivism, it has become clear that the answer to the problem of the basis and the validity of general international law can only be found in the universal legal consciousness, from the affirmation of an idea of objective justice.

          63.          Furthermore, in a meeting of representatives of the human rights treaty bodies, it was emphasized that conventional procedures are part of a broad international system of human rights protection, which has – as a basic postulate – the indivisibility of human rights (civil, political, economic, social and cultural). To ensure in practice the universalization of human rights, the meeting recommended the universal ratification, up to the year 2000, of the six core human rights treaties of the United Nations (the two International Covenants of 1966; the conventions on the elimination of racial discrimination and discrimination against women; the UN Convention against Torture; and the Convention on the Rights of the Child), of the three regional conventions on human rights (European, American and African), and the ILO Conventions that concern basic human rights. The representatives at the meeting warned that the non-compliance by the states in respect of their obligation to ratify constituted a breach of conventional international obligations and that the invocation of state immunity, in this context, would result in a “double standard” that would punish the States that duly complied with their obligations. (Cancado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol 1, Fabris Ed. 1997, pp. 199-200)

          64.          Article 27 of the Vienna Convention on the Law of Treaties of 1969 forbids the invocation of domestic law to justify the non-compliance of an international obligation. Moreover, according to Article 31 of the Vienna Convention: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their contest and in light of its object and purpose”. It follows also that, according to the doctrine of “effet utile”, the interpreter must not deny any term of a normative provision its value in the text: no provision can be interpreted as not having been written.

          65.          In effect, the Inter-American Court, in its Advisory opinion OC-14/94, has held that: “Pursuant to international law, all obligations imposed by it must be fulfilled in good faith; domestic law may not be invoked to justify nonfulfillment. These rules may be deemed to be general principles of law and have been applied by the Permanent Court of International Justice and the International Court of Justice even in cases involving constitutional provisions [Greco-Bulgarian “Communities”, Advisory Opinion, 1930, P.C.I.J., Series B, No. 17, p.32; Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion, 1932, P.C.I.J., Series A/B, No. 44, p. 24; Free Zones of Upper Savoy and the District of Gex, Judgment, 1932, P.C.I.J., Series A/B, No. 46, p. 167; and, I.C.J. Pleadings, Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 (Case of the PLO Mission) (1988) 12, at 31-2, para. 47].” (par.35)

          66.          In view of the considerations presented here, it can be said that the norm of article 4, section 2 of the Inter-American Convention, has been superseded by the aforementioned conventional provisions, following the best hermeneutic of the International Law of Human Rights, with the result that it is prohibitive, for domestic law – even if older than the American Convention – to apply cruel punishment, such as the death penalty.

          67.          This result also follows from the principle of the International Law of Human Rights that all action must have as its basic goal the protection of victims.

          68.          In light of these considerations, provisions such as Article 4(2) of the American Convention on Human Rights should be disregarded, in favor of legal instruments that better protect the interests of the victims of violations of human rights.

          Done and signed in Santiago, Chile, on the 4^th day of the month of April, 2001 (signed): Commissioner: Hélio Bicudo.