...continued 

50.            In each of these cases, the Petitioners have alleged that the delays in bringing the victims to trial were unreasonable.  Cumulatively, they submit that the delay in each case is attributable to the State,[17] and suggest that the evidence in the victims' criminal cases was not particularly complex, as it essentially consisted of the testimony of a limited number of eye-witnesses.  In this regard, the Petitioners reject the State's contention that the delays were attributable to the nature of the cases, and argue that the State has not otherwise offered any adequate explanation for the delays in bringing the victims to trial, which the Petitioners claim are excessive in light of existing international standards.[18]  

51.            The Petitioners in these cases also submit that the delay in trying the victims resulted in prejudice to their cases, by undermining their ability to put forward alibi defenses.  In particular, they argue that the evidence of identification in each case was weak to begin with, and therefore that any delay could only serve to weaken the witness' powers of recall even further.  

52.            In addition, in three of the cases presently under consideration by the Commission, Case Nos. 11.843 (Kevin Mykoo), 11.846 (Milton Montique) and 11.847 (Dalton Daley), the Petitioners allege that the State is responsible for violations of Article 7(5) and 7(6) of the Convention, by reason of the delay in bringing the victims before a judge following their arrests.  In particular, the Petitioners in Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley) claim that the victims in these cases were detained for one month following their arrests prior to being brought before a judicial officer, and the Petitioners in Case Nº 11.843 (Kevin Mykoo) allege that Mr. Mykoo was detained by authorities for four months prior to being brought before a judge.  Cumulatively the Petitioners in these cases argue that according to prevailing international human rights jurisprudence, a person arrested or detained must be brought "promptly" before a judicial officer, and that such delay must not exceed "a few days".[19]  

53.            With respect to Article 7(6) of the Convention, the Petitioners argue that a person deprived of his or her liberty must have recourse to a competent court for the purpose of determining the lawfulness of his or her detention.  In the circumstances of the victims in Case Nos. 11.843 (Kevin Mykoo), 11.846 (Milton Montique), and 11.847 (Dalton Daley), the Petitioners claim that as they were not brought promptly before a judge pursuant to Article 7(5) of the Convention, they were not in due time afforded the opportunity to obtain on their own initiative a decision by a court as to the lawfulness of their detentions, contrary to Article 7(6) of the Convention. 

54.            In response to the State's argument that the victim in Case Nº 11.843 (Kevin Mykoo) should have brought his allegations of prolonged detention to the attention of the magistrate who dealt with his case, the Petitioners argue that the victim was not required to do so, as this would not have afforded him any grounds for relief in domestic courts.  Rather, according to the Petitioners, the victim could only have brought such a claim by way of Constitutional Motion, which the Petitioners claim he could not do because of the absence of legal aid for such proceedings.  

a.             Article 5 - Treatment in and Conditions of Detention  

55.            The Petitioners in each of the four cases that are the subject of this report also allege that the treatment received by the victims while in detention, and/or the conditions in which the victims have been detained by the State, together with the time spent there, constitute violations of each victims' rights under Article 5(1) of the Convention to have his physical, mental and moral integrity respected, as well as the right not to be subjected to cruel, inhuman or degrading punishment or treatment under Article 5(2) of the Convention.  In their observations, the Petitioners provided information as to the general conditions of detention facilities in Jamaica.  The Petitioners also provide information as to the particular conditions of detention experienced by the victims in each of their cases.  Further, the Petitioners in Case Nº 11.823 (Leroy Lamey) allege that the State is responsible for further violations of Article 5 of the Convention, in connection with the reading of two warrants of execution to Mr. Lamey. 

            i.                  Allegations of Fact 

56.            With respect to the conditions of detention facilities in Jamaica generally, the Petitioners refer to reports prepared by various governmental and non-governmental organizations respecting the State's prison conditions.  These include Americas Watch: Prison Conditions in Jamaica (May 1990); Jamaica Prison Ombudsman: Special Report on Prison and Lock Ups (1983); Americas Watch: Death Penalty, Prison Conditions and Police Violence (April 1993); Jamaica Council for Human Rights: A Report on the Role of the Parliamentary Ombudsman in Jamaica (Summer 1994); and Amnesty International: Proposal for an Inquiry into Death and Ill-treatment of Prisoners in St. Catherine's District Prison (December 1993).  These reports include information regarding the physical conditions of the prisons and prisoners, the treatment of prisoners by prison staff, the status of medical, educational and work facilities and programs, and the availability and effectiveness of internal complaint mechanisms in various prisons and lock up facilities in Jamaica. 

57.            According to these reports, conditions of detention facilities in Jamaica are poor, and in many instances fall short of international standards.  According to Americas Watch, for example, the conditions in the prisons and lock-ups in 1993 "continued to be extremely poor and in violation of international standards for as long as Americas Watch has been investigating them." 

58.            The Petitioners cumulatively report that the victims are detained on death row in St. Catherine's District Prison, which was built in the 18^th century and was formerly a slave market.  The Petitioners submit that the victims are locked in cells approximately 8 feet by 5 feet in size, for 23 hours a day, and are deprived of a mattress or other bedding and adequate sanitation.  They also claim that the victims' cells have inadequate ventilation and no electric light.  No or inadequate medical or psychiatric care is provided to prisoners, and the food and water provided for prisoners are below acceptable standards. The Petitioners also state that there are no adequate or effective complaint mechanisms for dealing with prisoners' complaints. 

59.            The Petitioners in all of the cases also provided particulars of the conditions of detention alleged to have been experienced by the victims in these cases, as set out below. 

Leroy Lamey (Case 11.826) 

60.            The Petitioners in Case Nº 11.826 (Leroy Lamey) allege violations of Article 5(1) and 5(2) of the Convention, due to the length and conditions of the victim's detention, as well as the fact that the State read two execution warrants to the victim.  

61.            In particular, in addition to general conditions of the nature described above, the victim claims that he has not eaten regularly during his time in detention, as the food served in prison is often inedible.  He also claims that the State read two warrants of execution to him, one in January 1995 for his execution on January 26, 1995, and the other on May 22, 1997 for his execution on June 10, 1997, as a consequence of which he was subjected to intense mental anguish and prolonged psychological suffering. Contributing to these effects were the circumstances under which the warrants were read, including the fact that the warrants were announced formally and unexpectedly, that the victim was transferred to a condemned cell in an isolated part of the prison adjacent to the gallows, and that he was subjected to various special pre-execution procedures.  In light of these circumstances, the Petitioners contend that the State is responsible for violations of the victims' rights under Article 5(1) and 5(2) of the Convention.  

62.            In response to the State's contention that the alleged victim failed to properly inform the Jamaican Privy Council of his proceedings before international human rights bodies and thereby secure of stay of the issuance of warrants of execution, the Petitioners argue conversely that proper notice had been given to the appropriate State authorities on both occasions of the victim’s intention to petition the Judicial Committee of the Privy Council for Special Leave to Appeal as a Poor Person.  They further argue that in any event, it is the fact of, and not the reason for, the victim's treatment that lies at the heart of his complaint in this respect.  

Kevin Mykoo (Case 11.843) 

63.            In addition to conditions of detention of the general nature described above, the Petitioners in Case Nº 11.843 (Kevin Mykoo) alleged that the State has violated Mr. Mykoo's rights under Article 5(1), 5(2) and 5(4) of the Convention, due to specific instances of ill-treatment he is said to have experienced while in detention.  

64.            In particular, the Petitioners contend that following his arrest, the victim was detained by authorities for questioning, during which time the police subjected the victim to various forms of ill-treatment.  According to the Petitioners, these included an attempt to strangle the victim by putting his head in a car window and raising the window against his neck, threatening to cut off the victim's private parts if he did not answer their questions, beating him with guns, and subjecting him to electric shocks until he signed a confessed statement.  

Milton Montique (Case 11.846) and Dalton Daley (Case 11.847) 

65.            The Petitioners in Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley) make similar and specific claims respecting their condition of detention, which they have supported through affidavits sworn by both of the victims.[20] According to their affidavits, and consistent with the general conditions described above, both of the victims are detained in the "Gibraltar" block of St. Catherine District Prison, in 8 foot by 5 foot cells where they are held in constant solitary confinement.  The lighting in their cells is inadequate, and blocks of concrete serve as their beds, with pieces of foam as mattresses. The victims are provided with buckets to use as toilets, and the cells are not hygienic and are crawling with roaches and other insects.  The water and food are below standard, with the inmates often being fed only flour and rice, and the victims are allowed out of their cells for approximately 45 minutes daily, during which time they must "slop out", wash their clothes, and exercise.  Access to medical attention is also said to be inadequate.  In addition, the victims claim that due to an incident at the prison on March 5, 1997 when prisoners attempted to escape, the death row cells were searched and warders confiscated many of the victims’ personal belongings, even though they were not involved in the attempted escape.  

66.            Finally, the victim in case Nº 11.846 (Milton Montique) claims to have complained to the Superintendent about the treatment that he has received but has received no response, and the victim in Case Nº 11.847 (Dalton Daley) claims that following his arrest, the police threw tear gas into his cell and that the fire brigade had to be called to spray water into his cell in order to clear it. 

ii              Allegations of Law 

67.            With respect to the legal standards that should be considered in determining whether treatment and conditions while in detention violate Article 5 of the Convention, the Petitioners in the cases before the Commission cumulatively rely upon several provisions of the United Nations Standard Minimum Rules for the Treatment of Prisoners. These include Article 10, which states that all accommodation provided for the use of prisoners shall "meet all requirements of health, due regard being paid to climatic conditions and particularly cubic content of air, minimum floor space, lighting, heating and ventilation."[21] 

68.            The Petitioners also cite several comments and decisions of the U.N. Human Rights Committee and the European Court of Human Rights regarding humane treatment in the context of prison conditions.  These include the U.N. Human Rights Committee's General Comments 7(16) and 10(1) regarding states' obligations in providing humane conditions of detention, as well as decisions of the Committee in such cases as De Voituret v. Uruguay, U.N. Doc. A/39/40, in which the Petitioners claim that the Committee found solitary confinement for three months in a cell almost without natural light to violate the detainee's rights.  The Petitioners similarly refer to the Greek Case,[22] in which, according to the Petitioners, the European Commission and Court of Human Rights found that prison conditions may amount to inhuman treatment, where those conditions involve overcrowding, inadequate toilet and sleeping arrangements, inadequate food and recreation, and incommunicado detention.  

69.            Moreover, the Petitioners in Case Nos. 11.843 (Kevin Mykoo), 11.846 (Milton Montique), and 11.847 (Dalton Daley) submit that the detention of the victims in these cases in inhumane and degrading conditions should be considered to render the carrying out of their death sentences unlawful.  In support of this position, the Petitioners rely upon the finding by the Judicial Committee of the Privy Council in the Pratt and Morgan v. Attorney General of Jamaica [1994] 2 A.C. 1 (P.C.) case that prolonged post-conviction detention can render a subsequent execution unlawful. 

70.            In response to the State's contention in Case Nº 11.847 (Dalton Daley) that medical treatment is available to inmates at St. Catherine District Prison, the Petitioners in that case argue that this claim does not meet those aspects of their complaint that relate to such matters as poor food, inadequate sanitation, inhuman housing conditions, and the lack of an effective complaints mechanism for inmates.  The Petitioners also contend that the State's reliance upon its status as a "developing" country to excuse these conditions is not well-found, as in their view the guarantees in the Convention are absolute and cannot depend on economics.  

b.             Article 8(1) and 8(2) - Right to a Fair Trial 

71.            The Petitioners in the four cases within this report argue that the State has violated the rights of the victims in these cases to a fair trial under Article 8 of the Convention, based upon the laws in Jamaica governing communications between death row inmates and their attorneys, which the Petitioners allege are inconsistent with Article 8(2)(c) and (d) of the Convention.  In addition, the Petitioners in Case Nos. 11.843 (Kevin Mykoo), 11.846 (Milton Montique) and 11.847 (Dalton Daley) allege further violations of the victims' rights under Article 8(2)(b), (d) and (e) of the Convention, for the reason that they were kept in custody for prolonged periods before being permitted to consult attorneys.  Finally, the Petitioners in Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley) claim violations of the victims' rights under Article 8(1) and 8(2)(d) of the Convention, due to the purported failure of the victims' attorneys to properly investigate their alibi defenses and call witnesses in support.  

72.            First, the Petitioners in the four cases under consideration allege that Rule 296(4) of the Prison Rules of Jamaica is inconsistent with the victims' rights to access to counsel and to a court under Article 8(2)(c) and (d) of the Convention.  Rule 296(4) reads: 

All visits to prisoners under sentence of death, whether by legal officers or others, shall take place in the sight and hearing of a prison officer, notwithstanding that such visit may be in relation to an appeal. 

73.            The Petitioners rely upon a number of decisions of the European Court of Human Rights, including those in Golder v. U.K. (1980) 1 E.H.R.R. 524 and Campbell and Fell v. U.K. (1984) 7 E.H.R.R., for several propositions.  First, they argue that Article 6(1) of the European Convention on Human Rights, governing the right of access to court, permits restrictions upon an individual's right to access court but only where the limitation pursues a legitimate aim and is proportionate to that objective.  Further, the Petitioners suggest that unimpeded access to a lawyer for the purpose of receiving advice and assistance in connection with the possible institution of legal proceedings is an inseparable part of the right of access to court.  Consequently, the Petitioners claim that a prisoner's right of access to court guaranteed by Article 6(1) is contravened by the application of a general prohibition on privileged oral communications between prisoners and their lawyers prior to the commencement of litigation that is not dependent on specific security considerations. 

74.            Accordingly the Petitioners claim that Rule 296(4) of the Jamaican Prison Rules is drafted in general and absolute terms and applies to all prisoners sentenced to death, irrespective of whether particular security concerns arise.  They further claim that there is nothing inherent in the status of a prisoner as one sentenced to death which gives rise to a need for the imposition of a rule prohibiting privileged communications between solicitor and client.  The Petitioners therefore argue that the State is responsible for further violations of Article 8(2) and (d) of the Convention in respect of the victims. 

75.            The Petitioners in Case Nos. 11.843 (Kevin Mykoo), 11.846 (Milton Montique) and 11.847 (Dalton Daley) also contend that the victims in these cases were held in custody for, respectively, three months, two months, and three months, following their arrests before they were permitted to consult with attorneys, contrary to Article 8(2)(c) and (d) of the Convention.  In support of this contention, the Petitioners rely upon questionnaires prepared by the victims, and cite the decision of the U.N. Human Rights Committee in the case Perdomo and de Lanza v. Uruguay, U.N. Doc. A/35/40, for the proposition that in order to comply with Article 14(3)(b) of the International Covenant on Civil and Political Rights, a defendant must be given access to his or her lawyer.  

76.            Finally, the Petitioners in Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley) allege further violations of Article 8(1) and 8(2)(d) of the Convention, due to the failure of the victims' attorneys to investigate their alibi defenses and to call witnesses in support. 

77.            In particular, the Petitioners contend that the victims had alibis for the night of the murders.  Milton Montique claims that he was at work when he received a telephone call from his brother who wanted to see him in Hannah Town, and that he left work, met his brother in Hannah Town, and went to the Hannah Town Police Station to telephone their brother in Canada.  The Petitioners also argue that Mr. Montique told his state-appointed counsel that he had an alibi for the night of the murders and gave him the names of the witnesses who could verify his movements, but that his attorney failed to investigate the alibi and that no evidence was called in support of it.[23] Consequently, the only evidence in respect of this alibi at trial was the victim's unsworn statement from the dock, which, according to the Petitioners, would not have been given appropriate weight by the jury.  The Petitioners further indicate that in March 1996 they attempted to contact the victim's trial counsel to obtain information concerning the efforts carried out with respect to locating potential witnesses for the victim's defense, but with no result.  

78.            The Petitioners in Case 11.846 (Milton Montique) also indicate that they have since the victim’s trial gathered evidence which suggests that a considerable amount of evidence could have been called in support of the victim's alibi, had his attorney undertaken sufficient inquiries, including: a sworn statement obtained from the victim's brother stating that he and Mr. Montique went to the Hannah Town Police Station to telephone their older brother in Canada; sworn statements from the victim and Mr. Delroy Laing; the evidence of PC Amin, who was not called as a witness at trial, but who, according to Hyacinth Sterling's testimony, said that she must have been mistaken when she identified the victim as the killer because he had seen the victim at the police station on the night of the murders; and a letter to the Petitioners from Dalton Daley's mother and a statement of Paulette Muirhead, indicating that Hyacinth Sterling was not present at the building on Upper Oxford Street on the night of the murders but was staying elsewhere, and thus could not have identified the two defendants, but was only informed of the murders on the following morning.  

79.            The victim in Case 11.846 (Dalton Daley) similarly claims that he left work at 4:30 p.m. on the day of the murder and that on the way home he met his friend Keith Osbourne and bought some cigarettes from one Aunt Dolly at a stand at the corner of Drummond Street and Oxford Street.  He further claims that it took him approximately 1/2 hour to reach his home where he lived with his family and that he spent the evening in his yard, ate at approximately 6:00 p.m., and spent the remainder of the evening watching television with his mother and brothers.  At 8:00 p.m., he claims to have laid down, fell asleep, and woke up at 5:30 or 6:00 a.m. the following day and prepared to go to work. He also claims that he told his lawyer that he wanted to present his alibi and corresponding witnesses to the jury but that, after speaking with his mother, his lawyer told him that he could not run his alibi defense, because the witnesses were family members and therefore the Court would not believe them.[24] 

80.            Based upon these circumstances, the Petitioners argue that the State is responsible for violations of Article 8 of the Convention, and correspondingly Article 4, due to the failure of the victims' court-appointed counsel to investigate their alibis, in that the behavior of their counsel fell below the standards of trial preparation that are internationally recognized as being acceptable.  In support of this proposition, the Petitioners point to the case law of domestic courts, including that of the English Court of Appeal, respecting the duty of counsel to fully investigate any alibi his or her client may have.[25] 

81.            The Petitioners also refer to domestic and international jurisprudence respecting the standards governing the conduct of defense counsel more generally.  They claim in this respect that Article 8(2) of the Convention, like Article 14 of the International Covenant on Civil and Political Rights, prescribe two basic elements concerning the proper administration of justice, a right to equality before the courts, and the right to a fair and public hearing by a proper tribunal.  A fair trial in turn requires, among other things, the effective assistance of counsel.[26] Accordingly, the Petitioners argue that Article 8(2)(d) of the Convention should be read so that if the quality of state-appointed counsel's pre-trial preparation or his or her performance in court results in an unfair trial, then Article 8(1) and 8(2)(d) of the Convention is violated.[27] The Petitioners also note that although certain jurisprudence suggests that a failure by legal aid counsel must be manifest or sufficiently brought to the state's attention, they claim that this is precisely the protection to which the victims are entitled under Article 8(1) and 8(2) of the Convention. 

82.            Based upon these submissions, the Petitioners claim that in the present cases, state-appointed counsel failed to undertake a cardinal line of defense and thereby deprived the victims of the right to pursue all available lines of defense in violation of Article 8, and that, short of not having a lawyer at all, there can have been no more manifest failure to act on instructions and put the victims' defenses to the jury.  The Petitioners also claim in this respect that a clear distinction can be drawn between a decision not to call a particular witness taken after thorough consideration and mature reflection, and a failure to investigate at all, such that the latter conduct "strikes at the irreducible kernel of fairness which is the hallmark of a trial conforming to the standards of the American Convention on Human Rights." 

83.            The Petitioners therefore alleged that the State is responsible for violations of Article 8(1) and 8(2)(d) of the Convention in respect of the victims in these cases.  Further or in the alternative, the Petitioners claim that the actions of counsel deprived the victims' of the right to obtain the attendance or examination of witnesses on their behalf under the same conditions as the witnesses against them, contrary to Article 8(2)(f) of the Convention.  

84.            In response to the State's argument that the victims should have complained to the General Legal Counsel in Jamaica respecting the conduct of their attorneys, the Petitioners claim that this would not have provided the victims with an effective remedy, as that body's powers are limited to administering professional sanctions to lawyers, and therefore that the victims would nevertheless have remained on death row at risk of execution.  

c.             Articles 24 and 25 - Unavailability of Legal Aid for Constitutional Motions  

85.            The Petitioners in the four cases currently under consideration by the Commission argue that the State does not provide legal aid for Constitutional Motions, and that this results in a denial of access to court and a denial of effective remedies, in violation of one or more of Articles 24 and 25 of the Convention.  

86.            More particularly, the Petitioners recognize that Article 25(1) of the Constitution of Jamaica provides individuals with the legal right to bring a Constitutional Motion before the Supreme Court.[28] They argue, however, that there is no practical opportunity for the victims to pursue a Constitutional Motion because the proceedings are extremely expensive and beyond the victims' means, and because no legal aid is available for these motions.  Consequently, the Petitioners submit that the State's failure to provide legal aid for Constitutional Motions denies the victims access to the courts and hence to an effective remedy for violations of the Constitution or of the American Convention.  The Petitioners also submit in this regard that the principle of effective access to courts is even more indispensable in capital cases, where a defendant's life and liberty are at stake. 

87.            In support of their arguments, the Petitioners cite decisions of other international human rights tribunals, such as the decision of the European Court of Human Rights in Airey v. Ireland[29] and the U.N. Human Rights Committee in Curry v. Jamaica,[30] for the proposition that individuals must be guaranteed effective access to courts in fact as well as in law, which may require legal assistance in the provision of legal aid.  The Petitioners claim that the unavailability of legal aid in Jamaica in fact deprives the victims of effective access to the courts, and that the State is responsible for violations of Article 25 of the Convention.  

88.            In response to the State's contention that there is now legislation in Jamaica that provides legal aid for pursuing Constitutional Motions, the Petitioners claim that the fact that there may be legislation before Parliament on legal aid did not assist the victims if they could not take advantage of it, due to the fact that it had not yet been proclaimed in force.  Further in this regard, the Petitioners in Case Nº 11.843 (Kevin Mykoo) invited the Commission to hold the victim's case in abeyance until the legal aid legislation in Jamaica is in force and he accordingly has an opportunity to pursue a Constitutional Motion before domestic courts.  

B.                Position of the State on the Merits 

1.                 Articles 4, 5, 8, 24 and 25 - Mandatory Nature of the Death Penalty and the Prerogative of Mercy 

89.            The State did not make any observations in respect of the issue of the mandatory nature of the death penalty in Jamaica, or the adequacy of the process for exercising the Prerogative of Mercy in Jamaica, in any of the four cases presently under consideration by the Commission.  

2.                 Articles 5, 7, and 8 - Delay in the Victims' Criminal Proceedings 

90.            In response to the allegations of the Petitioners in Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley) that the victims in these cases were not brought to trial within a reasonable time in violation of Articles 7(5) and 8(1) of the Convention, the State contends that, while the 2 1/2 year delay between arrest and trial was "longer than desirable", preliminary inquiries were held during this period in both cases.  The State also rejects the contention that a case involving three murders is simple, but rather that it is expected that more time would have been required to adequately prepare such a case.  

91.            With respect to the allegations in Case Nos. 11.843 (Kevin Mykoo), 11.846 (Milton Montique) and 11.847 (Dalton Daley) that the State delayed in bringing the victims before a judge following their arrests in violation of Articles 7(5) and 7(6) of the Convention, the State denies that Mr. Daley was detained for a period of one month before being brought before a judicial officer, that Mr. Montique was detained for one month before being brought before a judge, or that Mr. Mykoo was detained for four months before being brought before a magistrate.  In respect of the allegation in the latter case, the State further indicated that it had "investigated the applicant's allegations" in reaching its conclusion, and has contended in all of the cases that there is no evidence to support the Petitioners' allegations on these points.  

3.                Articles 4 and 5 - Treatment in and Conditions of Detention  

92.            In relation to the allegations in all four cases that are the subject of this report that the victims' treatment while in detention or their conditions of detention violate Articles 4 and 5 of the Convention, the State provided a number of observations. 

93.            With respect to Case Nº 11.843 (Kevin Mykoo), the State argues in respect of the Petitioners' allegation that the victim was subjected to ill-treatment following his arrest that it was open to the victim to raise these allegations at his preliminary inquiry, his trial or his appeal, and therefore that it is not acceptable for the victim to raise these allegations for the first time before the Commission.  The State also indicates that there is no proof to support these allegations, and that raising them at this late stage calls into question their accuracy.  

94.            With respect to the allegations in the same case, as well as those in Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley), that the conditions and time under which the victims have been held render their death sentences unlawful, the  State contends that in the case Pratt and Morgan v. Attorney General of Jamaica, the Judicial Committee of the Privy Council found that a specific period of time on death row constitutes cruel and inhuman treatment contrary to Article 17 of the Jamaican Constitution, but that this period had not been reached in the victims' cases.  The State also claims in this regard that it cannot be reasonably argued that the victims' detention on death row for more than two years while they exhausted their domestic remedies is excessive.  In the State's view, "[a] line must be drawn where a stay on death row, by itself, cannot be categorized as cruel and inhuman treatment, even if it causes some mental trauma to the individual."[31]  

95.            Specifically in respect of the allegation by the Petitioners in Case Nº 11.826 (Leroy Lamey) that the victim's time in death row and the reading to him of two warrants of execution violated his rights under Article 5 of the Convention, the State denies that these circumstances constitute a breach of the Convention.  In addition to referring to the decision of the Judicial Committee of the Privy Council in Pratt and Morgan, as noted above, the State argues that in light of the judicially-prescribed time periods within which executions must be conducted, there is a need for the State to act quickly in order not to breach its domestic law, and that when prisoners choose not to use, with dispatch, the remedies available to them, "the State must ensure that the law take its course." This, according to the State, was the reason that the warrants of execution were issued.  

96.            In its subsequent observations in this case, the State did not dispute that warrants of execution had been read to the victim on two occasions, or that the victim had on those occasions been moved to a "death cell".  The State argues, however, that although the victim had made applications to human rights organizations, he failed to advise the Jamaican Privy Council, the body responsible for issuing warrants of execution, that he had made those applications.  According to the State, if the Privy Council is not advised of the steps taken by applicants to pursue appellate or other remedies, the State "remains under a duty to issue death warrants and allow the law to take its course." The State further argues that this position is consistent with the requirements of the Judicial Committee of the Privy Council's decision in Pratt and Morgan, and notes that as soon as the Jamaican Privy Council was advised of the victim's applications, it rescinded both of the death warrants.  

97.            Finally, in respect of the allegations in Case Nº 11.847 (Dalton Daley) that the victim's conditions of detention violate Article 5 of the Convention, the State acknowledges that the conditions are "less than ideal", but indicates that there is now a medical doctor on staff at the prison and that prisoners are transported to the Spanish Town Hospital when the need arises.  The State also referred the Commission to its "Report on Conditions in Local Prisons" which, according to the State, identifies the difficulties faced by the State, like other “developing countries”, in improving prison conditions.  The State did not include a copy of this report with its observations.  

4.                Articles 4 and 8 - Right to a Fair Trial 

98.            No observations were received from the State respecting the allegation in these four cases that the State's laws governing communications between death row inmates and their attorneys contravene Article 8(2)(c) and (d) of the Convention. 

99.            With regard to the allegation in Case Nos. 11.843 (Kevin Mykoo), 11.846 (Milton Montique) and 11.847 (Dalton Daley) that the alleged victims in these cases were held in custody for prolonged periods of time before they were permitted to see attorneys, the State, in its observations in Case Nº 11.846 (Milton Montique) denied the allegation on the basis that "[t]here is no evidence to support this allegation." Further, with respect to this point in Case Nº 11.843 (Kevin Mykoo), the State contends that if the victim was held for three months before he was permitted to see an attorney, this would be contrary to the Jamaican Constitution and should have been brought to the attention of the magistrate before whom the victim appeared.  Having failed to do so, the State says that the Petitioners should not be allowed to now raise the issue for the first time before the Commission, and suggests that their delay in arguing the matter also raises questions regarding the accuracy of the allegations. 

        100.            Finally, with respect to the allegation in Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley) that the victims' rights under Article 8(1) and 8(2)(d) of the Convention were violated for the purported failure of their trial attorneys to investigate their clients' alibis and call witnesses in support, the State contends that its responsibility is to appoint competent legal aid counsel to represent persons, and that thereafter, the State cannot be held responsible for the manner in which counsel conducts his case. According to the State, if it is felt that counsel did not conduct a client's case in a professional manner according to established standards, the matter may be referred to the General Legal Council, the professional body responsible for maintaining standards in the legal profession.  The State further indicates that this body is not controlled by the State, and that allegations in a complaint made to this body must be complete and sustainable.  

5.                  Articles 24 and 25 - Unavailability of Legal Aid for Constitutional Motions 

101.            In respect of the Petitioners’ arguments pertaining to the alleged absence of legal aid in Jamaica for Constitutional Motions, the State delivered observations in Case Nos. 11.843 (Kevin Mykoo) and 11.846 (Milton Montique).  In the former case, the State argued in its initial observations that there was a new Legal Aid Act in Jamaica that provides legal aid for Constitutional Motions, and that the victim in that case could avail himself of that remedy.  Subsequent to receiving the Petitioners' response, however, the State indicated in supplementary observations that the Legal Aid Act had been passed by both houses of Parliament and assented to by the Governor General and would come into force on a day appointed by the Minister.  The State also rejected the Petitioners' suggestion that the Commission suspend the proceedings before it in order to await the entry into force of the legislation and indicated that the State would regard any such development as a "stalling tactic".  Finally, in its observations in Case Nº 11.846 (Milton Montique), the State indicated, without further elaboration, that it did not accept that it is a violation of the Convention not to provide legal aid for Constitutional Motions.   

IV.                ANALYSIS 

102.            As particularized in Part III.A.1 of this Report, the violations alleged by the Petitioners in the cases currently under consideration by the Commission fall into one or more of the following categories:  

(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. 

A.                  Standard of Review 

103.            In undertaking its review of the merits of the Petitioners' claims in these cases, the Commission wishes to recall and reiterate the heightened level of scrutiny that it considers applicable in capital punishment cases.  According to this standard of review, the Commission will subject the parties' allegations to an enhanced level of scrutiny in order to ensure that any deprivation of life effected by a State Party pursuant to a death sentence complies strictly with the provisions of the Convention, including in particular the right to life provisions under Article 4, the guarantees of humane treatment under Article 5 and the due process and judicial protections guaranteed under Articles 8 and 25 of the Convention.[31] The Commission will therefore analyze the claims in the four cases presently under review in accordance with this standard of review. 

B.                  Articles 4, 5, 8, and 24 - The Mandatory Death Penalty 

1.                  The Victims have been Sentenced to Mandatory Death Penalties  

          104.            The records in the four cases that are the subject of this report indicate that all of the victims have been convicted of capital murder or multiple non-capital murders and sentenced to death.[33] In each case, the sentence was imposed pursuant to legislation in Jamaica that prescribes the death penalty as the only punishment available when a defendant is found guilty of capital murder, or of two or more non-capital murders committed on the same or a different occasion.  

            105.            More particularly, all of the victims have been convicted of capital murder, or of more than one non-capital murder, under Jamaica's Offences Against the Person Act, as amended by the Offences Against the Person (Amendment) Act, 1992 (hereinafter the “Act”).[34]  Article 2(1) of the Act defines capital murder as follows: 

2.(1) Subject to subsection (2), murder committed in the following circumstances is capital murder, that is to say- 

(a) the murder of-

(i)      a member of the security forces acting in the execution of his duties or of a person assisting a member so acting;

(ii)      a correctional officer acting in the execution of his duties or of a person assisting a correctional officer so acting;

(iii)     a judicial officer acting in the execution of his duties; or

(iv)    any person acting in the execution of his duties, being a person who, for the purpose of carrying out those duties, is vested under the provisions of any law in force for the time being with the same powers, authorities and privileges as are given by law to members of the Jamaica Constabulary Force,

or the murder of any such member of the security forces, correctional officer, judicial officer or person for any reason directly attributable to the nature of his occupation;[35]

(b) the murder of any person for any reason directly attributable to-

(i)      the status of that person as a witness or party in a pending or concluded civil cause or matter or in any criminal proceedings; or

(ii)      the service or past service of that person as a juror in any
          criminal trial;

(c) the murder of a Justice of the Peace acting in the execution of his judicial functions;

(d) any murder committed by a person in the course or furtherance of-

(i) robbery;

(ii) burglary or housebreaking;

(ii) arson in relation to a dwelling house; or

(iv) any sexual offence;

(e) any murder committed pursuant to an arrangement whereby money or anything of value-

(i)       passes or is intended to pass from one person to another or to a third party at the request or direction of that other person; or

(ii)      is promised by one  person to another or to a third person at the request or direction of that other person,

as consideration for that other person causing or assisting in causing the death of any person or counselling or procuring any person to do any act causing or assisting in causing that death;

(f)      any murder committed by a person in the course or furtherance of an act of terrorism, that is to say, an act involving the use of violence by that person which, by reason of its nature and extent, is calculated to create a state of fear in the public or any section of the public.                 

            106.            Article 3(1) of the Act in turn prescribes the death penalty as the mandatory punishment for any person convicted of a capital offence as defined under Article 2 the Act: 

2(1) Every 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." 

            107.            In addition, Article 3(1A) of the Act prescribes the death penalty as the mandatory punishment for an individual who has been convicted of more than one non-capital murder, as follows:  

3(1A) Subject to subsection (5) of section 3B, 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 14^th 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. 

            108.            The Act therefore prescribes death as the mandatory punishment for all capital murders, as well as for individuals who are convicted of more than one non-capital murder.  The Act also defines capital murder as murder committed against certain persons by virtue of their employment, position or status, as well as murder committed in the course or furtherance of certain other offences, including robbery, burglary, housebreaking, and arson in relation to a dwelling house.  Non-capital murder is defined under the Act as any murder not falling within the definition of capital murder.  

            109.            Accordingly, once the jury found each of the victims in the four cases currently before the Commission guilty of capital or multiple non-capital murders, the death penalty was the only available punishment.  The records in several of the cases illustrate and confirm the mandatory nature of the death penalty for the crime of capital or multiple non-capital murders as it has applied to the victims in these matters.  In Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley), for example, the Judicial Committee of the Privy Council stated as follows in maintaining on appeal the victims' death sentences:  

The only remaining question is the application to this case of the provisions of section 3(1A) of the principal Act as amended.  For the reasons given in this judgment their Lordships consider that Daley was guilty of the non-capital murder of Delores Campbell and that Montique was guilty of the non-capital murder of Juliet Martin and Andrew Blake.  But they were each found guilty of three murders in the same trial.  The trial judge would have been bound therefore to sentence them to death for the non-capital murders which they had committed. It would not have been open to him in this case to have sentenced them, in respect of the murders, to life imprisonment. [emphasis added] 

Their Lordships will therefore humbly advise Her Majesty that these appeals should be allowed to the extent only of substituting, in Daley's case, a verdict of non-capital murder for the jury's verdict of finding him guilty of the capital murder of Delores Campbell, and in Montique's case, verdicts of non-capital murder for the jury's verdicts of finding him guilty of the capital murders of Juliet Martin and Andrew Blake; and that they each should be sentenced to death for their non-capital murders in terms of section 3(1A) of the Offences Against the Person Act 1968 as amended.[36] 

continued...