|
...continued 155.
The Commission is not aware of any prescribed criteria applied in
the exercise of the functions or discretion of the Governor-General or
Privy Council of Jamaica under Sections 90 and 91, save for the
requirement in death penalty cases that the Governor-General cause a
written report of the case from the trial judge, and possibly other
information in the Governor-General's discretion, to be forwarded to the
Privy Council. According to the submissions of the parties in the present
cases, an offender does not appear to have a right to apply to the Privy
Council, to be informed of the time when the Privy Council will meet to
discuss the offender's case, to make oral or written submissions to the
Privy Council or to present, receive or challenge evidence considered by
the Privy Council. Rather, the submissions of the Petitioners have indicated
that the exercise of the power of pardon in Jamaica involves an act of
mercy that is not the subject of legal rights and therefore is not subject
to judicial review.[81]
156.
In regard to the latter observation, however, the Commission has
received information that in a September 12, 2000 judgment in the case Neville
Lewis et al. v. The Attorney General of Jamaica, the Judicial
Committee of the Privy Council found that an individual's petition for
mercy under the Jamaican Constitution is open to judicial review.[82]
The Judicial Committee of the Privy Council also found that the procedure
for mercy must be exercised by procedures that are fair and proper, which
require, for example, that a condemned individual be given sufficient
notice of the date on which the Jamaican Privy Council will consider his
or her case, to be afforded an opportunity to make representations in
support of his or her case, and to receive copies of the documents that
will be considered by the Jamaican Privy Council in making its decision.[83] 157.
Even in light of the judgment in the Neville
Lewis et al. case, the Commission considers that the process
for granting mercy in Jamaica is not consistent with, and therefore cannot
serve as a substitute for, the standards prescribed under Articles 4, 5
and 8 of the Convention that are applicable to the imposition of mandatory
death sentences, as outlined in Part IV.B of this report.
As explained previously, these standards include legislative or
judicially-prescribed principles and standards to guide courts in
determining the propriety of death penalties in individual cases, and an
effective right of appeal or judicial review in respect of the sentence
imposed. The Prerogative of
Mercy process in Jamaica, even as informed by the judgment in the Neville
et al. case, does not satisfy these standards, and therefore cannot
serve as an alternative for individualized sentencing in death penalty
prosecutions. 158.
Moreover, to the extent that the victims in the four cases
presently being considered by the Commission have not been afforded the
procedural protections discussed by the Judicial Committee of the Privy
Council in the Neville et al.
case, the Commission finds, as it had prior to the Neville et al. judgment,[84]
that the procedure for granting the Prerogative of Mercy in Jamaica does
not guarantee condemned prisoners an effective or adequate opportunity to
participate in the mercy process, and therefore does not properly ensure
the victims' right under Article 4(6) of the Convention to apply for
amnesty, pardon or commutation of sentence. 159.
In the Commission's view, the right to apply for amnesty, pardon or
commutation of sentence under Article 4(6) of the Convention, when read
together with the State's obligations under Article 1(1) of the
Convention, encompasses certain minimum procedural guarantees for
condemned prisoners, in order for the right to be effectively respected
and enjoyed. These
protections include the right on the part of condemned prisoners to apply
for amnesty, pardon or commutation of sentence, to be informed of when the
competent authority will consider the offender's case, to make
representations, in person or by counsel, to the competent authority, and
to receive a decision from that authority within a reasonable period of
time prior to his or her execution. It
also entails the right not to have capital punishment imposed while such a
petition is pending decision by the competent authority.
In order to provide condemned prisoners with an effective
opportunity to exercise this right, a procedure should be prescribed and
made available by the State through which prisoners may file an
application for amnesty, pardon or commutation of sentence, and submit
representations in support of his or her application. In the absence of
minimal protections and procedures of this nature, Article 4(6) of the
Convention is rendered meaningless, a right without a remedy.
Such an interpretation cannot be sustained in light of the object
and purpose of the Convention. 160.
In this respect, the right to apply for amnesty, pardon or
commutation of sentence under Article 4(6) of the Convention may be
regarded as similar to the right under Article XXVII of the American
Declaration of every person "to seek and receive asylum in foreign
territory, in accordance with the laws
of each country and with international agreements", and the
corresponding Article 22(7) of the Convention, which provides for the
right to "seek and be granted asylum in a foreign territory, in
accordance with the legislation of the state and international
conventions, in the event he is being pursued for political offenses or
related common crimes."[85]
The Commission has interpreted the former provision, in conjunction with
the 1951 Convention Relating to the Status of Refugees and the 1967
Protocol Relating to the Status of Refugees, as giving rise to a right
under international law of a person seeking refuge to a hearing in order
to determine whether that person qualifies for refugee status.[86]
Other internationally-articulated requirements governing the right to seek
asylum reflect similar minimum standards, namely the right of an
individual to apply to appropriate authorities for asylum, to make
representations in support of their application, and to receive a
decision.[87] 161.
Consistent with the interpretation of the right to seek asylum by
the Commission and other international authorities, the Commission finds
that Article 4(6) of the Convention must be interpreted to encompass
certain minimum procedural guarantees for condemned prisoners, in order
for the right to be effectively respected and enjoyed.
The Commission notes in this regard that some common law
jurisdictions retaining the death penalty have prescribed procedures
through which condemned prisoners can engage and participate in the
amnesty, pardon or commutation process.[88]
162.
The information before the Commission indicates that the process in
Jamaica for granting amnesty, pardon or commutation of sentence that was
available to the victims in these cases did not guarantee them any
procedural protections. By
their terms, Sections 90 and 91 of the Jamaican Constitution did not
provide condemned prisoners with any role in the mercy process.
In addition, the Petitioners have claimed that the "invariable
practice" in Jamaica is that prisoners are not informed of the date
on which their cases are to be considered, and that often the first time
they learn of the mercy process is when they are told that the Prerogative
of Mercy is not to be exercised in their case.
Indeed, the Petitioners in the four cases presently under
consideration by the Commission have indicated that each of the victims
has been the subject of at least one death warrant, and that in no case
was the victim aware that he had been denied clemency until the warrant
was read to him.
c.
Conclusion 163.
Based upon the foregoing facts and the interpretive principles
outlined above, the Commission finds that the State, by imposing mandatory
death penalties on the victims in the four cases that are the subject of
this Report, violated the rights of these victims under Articles 4(1),
5(1), 5(2), and 8(1) of the Convention.
The State has also failed to properly guarantee the victims' rights
under Article 4(6) of the Convention. 164.
More particularly, with respect to Article 4(1) of the Convention,
the Commission concludes that the trial judges imposed mandatory penalties
of death upon the victims, in the absence of any guided discretion to
consider their personal characteristics and the particular circumstances
of their offenses to determine whether death was an appropriate
punishment. The victims were
likewise not provided with an opportunity to present representations and
evidence as to whether the death penalty was an appropriate punishment in
the circumstances of their cases. Rather,
the death penalty was imposed upon each of the victims abstractly and
without principled distinction or rationalization as to whether it was an
appropriate form of punishment in the particular circumstances of each
case. Moreover, the propriety
of the sentence imposed was not susceptible to any effective form of
judicial review, and the executions of the victims are now imminent, their
convictions having been upheld on appeal to the highest court in Jamaica. The Commission therefore concludes that the State has
violated the victims’ rights under Article 4(1) of the Convention not to
be arbitrarily deprived of their lives, and therefore that the victims’
death sentences are unlawful. 165.
The Commission further concludes that the State, by sentencing the
victims in these cases to a mandatory penalty of death absent
consideration of their individual circumstances, has failed to respect
their physical, mental and moral integrity contrary to Article 5(1) of the
Convention, and has subjected them to cruel, inhuman, or degrading
punishment or treatment in violation of Article 5(2).
The State sentenced the victims to death solely because they were
convicted of a predetermined category of crime. Accordingly, the process
to which the victims have been subjected would deprive them of their most
fundamental right, their right to life, without considering their personal
circumstances and the particular circumstances of their offenses.
Treating the victims in this manner abrogates the fundamental
respect for humanity that underlies the rights protected under the
Convention, and Article 5(1) and (2) in particular. 166.
The Commission also concludes that the State has violated Article
4(6) with respect to the victims in these cases, by failing to guarantee
them an effective right to apply for amnesty, pardon or commutation of
sentence, to be informed as to when the Jamaican Privy Council may
consider his case, to make representations, in person or by counsel, to
the Jamaican Privy Council, and to receive a decision from the Jamaican
Privy Council within a reasonable time prior to his or her execution. 167.
Finally, the Commission concludes that the State has violated the
rights of the victims under Article 8(1) to a hearing with due guarantees
by a competent, independent and impartial tribunal in the substantiation
and defense of the criminal accusations against them.
The victims were not provided with the opportunity to make
representations and present evidence to the trial judge as to whether
their crimes permitted or warranted the ultimate penalty of death, and
were therefore denied the right to fully answer and defend the criminal
accusations against them. 168.
It follows from the Commission’s findings that, should the State
execute any of the victims pursuant to these sentences, this would
constitute further egregious and irreparable violations of Articles 4 and
5 of the Convention. C.
Articles 5, 7 and 8 - Delays in the Victims' Criminal Proceedings
169.
As indicated in Part III.A.2.b of this Report, the Petitioners in
three of the four cases that are the subject of the present Report, Case
Nos. 11.843 (Kevin Mykoo), 11.846 (Milton Montique) and 11.847 (Dalton
Daley), allege that the State has violated one or more of Articles 7(5),
7(6) and 8(1) of the Convention in relation to the victims in those cases.
In addition, certain of these Petitioners have argued that the
delays in the victims' criminal proceedings should be considered to
violate Article 5 of the Convention and thereby render the victims'
executions unlawful. 170.
Articles 7(5), 7(6) and 8(1) of the Convention provide as follows: 7(5) Any person detained shall be brought promptly before a judge or other
officer authorized by law to exercise judicial power and shall be entitled
to trial within a reasonable time or to be released without prejudice to
the continuation of the proceedings.
His release may be subject to guarantees to assure his appearance
for trial. 7(6) Anyone who is deprived of his liberty shall be entitled to recourse
to a competent court, in order that the court may decide without delay on
the lawfulness of his arrest or detention and order his release if the
arrest or detention is unlawful. In
State Parties whose laws provide that anyone who believes himself to be
threatened with deprivation of his liberty is entitled to recourse to a
competent court in order that it may decide on the lawfulness of such
threat, this remedy may not be restricted or abolished.
The interested party or another person in his behalf is entitled to
seek these remedies. 8(1) Every person has the right to a hearing, with due guarantees and
within a reasonable time, by a competent, independent, and impartial
tribunal, previously established by law, in the substantiation of any
accusation of a criminal nature made against him or for the determination
of his rights and obligations of a civil, labor, fiscal, or any other
nature.
1.
Delay in Being Brought Promptly Before a Judge 171. The
Petitioners in the three cases noted above 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 before they were 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. In
response, the State denies that the victims suffered such delays and
claims that there is no evidence to support the Petitioners' contentions
in this regard. 172. In
reviewing the records in these cases, the Commission notes that, while the
State had denied the Petitioners' specific allegations in this regard, it
has provided no information or evidence as to when the victims were in
fact taken before a judicial officer. In light of the clear obligation on
state parties under Articles 7(5) of the Convention to bring any person
who is detained "promptly" before a judge, the Commission
considers that a plain denial by the State is not sufficient to meet the
Petitioners' specific allegations as to the timing of his pre-trial
process. These allegations
have been supported by questionnaires completed by the victims in these
cases. Moreover, it is
reasonable to expect that the State, as the authority responsible for
detaining the victims, would possess documentation or other information
establishing precisely when the victims were first taken before a judicial
authority, and yet the State has not provided such information to the
Commission. Consequently, the
Commission concludes, based upon the material before it, that the victims
in Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley) were
detained for one month following their arrests before they were brought
before a judicial officer, and that the victim in Case Nº 11.843 (Kevin
Mykoo) was detained by authorities for four months prior to being brought
before a judge. 173. In
interpreting the requirements of Article 7(5) of the Convention, the
Commission has held that it is fundamental that a person be brought before
a judge promptly subsequent to their detention in order to ensure their
well-being and avoid any infringement of their other rights.
In Report Nº 2/97, the case of Jorge
Luis Bernstein and others, the Commission declared that "[t]he
right to the presumption of innocence requires that the duration of
preventive detention not exceed the reasonable period of time cited in
Article 7(5)."[89]
Furthermore, the Commission noted that: In
order to ensure the effective judicial oversight of the detention, the
competent court must be quickly appraised of the persons who are held in
confinement. One of the
purposes of such action is to protect the well-being of the persons
detained and to avoid any violation of their rights.
The [Commission] has determined that, unless such detention is
reported to the court, or the court is so advised after an appreciable
length of time has elapsed from the time the subject has been deprived of
his freedom, the rights of the person in custody are not being protected
and the detention infringes that person's right to due process.[90] In addition, the Commission stated that when the Commission finds that a State has purported to provide a justification for preventive detention, "[the Commission] must proceed to ascertain whether [the State] authorities have exercised the requisite diligence in discharging the respective duties in order to ensure that the duration of such confinement is not unreasonable."[91] In the Commission's view, such justifications might include the presumption that the accused has committed an offense, danger of flight, the risk that new offences may be committed, the need to investigate, the possibility of collusion, the risk of pressure on the witnesses, and the preservation of public order.[92] 174. Other
international human rights tribunals have endeavored to define the
"prompt" appearance of a detainee before a judge more precisely.
The United Nations Human Rights Committee in the case of Peter Grant v. Jamaica,[93]
found that a one week period from the time of arrest to the date of being
brought before a judge constitutes a violation of Article 9(3) of the
ICCPR[94]
[equivalent to Article 7(5) of the Convention]. Additionally, in the decision of the Committee in the case of
Paul Kelly v. Jamaica[95],
the individual opinion submitted by Mr. Bertil Wennergren indicated
that the word "promptly" does not allow for a delay in excess of
two or three days. 175. Additionally, the European Court of Human Rights has emphasized the importance of "promptness" in the context of Article 5(3) of the European Convention as follows:[96] [I]t
enshrines a fundamental human right, namely the protection of the
individual against arbitrary interferences by the State with his right to
liberty (citation omitted). Judicial
control of interferences by the executive with the individual's right to
liberty is an essential feature of the guarantee embodied in Article 5(3)
[of the European Convention on Human Rights], which is intended to
minimize the risk of arbitrariness. Judicial
control is implied by the rule of law, "one of the fundamental
principles of a democratic society"….[97]
Furthermore,
in the case of Brogan and Others,
the European Court of Human Rights found that a period of detention of
four days failed to comply with the requirement of a "prompt"
appearance before a judicial authority.[98]
Similarly, in the case of Koster
v. The Netherlands, the European Court found a delay of five days to
be in excess of the meaning of "promptness" in bringing a
detainee before a judicial authority, therefore in violation of Article
5(3) of the European Convention.[99] 176. The Commission likewise considers that it is essential for a detainee to be brought before a judicial authority in order to review the lawfulness of their detention, not only in order to comply with the requirements under Article 7(5), but also to ensure the protection of the prisoner's other guaranteed rights while in detention and to minimize the risk of arbitrariness.[100] 177. Clearly,
the delays in bringing the victims before a judge in the three cases
referenced above are far in excess of the delays which were found to
constitute violations before the United Nations Human Rights Committee and
the European Court on Human Rights. The provisions of the ICCPR[101]
and European Convention[102]
under consideration by those tribunals are virtually identical to Article
7(5) of the American Convention, and the Commission sees no reason why the
Convention should be subject to any lesser standard regarding the right of
a detained person to be brought promptly before a judge.
Moreover, the State has offered no adequate explanation or
justification for the delays in these cases. 178. In
light of the above principles, the Commission therefore finds the State
responsible for violations of Article 7(5) of the Convention in respect of
the victims in Case Nos. 11.843 (Kevin Mykoo), 11.846 (Milton Montique) or
11.847 (Dalton Daley), with regard to the delay in bringing them before a
judge following their arrests. Further, given that the victims were, as a consequence of
their detention, deprived of recourse without delay to a competent court
to determine the lawfulness of their detention, and in the absence of any
information from the State as to the availability of such recourse, the
Commission finds the State responsible for violations of Article 7(6) of
the Convention in respect of the victims in these same cases.
2.
Trial within a Reasonable Time 179. In
relation to a trial within a reasonable time and the length of detention,
the Petitioners in two of the cases within this Report, Case Nos. 11.846
(Milton Montique) and 11.847 (Dalton Daley) allege that the State failed
to try the victims within a reasonable time, contrary to Article 7(5) and
8(1) of the Convention. In
this regard, the Petitioners refer specifically to the pre-trial delays
outlined in Table 4, which is reproduced below, and which are confirmed by
the victims' affidavits: Table 4
180. The
State responded to the allegations relating to the delay in trying the
victims in these cases by recognizing that the delays had been
"longer than desirable". It
suggested, however, that the delays were justified due to the fact that
preliminary inquiries had been held in each case, and owing to the
complexities of the issues in the cases. 181. In
addressing the issue of a “reasonable time” under Articles 7(5) and
8(1) of the Convention, the Inter-American Court has confirmed that the
purpose of the reasonable time requirement is to prevent accused persons
from remaining in that situation for a protracted period and to ensure
that a charge is promptly disposed of.[103]
The Inter-American Court has also considered that the point
from which a reasonable time is to be calculated is the first act of the
criminal proceedings, such as the arrest of the defendant, and that the
proceeding is at an end when a final and firm judgment is delivered and
the jurisdiction thereby ceases. According
to the Inter-American Court, the calculation of a reasonable time must,
particularly in criminal matters, encompass the entire proceeding,
including any appeals that may be filed.[104]
182. In
determining the reasonableness of the time in which a proceeding must take
place, the Inter-American Court has shared the view of the European Court
of Human Rights that three points must be taken into account: (a) the
complexity of the case; (b) the procedural activity of the interested
party; and (c) the conduct of the judicial authorities.[105]
This Commission has likewise suggested that the reasonableness of a
pre-trial delay should not be viewed exclusively from a theoretical point
of view, but must be evaluated on a case by case basis.[106] 183.
In addition to its case by case analysis of the reasonableness of
the pre-trial delay, the Inter-American Commission has established that
the burden of proof is on the State to present evidence justifying any
prolongation of a delay in trying a defendant.
In assessing what is a reasonable time period, the Commission, in
cases of prima facie
unacceptable duration, has placed the burden of proof on the state to
adduce specific reasons for the delay.
In such cases, the Commission will subject these reasons to the
Commission’s “closest scrutiny.”[107] 184.
In both of the above cases, the victims have been subjected to a
pre-trial delay of more than 2 years.
In light of the past jurisprudence of this Commission and other
international authorities, the Commission is of the view that the delays
in these cases are prima facie unreasonable and call for justification by
the State.[108]
185.
In addition, the State has failed to provide any proper
justification for the delays in bringing these victims to trial.
While the State noted in these cases that part of the delay was
attributable to a preliminary inquiry, the Commission considers that
preliminary inquiries cannot in and of themselves constitute justification
for a prolonged delay. Such inquiries, like the other elements of the State’s
criminal procedural machinery, must as a whole be regulated so as to
ensure that individuals are tried within a reasonable time.[109]
186.
In addition, upon having reviewed the records in these cases, the
Commission is not satisfied, based upon the materials available, that the
delay is adequately explained based upon the nature of the prosecutions.
As the Petitioners point out, the victims' convictions appear to
have been based principally upon the evidence of three witnesses who were
present at or near the scene of the crime and were interviewed by and
available to the police apparently from the time of the incident.
The State has failed to point to any particular aspect of the case
that would explain why over two and a half years was required to bring the
victims to trial based upon this evidence. 187.
After considering the information before the Commission in these
cases, in light of the factors laid out by the Inter-American Court in
analyzing whether there has been a breach of the right to a trial within a
reasonable time, the Commission concludes that the delays in trying the
victims was unreasonable contrary to Articles 7(5) and 8(1) of the
Convention. According to the
information before the Commission, the victims' prosecutions do not appear
to have been particularly complex, and the State has failed to provide the
Commission with any information suggesting that the case was sufficiently
complex so as to warrant a 2 year and 7 month delay in each of the
victim's pre-trial proceedings. Similarly,
there is no information before the Commission concerning the procedural
activity of the victim or the conduct of the judicial authorities that
explains or justifies such a delay. 188.
Therefore, the Commission finds that the State has violated the
right of the victims in Case Nos. 11.846 (Milton Montique) and 11.847
(Dalton Daley) to a trial within a reasonable time, contrary to Articles
7(5) and 8(1) of the Convention. 189.
Given its conclusions in Part IV.B.4 of this Report that the death
sentences imposed upon the victims contravene Articles 4, 5, and 8 of the
Convention and are therefore unlawful, the Commission does not consider it
necessary to determine whether the length of the delays in trying the
victims or their prolonged period of post-conviction detention, as
outlined above, constitute cruel, unusual or degrading punishment or
treatment contrary to Article 5(2) of the Convention and therefore may
also render the victims' executions unlawful. D.
Articles 4 and 5 – Treatment in Detention/Conditions of Detention
190.
The Petitioners in the four cases under consideration by the
Commission allege that the treatment received by certain of the victims
while in detention and the conditions in which the victims have been
detained by the State constitute a violation of their rights under Article
5(1) of the Convention to have their physical, mental and moral integrity
respected, as well as their right not to be subjected to cruel, unusual or
degrading punishment or treatment under Article 5(2) of the Convention.
The Petitioners in Case Nº 11.826 (Leroy Lamey) have also argued
that the reading of two warrants of execution to Mr. Lamey constituted
further violations of his rights under Article 5(1) and 5(2) of the
Convention. In addition, the
Petitioners in each of the four cases contend that the violations of the
victim's rights under Article 5 of the Convention render his execution
unlawful under Article 4 of the Convention. 191.
Articles 5(1) and 5(2) of the Convention provide as follows: 5(1) Every person has the rights to have his physical, mental, and moral
integrity respected. 5(2) No one shall be subjected to torture or to cruel, inhuman, or
degrading punishment or treatment. All
persons deprived of their liberty shall be treated with respect for the
inherent dignity of the human person. 192.
As indicated in Part III.A.2.c of this Report, the Petitioners in
the four cases before the Commission provide similar particulars regarding
the prison conditions of the victims in those cases during their time in
detention on death row in Jamaica. The
Petitioners cumulatively claim that the victim in each case has been held
in solitary confinement in cells approximately 8 feet by 5 feet in size.
They claim that the cells have insufficient light and ventilation
and no mattress or other proper bedding, and that some of the cells are
infested with insects. They
also claim that the conditions in the prison are unhygienic.
They claim that there is no integral sanitation in the cells and
therefore that the victims must use buckets for toilets.
The Petitioners claim further that the victims are confined to
their cells for approximately 23 hours per day, and that the food and
water provided to the victims are inadequate.[110]
Similarly the Petitioners claim that no or inadequate medical or
psychiatric care is provided to the victims and that there are no or
inadequate mechanisms to deal with prisoners' complaints at St. Catherine
District Prison. 193.
The Petitioners' allegations in these cases regarding the victims'
conditions of detention appear to be corroborated by general sources of
information supplied by the Petitioners in respect of prison conditions in
Jamaica. These sources
include an April 1993 report prepared by Americas Watch in respect of the
death penalty, prison conditions and prison violence in Jamaica, and a
December 1993 report by Amnesty International proposing an inquiry into
death and ill-treatment of prisoners in St. Catherine's District Prison.
These reports provide information in respect of, inter
alia, a lack of medical facilities and health care, ill-treatment of
prisoners by warders, and the absence of effective complaint mechanisms
concerning conditions and treatment in detention facilities in Jamaica.
In the 1993 Americas Watch Report, for example, the following
observations are made in respect of conditions of detention in Jamaica: Past
reports by Americas Watch have found the prisons squalid:
"overcrowded, filthy and unsanitary cells, insect infestation,
inadequate or no light in cells, insufficient ventilation…".
A Jamaican cabinet task force of 1989 was "shocked at the
appalling conditions." Unfortunately,
there is no substantial improvement to report.
The equivalent of about fifty cents a day is budgeted for food for
each inmate. St. Catherine's
District Prison, which houses 1300 inmates in a space built for 800, has
had prison riots between 1990 and 1992 arising out of conditions there.
The sanitary conditions, due to inadequate plumbing and garbage
disposal, are dreadful. The
conditions at the General Penitentiary are substantially similar.
Recent studies have reiterated the findings of earlier studies that
the situation has not improved.[111] While
the reports are somewhat dated, the Commission notes that the State has
not provided the Commission with any information or evidence to suggest
that detention conditions have improved since the preparation of these
studies. 194.
The Petitioners in Case Nº 11.843 (Kevin Mykoo) have further
alleged that Mr. Mykoo was subjected to violence at the hands of the
police following his arrest. In
particular, they allege that following his arrest, Mr. Mykoo was detained
for questioning, during which time he was subjected to various forms of
abuse, including attempts to strangle him in a car window, threatening to
cut of his private parts with a knife, beating him with guns, and
subjecting him to electric shocks. 195.
In addition, the Petitioners in Case Nº 11.823 (Leroy Lamey) claim
that the State read two warrants of execution to Mr. Lamey, one in January
1995 for his execution on January 26, 1995, and another in May 1997 for
his execution on June 10, 1997. The
Petitioners contend that as a result, Mr. Lamey was subjected to intense
mental anguish and prolonged psychological suffering. 196.
In response to these allegations, the State has provided various
submissions. In respect of the general evidence concerning prison
conditions in Jamaica, the State provided no observations, and
consequently has not submitted any information as to whether prison
conditions may have improved subsequent to the preparation of the numerous
reports by Americas Watch and other groups.
With respect to the submissions in Case Nº 11.843 (Kevin Mykoo)
respecting the victim's ill-treatment following his arrest, the State
suggests that the alleged victim should have raised these claims during his
preliminary inquiry, his trial or his appeal, and that his failure to do
so brings into question the accuracy of these allegations.
The Petitioners reject this argument, however, on the grounds that
the victims' treatment while in detention could only be properly
challenged in the domestic by way of Constitutional Motion, which the
victim could not afford to do. 197.
The State also rejects the suggestions in Case Nos. 11.843 (Kevin
Mykoo), 11.846 (Milton Montique) and 11.847 (Dalton Daley) that the length
or conditions of the victims' detentions amount to cruel and inhuman
treatment punishment so as to render their executions unlawful contrary to
Article 4 of the Convention, and relies upon the decision of the Judicial
Committee of the Privy Council in the case Pratt
and Morgan v. Attorney General of Jamaica in support of its position.
Specifically in respect of Case Nº 11.847 (Dalton Daley), the
State claims that while the conditions are "less than ideal",
there is now a doctor on staff at the prison and that prisoners are taken
to the Spanish Town Hospital when the need arises, and suggests that the
Commission should consider Jamaica's status as a developing country in
addressing the Petitioners' allegations respecting prison conditions. 198.
Finally, with regard to the Petitioners' contentions in Case Nº
11.823 (Leroy Lamey) respecting the reading to the victim of two execution
warrants, the State does not dispute that the warrants were read, but
suggests that this was necessary in order to implement domestic law, in
light of the failure of the victim to notify the Jamaican Privy Council of
his proceedings before international human rights bodies.
The Petitioners respond conversely that proper notice had been
given to the appropriate State authorities on both occasions prior to the
reading of the warrants of the victims' intention to petition the Judicial
Committee of the Privy Council for Special Leave to Appeal as a Poor
Person, and that in any even it was the fact of, and not the reason for,
the victims' treatment that lies at the heart of his complaint. 199.
With respect to the allegations raised by the Petitioners regarding
the victims' general conditions of detention, the Commission considers
that the Petitioners have presented compelling documentary and independent
evidence, including affidavits from two of the victims, in support of
their allegations, and that the State has failed to provide specific or
sufficient responses so as to effectively answer the Petitioners'
allegations in this regard. Rather,
apart from indicating that St. Catherine District Prison has a doctor on
staff and that inmates can be taken to the Spanish Town Hospital when the
need arises, the State has failed to provide any specific information or
evidence rebutting that provided by the Petitioners' concerning conditions
of detention in the prison. 200.
In such circumstances, in the Commission's view the State cannot be
considered to have refuted the Petitioners' cases.
In such instances, the Commission must dispose of the complaints
based upon the evidence and submissions before it.
In the cases currently before the Commission, this consists
substantially of information provided by the Petitioners. 201.
The Commission must next determine whether the conditions of
detention, as disclosed by the Petitioners' information, constitute
violations of Article 5(1) and 5(2) of the Convention.
As outlined above, the Petitioners in the four cases before the
Commission have made similar allegations in respect of their conditions of
detention. They allege, for
example, that the victims have suffered overcrowding, and that sanitation
is inadequate. They also
claim that the lighting and ventilation in their cells are poor, and that
they have been locked in their cells for 23 or more hours per day.
In addition, the Petitioners claim that the victims have been given
inadequate access to medical treatment, and that there are inadequate
mechanisms available to address prisoners' complaints. 202.
In the Commission’s view, these conditions of detention, when
considered in light of the periods of time for which these victims have
now been held in detention, fail to satisfy the standard of humane
treatment prescribed under Article 5(1) and 5(2) of the Convention.
In this regard, the Inter-American Court considered similar
conditions of detention in the Suarez-Rosero
Case.[112]
In that case, the victim alleged, inter
alia, that he was held incommunicado for over one month in a damp and
poorly ventilated cell measuring five meters by three, together with
sixteen other persons. In
finding that the victim had been subjected to cruel, inhuman or degrading
treatment or punishment contrary to Article 5(2) of the Convention, the
Court stated as follows: The
mere fact that the victim was for 36 days deprived of any communication
with the outside world, in particular with his family, allows the Court to
conclude that Mr. Suarez-Rosero was subjected to cruel, inhuman and
degrading treatment, all the more so since it has been proven that his incommunicado
detention was arbitrary and carried out in violation of Ecuador’s
domestic laws. The victim
told the Court of his suffering at being unable to seek legal counsel or
communicate with his family. He
also testified that during his isolation he was held in a damp underground
cell measuring approximately 15 square meters with 16 other prisoners,
without the necessary hygiene facilities, and that he was obliged to sleep
on newspapers; he also described the beatings and threats he received
during his detention. For all
those reasons, the treatment to which Mr. Suarez-Rosero was subjected may
be described as cruel, inhuman and degrading.[113] 203.
While the victims in the cases under consideration do not claim to
have been held incommunicado, they are held in solitary confinement on death row,
and the prison conditions under which they have been detained are similar
to those to which the victim in the Suarez-Rosero
case was subjected. The
victims have been held in confined conditions with inadequate hygiene,
medical treatment, ventilation and natural light, and are allowed out of
their cells infrequently. These
observations, together with the length of time for which the victims have
now been incarcerated, suggest that the treatment of the victims has
failed to meet the minimum standards under Articles 5(1) and 5(2) of the
Convention. While the State has raised its status as a developing country
as a explanation in Case Nº 11.847 (Dalton Daley), the Commission must
emphasize that the standards of treatment under Article 5 of the
Convention constitute fundamental and universal standards that apply
irrespective of the nature of the conduct for which the person in question
has been imprisoned[114]
and regardless of the
level of development of a particular State Party to the Convention.[115] 204.
A comparison of the prison conditions of the victims in the cases
under consideration with international standards for the treatment of
prisoners also suggests that their treatment has failed to respect minimum
requirements of humane treatment. In
particular, Rules 10, 11, 12, 15, 21, 24 and 26 of the United Nations
Standard Minimum Rules for the Treatment of Prisoners[116] provide for the following
basic standards in respect of accommodation, hygiene, exercise, and
medical treatment for prisoners: 10. All accommodation provided for the use of prisoners and in particular
all sleeping arrangements shall meet all requirements of health, due
regard being paid to climactic conditions and particularly to cubic
content of air, minimum floor space, lighting, heating and ventilation.
11. In all places where prisoners are required to live or work, (a) the windows shall be large enough to enable the prisoners to read or work by natural light, and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation;
(b) Artificial light shall be provided sufficient for the prisoners to
read or work without injury to eyesight. 12. The sanitary installations shall be adequate to enable every prisoner
to comply with the needs of nature when necessary and in a clean and
decent manner. 15. Prisoners shall be required to keep their persons clean, and to this
end they shall be provided with water and with such toilet articles as are
necessary for health and cleanliness. 21.(1) Every prisoner who is not employed in outdoor work shall have at
least one hour of suitable exercise in the open air daily if the weather
permits. (2) Young prisoners, and others of suitable age and physique, shall
receive physical and recreational training during the period of exercise.
To this end space, installations and equipment should be provided. 24. The medical officer shall see and examine every prisoner as soon as
possible after his admission and thereafter as necessary, with a view
particularly to the discovery of physical and mental illness and the
taking of all necessary measures; the segregation of prisoners suspected
of infectious or contagious conditions; the noting of physical or mental
defects which might hamper rehabilitation, and the determination of the
physical capacity of every prisoner for work. 26.(1) The medical officer shall have the care of the physical and mental
health of the prisoners and should see daily all sick prisoners, all who
complain of illness, and any prisoner to whom his attention is specially
directed. (2) The medical officer shall report to the director whenever he
considers that a prisoner’s physical or mental health has been or will
be injuriously affected by continued imprisonment or by any condition of
imprisonment. 205. It is evident based upon the victims' allegations that the State has failed to meet these minimum standards of proper treatment of prisoners, in such areas as hygiene, exercise, and medical care. Moreover, in the situation of the victim in Case Nº 11.823 (Leroy Lamey), the Commission considers that these conditions have been exacerbated by the reading to the victim of two warrants of execution pursuant to what the Commission has found to constitute an unlawful death sentence. Similarly, in Case Nº 11.843 (Kevin Mykoo), the Commission considers that victims' conditions of detention were aggravated by the mistreatment he is alleged to have received following his arrest, which the State does not appear to have investigated and to which it has not otherwise provided a substantive response.
[ Table
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] [81]
See
Reckley v. Minister of Public Safety (Nº 2) [1996] 2 W.L.R. 281 at
289-291 (finding that the exercise of the Prerogative of Mercy by the
Minister of Public Safety in The Bahamas involved an act of mercy that
was not the subject of legal rights and was therefore not judicable.);
de Freitas v. Benny [1976] 2 A.C. 239.. [82]
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 2000 (12 September 2000)(J.C.P.C.), at p.
23. [83]
Id., at 23-24. [84]
See e.g. Report Nº 38/00,
(Baptiste v. Jamaica), Annual
Report of the IACHR 1999, p. 721, paras. 120-125; Report Nº
41/00 (McKenzie et al. v. Jamaica), Annual
Report of the IACHR 1999, p. 918, paras. 227-232.
[85]
See similarly Universal
Declaration on Human Rights, Article 14 (providing for the right of
every individual to "seek and to enjoy in other countries asylum
from persecution."). [86]
I/A. Comm. H.R.,
Haitian Center for Human Rights and others (United States), Case Nº
10.675 (13 Match 1997), Annual Report 1996, para. 155. [87]
See e.g. Office of the
United Nations High Commissioner for Refugees, Handbook on Procedures
and Criteria for Determining Refugee Status under the 1951 Convention
and the 1967 Protocol relating to the Status of Refugees, paras.
189-219 (prescribing basic requirements for the procedures for
determining refugee status, including the right
of an applicant to be given the necessary facilities for
submitting his case to the authorities concerned, and that the
applicant be permitted to remain in the country pending a decision on
his initial request for refugee status); Council of Europe, Resolution
on minimum guarantees for asylum procedures, Brussels, 21 June 1995,
Articles 10, 12, 14, 15, 23 (prescribing
common procedural guarantees to be provided by Member States of the
European Union in processing asylum application, including the right
of an asylum-seeker, at the border or otherwise, to have an
opportunity to lodge his asylum application as early as possible, to
remain in the territory of the state in which his application has been
lodged or is being examined as long as the application has not been
decided upon, to be given the opportunity of a personal interview with
an official qualified under national law before a final decision is
taken on the asylum application, and to have the decision on the
asylum application communicated to the asylum-seeker in writing.). [88]
In the State of Ohio, United States, for example, clemency review has
been delegated in large part to the Ohio Adult Parole Authority
(OAPA). In the case of an inmate under sentence of death, the OAPA
must conduct a clemency hearing within 45 days of the scheduled date
of execution. Prior to the hearing, the inmate may request an
interview with one or more parole board members. The OAPA holds a
hearing, completes its clemency review, and makes a recommendation to
the Governor. If additional information later becomes available, the
OAPA may in its discretion hold another hearing or alter its
recommendation. See Ohio
Constitution, Art. III, s. 2, Ohio Revised Code Ann., s. 2967.07
(1993). See also Ohio Adult
Parole Authority v. Woodward, Court File Nº 96-1769 (25 March
1998)(U.S.S.C.) (finding that Ohio's clemency procedures do not
violate the U.S. Constitution's Due Process Clause). [89]
I/A Comm. H.R., Jorge Luis Bernstein and others, Annual
Report 1997, p. 244, para. 12.
The Commission notes that the Constitution of Jamaica has a
clause which declares that any person who is arrested or detained
"…shall be brought without delay before a court…."
Constitution of Jamaica, 1962, Section 15(2) "Any person who is
arrested or detained shall be informed
as soon as reasonably practicable, in a language which he
understands, of the reasons for
his arrest or detention." [emphasis added]
Article 15(3) "Any person who is arrested or detained (a) for the purpose of
bringing him before a court in execution of the order of a court; or
(b) upon reasonable suspicion of his having committed or being about
to commit a criminal offence, and who is not released, shall
be brought without delay before a court; and if any person
arrested or detained upon reasonable suspicion of his having committed
or being about to commit a criminal offence is not tried
within a reasonable time, then, without prejudice to any further
proceedings which may be brought against him, he shall be released
either unconditionally or upon reasonable conditions, including in
particular such conditions as are reasonably necessary to ensure that
he appears at a later date for trial or for proceedings preliminary to
trial." [emphasis added] [90]Id.,
citing I/A Comm.
H.R., Second Report on the Situation of Human Rights in Suriname.
OEA/Ser.L/V/II.66, doc. 21/Rev.1, 1985, pages 23 and 24. [91]
Id. at para. 24. [92]
Id., at pp. 247-248. [93]
Peter Grant v. Jamaica,
Communication Nº 597/1994, U.N. Doc. Nº
CCPR/C/56/D/597/1994 (1996). [94]
International Covenant on Civil and Political Rights, 19 Dec. 1966,
999 U.N.T.S. 171, Article 9(3) "Anyone arrested or detained on a
criminal charge shall be brought promptly before a judge or other
officer authorized by law to exercise judicial power and shall be
entitled to trial within a reasonable time or to release.
It shall not be the general rule that persons awaiting trial
shall be detained in custody, but release may be subject to guarantees
to appear for trial, at any other stage of the judicial proceedings,
and, should occasion arise, for execution of the judgment." [95]
U.N.H.R.C., Paul Kelly v.
Jamaica, Communication Nº 253/1987. [96]
Convention for the Protection of Human Rights and Fundamental
Freedoms, E.T.S. Nº 5, (4 November 1950), Article 5(3) (providing
that "[e]veryone arrested or detained in accordance with the
provisions of paragraph 1.c of this article shall be brought promptly
before a judge or other officer authorised by law to exercise judicial
power and shall be entitled to trial within a reasonable time or to
release pending trial. Release may be conditioned by guarantees to
appear for trial"). [97]
Eur. Court H.R., Case of Brogan
and Others, Ser. A, vol. 145, 29 Nov. 1988, at para. 58. [98]
Id. at para. 62. [99]
Eur. Court H.R., Case of Koster
v. The Netherlands, Ser. A, Vol. 221, 28 Nov. 1991, at paras.
24-25. [100]
Jorge Luis Bronstein and others,
supra. [101]
International Covenant on Civil and Political Rights, Art. 9(3), supra. [102]
European Convention for the Protection of Human Rights and Fundamental
Freedoms, Art. 5(3), supra. [103]
I/A Court H.R., Suarez Rosero
Case, Judgment, 12 November 1997, Annual
Report 1997, p. 283, para.
70. [104]
Id.,
para. 71. [105]
Id.,
para. 72. See
also I/A Court H.R., Genie
Lacayo Case, Judgment of January 29, 1997, Annual
Report 1997, para. 77. See
also Report 2/97, Cases Nos. 11.205, 11.236, et al. (Argentina)
March 11, 1997, Annual Report 1997 at 241, 245-6. This reasoning was set forth in the leading
European Court case on this issue, the Stogmuller
v. Austria judgment of 10 November 1969, Series A Nº 9, p. 40. [106]
See Report 2/97,
Cases Nos. 11.205, 11.236, et al. (Argentina), supra. [107]
Report Nº 12/96, Case Nº 11.245 (Argentina), March 1, 1996, Annual
Report 1995, at 33, See
similarly U.N.H.R.C., Desmond
Williams v. Jamaica, Communication Nº 561/1993, U.N. Doc.
CCPR/C/59/D/561/1993 (1997) (holding that by “rejecting the
author’s allegation in general terms, the State party has failed to
discharge the burden of proof that the delays between arrest and trial
in the instant case was compatible with article 14, paragraph 3(c); it
would have been incumbent upon the State party to demonstrate that the
particular circumstances of the case justified prolonged pre-trial
detention.”). [108]
See e.g. Suarez
Romero Case, supra , p.
300, para. 73 (finding that a period of delay 4 years and 2 months
between the victim’s arrest and disposition of his final appeal to
“far exceed” the reasonable time contemplated in the Convention
and therefore to violate Articles 7(5) and 8(1) of the Convention.);
I/A Comm. H.R., Report on Panama, Annual Report 1991, at p. 485 (finding an average pre-trial
delay of 2 years and 4 months to be unreasonable contrary to Article
7(5) of the Convention); Desmond
Williams v. Jamaica, supra,
para. 9.4 (finding a delay of two years between arrest and trial to be
prolonged and unreasonable); U.N.H.R.C., Patrick
Taylor v. Jamaica, Communication Nº 707/1996, U.N. Doc.
CCPR/C/60/D/707/1996 (1997) (finding a delay of 28 months between
arrest and trial to be a violation of the Petitioner’s right to be
tried without undue delay). [109]
See similarly U.N.H.R.C., Andre
Fillashe v. Bolivia, Communication Nº 336/1988, U.N. Doc. CCPR/C/43/D/336/1988
(1991), para. 6.5
(finding that the fact that the investigation into a criminal case in
Bolivia was carried out by way of written proceedings did not justify
the delay in bringing a defendant to trial). [110]
The affidavit filed by the Petitioners in Case Nº 11.846 (Milton
Montique) is illustrative of the allegations regarding conditions of
detention on death row at St. Catherine District Prison. In his
affidavit, the victim states in part as follows: 17.
Since my conviction on 7 November 1994, I have been detained on
death row at St Catherine District prison in a block called
"Gibraltar" which consist of twenty-six cells, each
containing one inmate. The size of my cell is eight foot by five foot,
and I am constantly detained in solitary confinement. The lighting in
my cell is inadequate and in the mornings when I go out of my cell
into the sunlight, my eyes are extremely sensitive and take a long
time to adjust to the brightness. 18.
There is a piece of concrete the authorities call a bunk, but
to me its just plain concrete which is shaped like a tomb. I am given
a blanket which smells oily. I am also provided with a piece of sponge
to use as a mattress. For the first two months after my conviction, I
wasn't provided with any form of mattress and therefore had to sleep
on the concrete. 19.
There are no sanitary facilities within my cell and I am
provided with a bucket for use as a toilet. My cell is not hygienic
and is full of roaches and other crawling insects. In front of my cell
there is an open gutter which is always full of foul smelling liquid
which is extremely unhygienic and unsanitary. 20.
Although I receive fresh water each day, on occasions the water
is not up to standard and sometimes when I drink it it makes me ill
and I suffer from diarrhea. The food that is provided is neither up
to standard and when we are provided with meat, it is normally
spoiled. The main meal each day consists of rice and flour, and
occasionally meat. The meat that is provided is often chicken back,
which means that we don't really receive any meat, just the bones from
the back of the chicken. Generally, the food is insufficient and
deplorable. For example, on most days, whatever food is provided
cannot be eaten as it is covered in too much salt. 21.
I am allowed out of my cell each day for approximately
forty-five minutes. In this period I am expected to slop-out, bathe,
wash my clothes and exercise. 22.
For the last six months I have noticed that a doctor has been
coming to the prison once or twice a month. Nevertheless, when I have
requested to see a doctor, I often have to wait, and on some
occasions, I have been unable to see the doctor at all. [111]
Americas Watch,
Human Rights in Jamaica: Death Penalty, Prison Conditions and Police
Violence, News from Americas Watch, April 1993, Vol. 5, Nº 3, p. 3 [112]
I/A Court H.R.,
Suarez Rosero Case, Judgment, 12 November 1997, Annual Report 1997, at p. 283. 113]
Id.,
at pp. 302-3, para. 98. [114]
See
e.g. Eur. Court
H.R., Ahmed v. Austria,
Judgment of 17 December 1996, Reports
of Judgments and Decisions 1996-VI, p. 220, para. 38. [115]
See
similarly
U.N.H.R.C., Mukong v. Cameroon,
Communication Nº 458/1991, U.N. Doc. Nº
CCPR/C/51/D/458/1991 (1994), para. 9.3
(observing that certain minimum standards governing conditions of
detention for prisoners, as prescribed by the International Covenant
on Civil and Political Rights and reflected in the U.N. Standard
Minimum Rules for the Treatment of Prisoners, must be observed
regardless of a state party's level of development). [116]
United Nations
Standard Minimum Rules for the Treatment of Prisoners, adopted August
30, 1955 by the First United Nations Congress on the Prevention of
Crime and the Treatment of Offenders, U.N. Doc. A/CONF/611, annex I,
E.S.C. res. 663C, 24 U.N. ESCOR Supp. (Nº 1) at 11, U.N. Doc. E/3048
(1957), amended E.S.C. Res. 2076, 62 U.N. ESCOR Supp. (Nº 1) at 35,
U.N. Doc E/5988 (1977). |