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REPORT
Nş 49/01
I.
SUMMARY
1.
This Report concerns four capital punishment petitions brought
against the State of Jamaica (hereinafter referred to as "the
State" or "Jamaica") and pertain to alleged violations of
one or more of Articles 1, 4, 5, 7, 8, 24 and 25 of the American
Convention on Human Rights (hereinafter referred to as "the
Convention"). The
petitions were presented to the Inter-American Commission on Human Rights
(hereinafter referred to as "the Commission") on behalf of four
condemned men on death row, at St. Catherine District Prison, Jamaica
(hereinafter referred to as "the victims"), by two firms of
Solicitors in London, United Kingdom, Simons, Muirhead & Burton, and
Barlow, Lyde & Gilbert (hereinafter
referred to as "the Petitioners").
This report addresses the merits of each case. 2.
The names of the Petitioners and victims in each of the four cases,
the dates on which the Commission opened files in respect of each
complaint, and the provisions of the American Convention alleged to have
been violated in respect of the victims in each of the four cases, are as
follows: Table
1
3.
The State's principal legislation governing the punishment for the
crime of murder is the Offences Against the Person Act, 1864, as amended by the
Offences Against the Person (Amendment) Act 1992 (hereinafter referred
to as "the Act"). The
Act distinguishes between categories of "capital" and
"non-capital" murder.[1]
In addition, sections 3(1) and 3(1A) of the Act prescribe the death
penalty as the only punishment for persons convicted of capital murder,[2] and for persons convicted on the same or a different
occasion of more than one non-capital murder, referred to in this Report
as "multiple non-capital murder".[3] 4.
The victims in these cases were tried, convicted and sentenced to
death by hanging for capital murder, pursuant to Article 3(1) of the Act,
or for multiple non-capital murder, pursuant to Article 3(1A) of the Act.
In Case Nos. 11.826 (Leroy Lamey), 11.846 (Milton Montique) and
11.847 (Dalton Daley), the victims were ultimately convicted of more than
one non-capital murder committed on the same or a different occasion,[4]
and the victim in Case Nş 11.843 (Kevin Mykoo) was convicted of capital
murder in the course or furtherance of robbery.[5]
Each of the victims in these cases appealed to the Court of Appeal in
Jamaica, and subsequently filed a petition for Special Leave to Appeal to
the Judicial Committee of the Privy Council.
The victims' death sentences were ultimately sustained on appeal.
5.
The Petitioners in these cases allege that the State violated the
victims' rights under the American Convention on one or more of the
following grounds, particulars of which are provided in Part III.A of this
Report: (a)
violations of Articles 4(1), 4(6), 5, 24 and 25 of the Convention,
relating to the mandatory nature of the death penalty for the crime of
capital and multiple non-capital murder in Jamaica and the process for
granting amnesty, pardon or commutation of sentence in Jamaica; (b)
violations of Articles 7(5), 7(6) and 8(1) of the Convention,
relating to delays in the victims' criminal proceedings; (c) violations of Articles 4 and 5 of the Convention, relating to the victims' treatment and conditions of detention; (d)
violations of Articles 4, 8(1) and 8(2) of the Convention, relating
to the adequacy of time and facilities for preparing the victims' legal
defenses and the adequacy of their legal representation; (e)
violations of Articles 24 and 25 of the Convention, relating to the
unavailability of legal aid for Constitutional Motions in Jamaica; (f)
violations of Articles 4(1), 4(6), 5, 8 and 25 of the Convention,
relating to the validity of Jamaica's Governor General Instructions; 6.
The Commission had previously determined by telephone conference on
November 3, 1998 that these four cases were admissible in accordance with
the requirements of the Convention and the Commission's Regulations,[6]
and by Report 103/00 adopted on October 16, 2000 considered the merits of
the cases pursuant to Article 50 of the Convention. As a procedural
matter, the Commission decided to consolidate these four cases pursuant to
Article 40(2) of the Commission's Regulations for the purpose of
determining their merits, on the basis that they involve similar facts and
substantially the same issues under the Convention. 7.
Upon consideration of the merits of the four cases that are the
subject of this Report, the Commission reached the following conclusions: (a)
The State is responsible for violating the rights of the victims in
Case Nos. 11.826 (Leroy Lamey), 11.843 (Kevin Mykoo), 11.846 (Milton
Montique) and 11.847 (Dalton Daley) under Articles 4(1), 5(1), 5(2) and
8(1), in conjunction with violations of Article 1(1) of the American
Convention, by sentencing these victims to a mandatory death penalty. (b) The State is responsible for violating the rights of the victims in Case Nos. 11.826 (Leroy Lamey), 11.843 (Kevin Mykoo), 11.846 (Milton Montique) and 11.847 (Dalton Daley) under Article 4(6) of the Convention, in conjunction with violations of Article 1(1) of the Convention, by failing to provide these victims with an effective right to apply for amnesty, pardon or commutation of sentence. (c)
The State is responsible for violating the rights of the victims in
Case Nos. 11.843 (Kevin Mykoo), 11.846 (Milton Montique) and 11.847
(Dalton Daley) under Article 7(5) and 7(6) of the Convention, in
conjunction with violations of Article 1(1) of the Convention, by failing
to promptly bring the victims before a judge following their arrests, and
by failing to ensure their recourse without delay to a competent court to
determine the lawfulness of their detention; (d) The State is responsible for violating the rights of the victims in Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley) under Articles 7(5) and 8(1) of the Convention, in conjunction with violations of Article 1(1) of the Convention, by reason of the delays in trying the victims. (e)
The State is responsible for violating the rights of the victims in
Case Nos. 11.826 (Leroy Lamey), 11.843 (Kevin Mykoo), 11.846 (Milton
Montique) and 11.847 (Dalton Daley) under Articles 5(1) and 5(2) of the
Convention, in conjunction with violations of Article 1(1) of the
Convention, by reason of these victims' conditions of detention. (f)
The State is responsible for violating the rights of the victims in
Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley) under
Articles 8(2)(d) and 8(2)(e) in conjunction with violations of Article
1(1) of the Convention, by denying the victims access to legal counsel for
prolonged periods following their arrests. (g)
The State is responsible for violating the rights of the victims in
Case Nos. 11.826 (Leroy Lamey), 11.843 (Kevin Mykoo), 11.846 (Milton
Montique) and 11.847 (Dalton Daley) under Articles 8 and 25 of the
Convention, in conjunction with violations of Article 1(1) of the
Convention, by failing to make legal aid available to these victims to
pursue Constitutional Motions. II.
PROCEEDINGS BEFORE THE COMMISSION A.
Petitions and Observations
8.
The Commission opened the cases that are the subject of this Report
on various dates between October and December 1997, as set out in the
previous Table 1, and transmitted the pertinent parts of the petitions to
the State, with responses requested within 90 days.
The materials filed in support of certain of the petitions
included: transcripts from the victims criminal proceedings before the
Courts in Jamaica; judgments of the Jamaican Court of Appeal dismissing
the victims appeals from their convictions; petitions filed by the
victims for Special Leave to Appeal as a Poor Person to the Judicial
Committee of the Privy Council; affidavits and questionnaires prepared by
certain victims concerning the conditions of their detention and the
circumstances of their criminal proceedings; and reports from various
governmental and non-governmental organizations concerning prison
conditions in Jamaica. The
supporting materials pertaining to particular allegations raised by each
victim are identified and discussed in the substance of this Report. 9.
The particulars of the initial processing of each of the cases are
set out in Table 2 below: Table
2
10.
As the above Table 2 indicates, the Commission received responses
to the original petitions from the State in each of the four cases.
The pertinent parts of the State's responses were transmitted to
the Petitioners, with observations and responses requested within 30 days. In all of the cases, the Petitioners delivered observations
on the State's responses, the pertinent parts of which the Commission
subsequently transmitted to the State, with responses requested within 30
days. In each of the four
cases, the State delivered replies to the Petitioners' observations. In Case Nos. 11.826 (Leroy Lamey) and 11.843 (Kevin Mykoo),
the pertinent parts of the State's observations were transmitted to the
Petitioners, with a response requested within 30 days.
In Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley),
the State indicated in its replies that it had no further observations to
make in the cases, and therefore no further pertinent parts were
transmitted to the Petitioners. 11.
Furthermore, in one of the four cases, Case Nş 11.843 (Kevin
Mykoo), the Petitioners delivered "supplementary" written
submissions to the Commission, one on February 4, 1998 and the other on
September 21, 1998, which the Commission subsequently transmitted to the
State with responses requested within 30 days.
In respect of the latter submission, the State delivered a response
dated September 30, 1998. 12. During its 102nd Period of Sessions at its Headquarters in Washington, D.C., the Commission scheduled an oral hearing on March 3, 1999, in the four cases that are the subject of this report. The victim's representatives attended the hearing and made submissions to the Commission, and subsequently provided the Commission with written representations dated March 11, 1999 supplementary to their oral presentation. The State did not attend the hearing, but rather informed the Commission by letter dated February 19, 1999, that the State would not participate because it was "of the view that there are no outstanding issues that would necessitate the scheduling of such hearings." B.
Precautionary Measures 13.
In each of the four cases that are the subject of this report, the
Commission ultimately adopted precautionary measures pursuant to Article
29(2) of its Regulations, requesting that the state stay the victims'
executions until the Commission had an opportunity to fully investigate
the alleged facts. 14.
In particular, by letter dated November 20, 1997, the Commission
requested pursuant to Article 29(2) of the Commission's Regulations that
the State stay the execution of the victim in Case Nş 11.826 (Leroy
Lamey) until the Commission had an opportunity of fully investigate the
claims in his case. The
Commission reiterated these requests in its Admissibility Report Nş 89/98
dated November 3, 1998, and in a subsequent communication to the State
dated December 2, 1998 following the reading of a warrant to the victim
for his execution on December 8, 1998. 15.
Similarly, in Case Nos. 11.843 (Kevin Mykoo), 11.846 (Milton
Montique) and 11.847 (Dalton Daley), the Commission by communications
dated, respectively, December 2, 1998, November 20, 1998 and November 20,
1998, requested pursuant to Article 29(2) of the Commission's Regulations
that the State stay the victims' executions to avoid irreparable harm to
them until the Commission had reached decisions on the merits of the
cases. This followed the
reading to the victim in Case Nş 11.843 (Kevin Mykoo) of a warrant for
his execution on December 8, 1998, and the reading of warrants to the
victims in Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley)
for their executions on November 26, 1998. C.
Friendly Settlement 16.
In its decisions in the admissibility reports adopted in the four
cases presently under consideration by the Commission, the Commission
placed itself at the disposal of the parties with a view to reaching
friendly settlements of the matters pursuant to Article 48(1)(f) of the
Convention. 17.
In addition, by communications dated September 18, 2000 to the
Petitioners and to the State, the Commission again placed itself at the
disposal of the parties in these four cases, with a view to reaching
friendly settlements of the matters. The Commission also requested that the parties provide the
Commission with a response to the Commission's offers within 7 days of
receipt of the communication, in default of which the Commission would
continue with consideration of these matters. 18.
The Commission received only one response to its September 18, 2000
correspondence from the parties within the prescribed seven day period.
By letter dated September 25, 2000, the Petitioners in Case Nş
11.843 (Kevin Mykoo) confirmed that they accepted the Commission's offer
under Article 48(1)(f) of the Convention with a view to reaching a
friendly settlement in the case. 19.
Accordingly, by note dated September 25, 2000, the Commission
informed the State of the Petitioners' interest in pursuing a friendly
settlement of the matter, and requested that the State inform the
Commission within 7 days as to whether the State was likewise interested
in attempting to reach a friendly settlement, in default of which the
Commission would continue with consideration of the matter.
The Commission did not receive any response from the State within
the prescribed period. The
Commission did, however, subsequently receive a communication dated
October 2, 2000 from the State, in which it indicated in respect of the
four cases under consideration that the State was "of the view that
there are no outstanding issues that would necessitate the scheduling of
friendly settlement proceedings." The State therefore urged the
Commission to "continue with its consideration of the cases with a
view to delivering its views in a timely manner." D.
Jamaican Governor
General's Instructions 20.
The Commission wishes to note that in each of the cases that are
the subject of this Report, the Petitioners allege violations of Articles
4, 5, 8 and 25 of the Convention and the Commissions Regulations in
relation to the "Instructions for dealing with applications from or
on behalf of prisoners under sentence of death to the United Nations Human
Rights Committee or the Inter-American Commission on Human Rights",
issued by Jamaica's Governor General on August 7, 1997 (hereinafter referred to as the "Governor
General's Instructions").[8]
The Governor General's Instructions designated limits on the time
period during which a prisoner was permitted to petition the
Inter-American Commission on Human Rights and the United Nations Human
Rights Committee.[9]
The Instructions also placed time limits on when the Governor
General was required to receive the prisoner's petition and a request for
stay of execution.[10]
Additionally, the Governor General's Instructions purported to
prescribe a period of six months for the Commission and the Committee to
investigate and rule on the prisoner's petition, and for the Governor
General to advise the Jamaican Privy Council on the outcome of the
petition.[11] 21.
The Commission subsequently received information that the Jamaican
Court of Appeal had issued a decision on June 15, 1999, with respect to
the lawfulness of Jamaica's Governor Generals Instructions.
In Neville Lewis v. Attorney General for Jamaica et al., the Jamaican
Court of Appeal determined that the Governor Generals Instructions were
unlawful under Jamaica's domestic law.
On page 11 of its decision the Court of Appeal declared that:
even
though the recommendations of the [Inter-American] Commission are not
binding on the Governor General in the exercise of the Prerogative of
Mercy, given the terms of the treaty which the government ratified, the
Privy Council ought to await the result of the petition, so as to be able
to give it consideration in determining whether to exercise the
Prerogative of Mercy. Subsequently,
on page 18 of its decision, the Court of Appeal found that "
to
issue Instructions calling upon the [Inter-American] Commission to
complete its process in 6 months or about 180 days, is in my view
disproportionate, and consequently unlawful." 22.
Moreover, the Commission has received information that the decision
of the Court of Appeal of Jamaica was appealed to the Judicial Committee
of the Privy Council, and that in a judgment delivered on September 12,
2000, that Court upheld the finding by the Court of Appeal that the
Governor General's Instructions of August 6, 1997 violated the rules of
natural justice and were unlawful.[12]
23.
As the Instructions in their current form do not have any legal
effect in Jamaica, and accordingly do not apply to the cases currently
under consideration by the Commission, the Commission does not consider it
necessary to address the submissions of the Petitioners or the State
concerning the validity of the Instructions under the Convention and the
Commission's Regulations.
III.
POSITIONS OF THE PARTIES
A.
Positions of the Petitioners 1.
Background to the Cases 24.
The pertinent background facts of these four cases, together with
the categories of violations of the Convention raised in each case, are
outlined below.
Leroy Lamey (Case 11.826) 25.
Leroy Lamey was charged together with his co-Defendant Patrick
Ormsby with the July 16, 1992 murder to the deceased, Shawn Donaldson.
Mr. Lamey was tried and convicted on October 13, 1993, but on
appeal his conviction was quashed and a re-trial was ordered.
The victim was re-tried between May 8 and May 16, 1996, found
guilty of capital murder, and sentenced to death.
He subsequently appealed his conviction and sentence to the Court
of Appeal, and in a judgment dated February 19, 1997, the Court of Appeal
of Jamaica quashed his conviction for capital murder and substituted it
for one of non-capital murder. Mr.
Lamey's death sentence was nevertheless maintained under Section 3(1A) of
the Offenses Against the Person Act, due to his conviction for
non-capital murder on a previous occasion.
Mr. Lamey appealed to the Judicial Committee of the Privy Council
in May 1997, and on October 23, 1997 his petition was dismissed.
In addition, on January 19, 1995, Mr. Lamey was issued a warrant
for his execution on January 26, 1995, and on May 22, 1997, he was read a
second warrant for his execution on May 27, 1997.
Both of these executions were subsequently stayed by the
Governor-General of Jamaica, the former on January 18, 1995 and the latter
on May 27, 1997. 26.
The prosecution alleged that the deceased was in Thompson Street,
Arnett Gardens, Jamaica, where three men, including the victim, approached
him with guns. Shots were fired and the deceased was killed, although the
prosecution could not prove whose bullet killed the deceased.
Among the evidence relied upon by the prosecution was the testimony
of witness Christopher Smelke, who had appeared as a witness at Mr.
Lamey's first trial and whose testimony had resulted in the re-trial.
Mr. Smelke had died before the time of the re-trial and, despite
counsel's objection, the trial judge allowed his testimony to be read and
made an exhibit at Mr. Lamey's second trial. 27.
Mr. Lamey did not give or call evidence at trial, but gave an
unsworn statement from the dock, in which he denied having been at the
scene of the crime. 28.
The violations of the Convention alleged on behalf of Mr. Lamey can
be categorized as follows: 1) violations of Article 4(1), 4(6), 5, 8 and
24 relating to the mandatory nature of the death penalty under the Offences
Against the Person Act and the process for granting of amnesty, pardon
or commutation of sentence in Jamaica; 2) violations of Articles 4 and 5
relating to the victim's conditions of detention, time in detention, and
the reading to the victim by the State of two warrants of execution; 3)
violations of Articles 8(2) relating to the State's rules governing
communications between prison inmates and their attorneys; and 4)
violation of Articles 24 and 25 relating to the unavailability of legal
aid for Constitutional Motions in Jamaica. Kevin
Mykoo (Case 11.843) 29.
Mr. Mykoo was charged together with his co-defendant Martin Dixon
with the July 3, 1994 murder of the deceased Jamai Vege.
Mr. Mykoo was convicted on February 15, 1996 of murder in the
course or furtherance of robbery and sentenced to death.
He subsequently appealed his conviction and sentence to the Court
of Appeal of Jamaica, and his appeal was dismissed on April 14, 1997.
A Notice of Intent to Petition the Judicial Committee of the Privy
Council was given, but on advice of leading and junior counsel that there
were no grounds for such a petition and that any petition was bound to
fail, an appeal to that Court was not pursued. 30.
The deceased's murder took place in a bar called the Tamarind Tree
in Runaway Bay, Jamaica. According
to the prosecution, a number of men entered the bar, shot the deceased,
and ransacked the premises, taking money, liquor and jewelry.
The men then escaped in a black Pathfinder van.
The van, and a motorcycle that had preceded the van, were
eventually stopped at a roadblock. The
van then burst into flame, and there was a shooting incident involving the
men in the van and two police detectives.
Two days later, Mr. Mykoo was arrested at his home, where the
police also seized some jewelry. Later, the victim took the police to a
gully and pointed out a gun, to which a spent cartridge found in the bar
was later linked. 31.
The evidence relied upon by the prosecution included the testimony
of a customer at the bar, Noel Brown, who identified the victim and also
claimed that some of the jewelry found at Mr. Mykoo's home belonged to
him. The prosecution also
presented the identification evidence of a bar maid, Surphina Taylor, and
the victim was recognized by police witnesses as having been in the
Pathfinder vehicle and at the roadblock shooting. Other evidence tendered
by the prosecution included a purported admission by the victim that he
was present at the roadblock when the Pathfinder van burned out, clothing
found at the victim's house that were identified as similar to clothes
that the police alleged he was wearing in the Pathfinder van, and
statements made by the victim to the police following his arrest, and
which were subsequently admitted into evidence, in which he admitted
having been a party to the robbery but denied the shooting. 32.
At his trial, Mr. Mykoo gave an unsworn statement from the dock to
the effect that the jewelry to which witness Noel Brown claimed ownership
did not belong to the witness. 33.
The violations of the Convention alleged on behalf of Mr. Mykoo can
be categorized as follows: 1) violations of Articles 2, 4 and 5 relating
to the mandatory nature of the death penalty under the Offences
Against the Person Act and the process for granting amnesty, pardon or
commutation of sentence in Jamaica; 2) violations of Articles 4 and 5
relating to the victims' treatment while in detention and his conditions
of detention; 3) violations of Articles 7(5) and 7(6) in connection with
the delay in bringing the victim before a judicial officer following his
arrest; 4) violations of Article 8 relating to the delay in permitting the
victim to consult an attorney following his arrest, and to the State's
laws governing communications between death row inmates and their
attorneys; and 5) a violation of Article 25 relating to the unavailability
of legal aid for Constitutional Motions in Jamaica.
Milton
Montique (Case 11.846) and Dalton Daley (Case 11.847) 34.
Mr. Montique and Mr. Daley were both charged with the March 18,
1992 murders of the deceased Juliet Martin, Dolores Campbell and Andrew
Blake. Both victims were
convicted on three counts of murder committed in the course or furtherance
of an act of terrorism on November 7, 1994 and sentenced to death.
Mr. Montique and Mr. Daley subsequently appealed their convictions
to the Jamaican Court of Appeal, and their appeals were dismissed on
October 23, 1995. The victims
then lodged a Petition for Special Leave to Appeal to the Judicial
Committee of the Privy Council on February 20, 1996, which the Registrar
and the Government of Jamaica subsequently agreed to hold in abeyance
pending the decision of the Privy Council in another case, Leroy Lamey v. The Queen. Following
the issuance of its May 20, 1996 judgment in the Lamey case, on July 11, 1996 the Judicial Committee of the Privy
Council granted Mr. Montique and Mr. Daley Special Leave to Appeal as Poor
Persons, on the limited question of whether there was any evidence to
support their convictions for capital murder.
Their appeals were allowed on December 8, 1997, with the Privy
Council finding that Mr. Montique should not have been found guilty of the
capital murder of Juliet Martin and Andrew Blake but rather only the
non-capital murder of each of them. Similarly,
the Privy Council found that Mr. Daley should not have been found guilty
of the capital murder of Dolores Campbell but rather only of her
non-capital murder. The defendants' death sentences were nevertheless
maintained under Section 3(1A) of the Offences
Against the Person Act, as a result of their convictions for more than
one non-capital murder on the same occasion. 35.
According to the facts underlying the victims' convictions, on the
night of March 19, 1992 there was a shooting incident on the ground floor
of a four-story apartment block at 9 Blunt Street, Denham Town, Jamaica.
According to the prosecution's case, there was only one
eye-witness, George Brown, who claimed that he saw three people shot and
wounded: Juliet Martin, a female neighbor; Dolores Campbell, another
neighbor; and a young boy whom he called Andrew.
Brown gave a statement to the police in which he made no mention of
having seen the shootings take place, and subsequently gave evidence
during the preliminary inquiry and at trial in which he indicated that he
had seen Mr. Montique and Mr. Daley fire gun shots around the apartment
block. The prosecution also relied upon the evidence of Hyacinth Sterling,
the mother of the deceased Juliet Martin, who testified to having seen a
group of men, including the victims, load a gun, walk in the direction of
Blunt Street, and then heard shots from that direction. Ms. Sterling also
picked Mr. Daley out of an identification parade. No identification parade was held for Mr. Montique. Ms.
Sterling subsequently identified both of the victims at trial. 36.
During the course of the trial, the defense made a submission of
"no case to answer" based upon the quality and reliability of
the identification evidence. The submission was made in the presence of
the jury and was rejected by the trial judge. Neither Mr. Montique nor Mr.
Daley gave evidence at trial, but both made unsworn statements from the
dock. In his statement, Mr.
Montique alleged that his brother had called him at work on March 18 and
that they had gone together to the Hannah Town Police Station in order to
call their other brother in Canada. Mr.
Montique indicated further that after making the call, he returned to his
home on Mulgrave Avenue, and claimed that he knew nothing of the murders.
Dalton Daley similarly claimed that he was innocent and knew
nothing of the murders. 37.
The violations of the Convention alleged on behalf of Mr. Montique
and Mr. Daley can be categorized as follows: 1) violations of Articles
4(1), 4(6), 5, 8 and 24 relating to the mandatory nature of the death
penalty under the Offences Against
the Person Act and the process for granting amnesty, pardon or
commutation of sentence in Jamaica; 2) violations of Articles 4 and 5
relating to the victims' treatment in detention and their conditions of
detention; 3) violations of Articles 7(5) and 7(6) in connection with the
delays in bringing the victims before a judicial officer following their
arrests; 4) violations of Articles 7(5) and 8(1) in connection with the
delays in bringing the victims to trial; 5) violations of Articles 4 and 8
in connection with the delay in permitting the victims to consult with
attorneys following their arrests, the failure of the victims' attorneys
to properly investigate their alibi defenses, and the State's laws
governing communications between death row inmates and their attorneys;
and 6) violations of Articles
24 and 25 relating to the absence of legal aid for Constitutional Motions
in Jamaica. 2.
Positions of the
Petitioners on the Merits a.
Articles
4, 5, 8, 24 and 25 - Mandatory Nature of the Death Penalty and the
Prerogative of Mercy i.
Mandatory Nature of the
Death Penalty 38.
All four of the petitions that are the subject of this report
allege that the State acted contrary to one or more of Articles 4(1),
4(6), 5, 8, and 24 of the American Convention by sentencing the victims to
a mandatory death penalty for the crime of capital murder or for
committing more than one non-capital murder.
In particular, the Petitioners argue that although the death
penalty is only imposed in capital murder and multiple non-capital murder
cases, the distinction between these categories of murder fail to allow
for considerations of the particular circumstances of each offense and
offender, including relevant aspects of the character and record of each
convicted defendant. The
Petitioners therefore argue that the mandatory death penalty is cruel,
inhumane and degrading, is an arbitrary and disproportionate punishment
and violates the right to a fair trial. The Petitioners have also argued
that the process for granting amnesty, pardon or commutation of the
sentence in Jamaica does not remedy these violations, and in itself
violates Article 4(6) of the Convention. 39.
In support of their position that the mandatory death penalty for
capital and multiple non-capital murder contravenes the American
Convention, the Petitioners refer to decisions of the highest courts of
several common law countries, including the United States of America,[13] the Republic of South Africa[14]
and India,[15] where the death penalty has, at least until recently,
been retained. According to
the Petitioners, these authorities support the proposition that States
that wish to retain the death penalty must distinguish between capital and
non-capital murder. States
must also provide for some form of "individualized sentencing",
where victims are permitted to present mitigating factors concerning the
particular circumstances of the case and the personal characteristics of
the offender in determining whether the death penalty is an appropriate
punishment. 40.
The Petitioners therefore argue that the mandatory death penalty
for capital and multiple non-capital murder in Jamaica interferes with the
victims' right to life by imposing a sentence of death automatically and
irrespective of the circumstances, and therefore violates Article 4(1) of
the Convention. 41.
Each of the Petitioners also claims that the mandatory death
penalty violates the right to humane treatment under Article 5 of the
Convention. Cumulatively,
they argue that, because of the wide variety of circumstances in which
capital or multiple non-capital murder may be committed, the mandatory
death penalty fails to retain a proportionate relationship between the
circumstances of the actual crime, the offender and the punishment.
In this regard, they submit that the manner in which the death
penalty is carried out can be determined to be cruel, inhuman or degrading
on the basis that it is arbitrary and disproportionate, even if the death
penalty itself is not unlawful. They
also contend that it is cruel to impose the death penalty where there is
no mechanism to take into account the particular circumstances and
characteristics of the offender. 42.
The Petitioners in the four cases currently under consideration by
the Commission also argue violations of Article 8 of the Convention,
because the Constitution of Jamaica does not permit the victims to argue
that their executions are unconstitutional as cruel and unusual, nor does
it afford the victims a right to a hearing or a trial on the question of
whether the penalty should be either imposed or carried out. 43.
Finally, the Petitioners in these cases argue that the mandatory
nature of the death penalty violates Article 24 of the Convention.
Essentially, they claim that the mandatory death penalty deprives
offenders of equality before the law, as offenders are not permitted to
bring mitigating circumstances into consideration in order to
differentiate their cases from those of others likely to face the death
penalty. In this respect, the
Petitioners claim that there is no accommodation for consistency in like
and unlike cases, and therefore that the death penalty is applied in an
arbitrary, and therefore inequitable, manner.
In addition, the Petitioners maintain that although the mandatory
nature of the death penalty presents a form of equality by treating all
capital murders the same, it has the effect of imposing a uniform sentence
for unequal offenses, and thereby creates substantive inequality between
offenders.
ii.
Prerogative of Mercy 44.
The Petitioners further submit that, insofar as the rigors of the
death penalty are mitigated by the power of pardon and commutation by the
Jamaican Privy Council under Articles 90 and 91 of the Constitution of
Jamaica, there are no criteria governing the exercise
of the executive's discretion.[16] They also claim that there is no information as to
whether the power is exercised on an accurate account of admissible
evidence as to facts relating to the circumstances of an offense, and that
there is no opportunity for a defendant to make oral or written
representations as to whether the death sentence should be carried out.
In addition, the Petitioners cite the decision of the Judicial
Committee of the Privy Council in the case Reckley
v. Minister of Public Safety (Nş 2) [1996] 2 W.L.R. 281, for the
proposition that the exercise of the power of pardon involves an act of
mercy that is not the subject of legal rights and therefore is not subject
to judicial review. Consequently, the Petitioners claim that the exercise
of the Prerogative of Mercy does not provide an adequate mechanism for
individualized sentencing. 45.
Moreover, the Petitioners allege that the State has violated the
victims' rights under Article 4(6) of
the Convention, because no procedural protections are provided by the
Jamaican Privy Council when considering whether to exercise the
Prerogative of Mercy in a particular case.
The Petitioners contend in this connection that the process of
mercy lacks criteria governing the State's discretion since the Jamaican
Privy Council meets in private, fails to provide or publish reasons for
its decisions, and does not permit prisoners to appear and make
representations. Therefore,
the Petitioners argue that the State fails to properly consider petitions
for amnesty, pardon or commutation in accordance with Article 4(6) of the
Convention because there is no criteria governing the exercise of the
Governor-General's discretion, no possibility to draw attention to
particular facts of a victim's case, and no way of knowing on what basis
the discretion is ultimately exercised.
The Petitioners also argue that much of the information that the
Privy Council requires to make a proper decision concerning amnesty,
pardon or commutation is in the knowledge of the offender and his or her
family, but that no mechanism exists for this information to be presented
to the Privy Council. 46.
Also according to the Petitioners, in practice decisions as to
mercy in Jamaica are taken without any input for the prisoner, and often
times the first the prisoner knows that he or she has been denied mercy is
when a death warrant is read. They note in this regard that each of the victims in the four
present cases was the subject of at least one death warrant, that none of
the victims has received a commutation of his sentence, and that in no
case was the victim aware that he had been denied clemency until the
warrant was read to him. 47.
The Petitioners emphasize that the right in Article 4(6) of the
Convention to apply for mercy must be interpreted as an effective right.
They argue in this respect that, in order to be fair and effective,
the process for granting amnesty, pardon or commutation of sentence should
provide the victims with the right to be notified of the date upon which
the Jamaican Privy Council considers his or her case, the right to be
supplied with the materials before the Privy Council and the right to
submit materials and representations prior to the hearing.
The Petitioners also claim that condemned prisoners should be
afforded the right to an oral hearing before the Privy Council, and to
place before the Privy Council and to have it consider the decisions and
recommendations of international human rights bodies. b.
Articles 4, 5, 7 and 8 - Delay in Victims' Criminal Proceedings 48.
The Petitioners in the four cases that are the subject of this
Report have alleged violations of one or more of Articles 7(5), 7(6) and
8(1) of the Convention, on the ground that the victims were denied the
right to be brought promptly before a judge subsequent to their arrest and
were denied the right to be tried within a reasonable time.
In each of these cases, the victims were detained by authorities in
Jamaica from the date of their arrest to the date of their final appeal
before the Judicial Committee of the Privy Council. 49.
First, in two of the cases, Case Nos. 11.846 (Milton Montique) and
11.847 (Dalton Daley), the Petitioners alleged that the State subjected
the victims to prolonged pre-trial delays, and thereby failed to try the
victims within a reasonable time contrary to Articles 7(5) and 8(1) of the
Convention. The delays
alleged to have occurred in the victims' criminal proceedings are set out
below, based upon the history of the victims' proceedings as described in
Part III.A.1 of this Report. Table
3
[ Table of Contents | Previous | Next ] [1]
Section 2(1) of the Act defines "capital murder" as
including murder committed against certain persons by virtue of their
employment, position or status, for example law enforcement officials
and judicial officers. It also includes murder committed in the course
or furtherance of certain other crimes, including robbery, burglary,
housebreaking, and arson in relation to a dwelling house. Section 2(3)
defines non-capital murder as murder not falling within section 2(1)
of the Act. The text of these provisions is set out in Part IV.C.1.a
of this Report. [2]
Section 3(1) of the Act provides that "[e]very person who is
convicted of capital murder shall be sentenced to death and upon every
such conviction the court shall pronounce sentence of death, and the
same may be carried into execution as heretofore has been the
practice; and every person so convicted or sentenced pursuant to
subsection (1A), shall, after sentence, be confined in some safe place
within the prison, apart from all other prisoners.
Where by virtue of this section a person is sentenced to death,
the form of the sentence shall be to the effect only that he is to
'suffer death in the manner authorized by law.'" [3]
Section 3(1A) of the Act provides that, "a person who is
convicted of non-capital murder shall be sentenced to death if before
that conviction he has (a) whether before or after the 14th
October, 1992, been convicted in Jamaica of another murder done on a
different occasion; or (b) been convicted of another murder done on
the same occasion." [4]
In Case Nş 11.826 (Leroy Lamey), the victim had previously been
convicted of non-capital murder. He was then convicted of a second
murder, which, on appeal, was found by the Jamaican Court of Appeal to
constitute non-capital murder. As a consequence of his previous
conviction for non-capital murder, however, the Jamaican Court of
Appeal determined that a death sentence was the punishment required
under Section 3B(3) of the Act for the victim's second non-capital
murder conviction. In
Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley), the
victims were convicted on November 7, 1994 of three counts of capital
murder and sentenced to death. On appeal, the Judicial Committee of
the Privy Council ultimately substituted convictions for non-capital
rather than capital murder. Because each defendant was found
responsible for more than one non-capital murder, however, the
victims' death sentences were maintained. [5]
In Case Nş 11.843 (Kevin Mykoo), the victim was convicted on July 3,
1994 of murder in the course or furtherance of robbery and sentenced
to death. His conviction and sentence were upheld on appeal. [6]
See Case Nş 11.826 (Leroy
Lamey), Report Nş 89/98, Annual
Report of the IACHR 1998, p. 146; Case Nş 11.843 (Kevin
Mykoo), Report Nş 90/98, Annual
Report of the IACHR 1998, p. 152; Case Nş 11.846 (Milton
Montique), Report Nş 88/98, Annual Report of the IACHR 1998, p. 140; Case Nş 11.847
(Dalton Daley), Report Nş 88/98, Annual
Report of the IACHR 1998, p. 140. [7]
The State in Case Nş 11.843 (Kevin Mykoo) delivered a further
response to the Petitioners' observations on May 19, 1998, the
pertinent parts of which were transmitted to the Petitioners on May
22, 1998. [8]
Instructions for dealing with applications from or on behalf of
prisoners under sentence of death to the United Nations Human Rights
Committee or the Inter-American Commission on Human Rights where the
Judicial Committee of the Privy Council has refused a petition or
dismissed an appeal from or on behalf of such prisoner or a petition
or an appeal from or on behalf of such a prisoner to the Judicial
Committee of the Privy Council has been abandoned or withdrawn,
Jamaican Gazette (Extraordinary), Vol. CXX, Nş 84 (7 August 1997)
(hereinafter the "Governor General's Instructions"). [9]
Governor General's Instructions, Section 1 (defining
"International Human Rights bodies" for the purposes of the
Instructions as the United Nations Human Rights Committee and the
Inter-American Commission on Human Rights). [10]
Governor General's Instructions, Sections 2, 3. [11]
Under Sections 4 to 10 of the Governor General's Instructions,
prisoners were permitted to petition both International Human Rights
Bodies, and each body was limited to six months during which it was
required to advise the Governor General of the outcome of the
prisoner's petition. [12]
J.C.P.C., Neville Lewis et al.
v. The Attorney General of Jamaica and the Superintendent of St.
Catherine District Prison, Privy Council Appeals Nos. 60 of 1999,
65 of 1999, 69 of 1999 and 10 of 20000 (12 September 2000), p. 33. [13]
Woodson v. North Carolina,
428 U.S. 280 (1976) (U.S. Supreme Court). [14]
The State v. Makwanyane and
McHunu, Judgement, Case Nş CCT/3/94 (6 June 1995) (Constitutional
Court of the Republic of South Africa). [15]
Bachan Singh v. State of Punjab,
(1980) 2 S.C.C. 684 (Supreme Court of India). [16]
Articles 90 and 91 of the Constitution of Jamaica provide as follows:
90.(1) The Governor
General may, in Her Majesty's name and on Her Majesty's behalf- (a) grant to any person convicted of any offence against the law of Jamaica a pardon, either free or subject to lawful conditions; (b)
grant to any person a respite, either indefinite or for a
specified period, from the execution of any punishment imposed on that
person for such an offence; (c)
substitute a less severe form of punishment for that imposed on
any person for such an offence; or (d) remit the whole or part of any punishment imposed on any person for
such an offence or any penalty or forfeiture otherwise due to the
Crown on account of such an offence. (2) In the exercise of the powers conferred on him by this section the
Governor-General shall act on the recommendation of the Privy Council. 91.(1)
Where any person has been sentenced to death for an offence against
the law of Jamaica, the Governor-General shall cause a written report
of the case from the trial judge, together with such other information
derived from the record of the case or elsewhere as the
Governor-General may require, to be forwarded to the Privy Council so
that the Privy Council may advise him in accordance with the
provisions of section 90 of this Constitution. (2) The power of requiring information conferred on the
Governor-General by subsection (1) of this section shall be exercised
by him on the recommendation of the Privy Council or, in any case in
which in his judgement the matter is too urgent to admit of such
recommendation being obtained by the time within which it may be
necessary for him to act, in his discretion. [ Table of Contents | Previous | Next ] |