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...continued
206.
Consequently, in respect of all four cases, Case Nos. 11.823 (Leroy
Lamey), 11.843 (Kevin Mykoo), 11.846 (Milton Montique) and 11.847 (Dalton
Daley), the Commission finds that the conditions of detention to which the
victims have been subjected fail to respect the physical, mental and moral
integrity of the victims as required under Article 5(1) of the Convention,
and, in all of the circumstances, constitute cruel, inhuman or degrading
treatment or punishment contrary to Article 5(2) of the Convention. The
Commission therefore finds the State responsible for violations of these
provisions of the Convention in respect of these victims, in conjunction
with the State‘s obligations under Article 1(1) of the Convention.
207.
Given its conclusions in Part IV.B.4 of this Report that the
victims' death sentences contravene Articles 4, 5 and 8 of the Convention,
so as to render any subsequent execution unlawful, the Commission does not
consider it necessary to determine whether the length of time for which
the victims in the cases before it were held in detention, or the victims'
conditions of detention, may also render their executions unlawful.
E.
Articles 4 and 8 - Right to a Fair Trial
208.
The Petitioners in all of the cases that are the subject of this
Report allege violations of Article 8(2) in relation to the law in Jamaica
governing communications between death row inmates and their attorneys.
Further, the Petitioners in Case Nos. 11.843 (Kevin Mykoo), 11.846
(Milton Montique) and 11.847 (Dalton Daley) allege that the victims were
held for prolonged periods prior to being permitted to see attorneys, in
violation of Articles 8(2)(b), (d) and (e) of the Convention.
Finally, the Petitioners in Case Nos. 11.846 (Milton Montique) and
11.847 (Dalton Daley) allege violations of Article 8(1) and 8(2)(d) of the
Convention by reason of the failure of the victims' attorneys to
investigate and present evidence in support of their claims of alibi.
209.
The State provided observations on certain of the Petitioners'
contentions. In respect of
the Petitioners' allegations in Case Nos. 11.843 (Kevin Mykoo) and 11.846
(Milton Montique) that the victims were held for, respectively, three
months and two months prior to being permitted to see an attorney, the
State effectively denies these claims, arguing that there is no evidence
to support them and, in the case of Mr. Mykoo,
that his failure to raise these claims in the context of his
domestic proceedings brings into question the accuracy of these
assertions. With regard to
the purported failure on the part of the trial attorneys in Case Nos.
11.846 (Milton Montique) and 11.847 (Dalton Daley) to properly investigate
and present alibi defenses, the State argues that, while it is obliged to
provide counsel to criminal defendants, it cannot be held accountable for
the manner in which such counsel performs his or her duties.
The State also points out that it was open to the victims to
complain to the General Legal Council if they believed their
representation to be inadequate.
210. Article 8(1) and 8(2) of the Convention provide as follows:
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.
8(2) Every person accused of a criminal offense has the right to be
presumed innocent so long as his guilt has not been proven according to
law. During the proceedings,
every person is entitled, with full equality, to the following minimum
guarantees:
(a) the right of the accused to be assisted without charge by a
translator or interpreter, if he does not understand or does not speak the
language of the tribunal or court;
(b) prior notification in detail to the accused of the charges against
him;
(c) adequate time and means for the preparation of his defense;
(d) the right of the accused to defend himself personally or to be
assisted by legal counsel of his own choosing, and to communicate freely
and privately with his counsel;
(e) the inalienable right to be assisted by counsel provided by the
state, paid or not as the domestic law provides, if the accused does not
defend himself personally or engage his own counsel within the time period
established by law;
(f) the right of the defense to examine witnesses present in the court
and to obtain the appearance, as witnesses, of experts or other persons
who may throw light on the facts;
(g) the right not to be compelled to be a witness against himself or to
plead guilty; and
(h) the right to appeal
the judgment to a higher court.
211.
After carefully reviewing the victims’ allegations and the
information in the records before it, the Commission first finds that the
claims respecting the Jamaican Prison Rules have not been properly
substantiated. In particular,
while the Petitioners have challenged the validity of Jamaican Prison Rule
296(4) generally under the Convention, they have not referred to or
substantiated a specific occasion in which this provision has been applied
to a particular individual, whether the victims in these cases or
otherwise, so as to contravene his or her rights under the Convention. In this regard, the Commission must point out that its
contentious jurisdiction, like that of the Inter-American Court of Human
Rights, is intended to protect the rights and freedoms of specific
individuals, not to resolve abstract questions.
As the Commission has no evidence before it as to the application of Rule
296(4) of the Jamaican Prison Rules in the circumstances of a particular
case, it finds no violations of the Convention in this regard.
212.
With respect to the claims in Case Nos. 11.843 (Kevin Mykoo),
11.946 (Milton Montique) and 11.847 (Dalton Daley) that the victims were
the subject of prolonged delays prior to being permitted to see attorneys,
the Commission observes that the State has disputed the accuracy of the
Petitioners' contentions in this regard in Case Nº 11.843 (Kevin Mykoo),
and neither party in this case has presented compelling independent or
corroborating documentation or information from which the Commission may
determine whether the victim sought access to an attorney following his
arrest and, if so, when such access was granted.
As a consequence, the Commission considers that it does not have
sufficient information to make a determination as to whether the victim
suffered the violation of Article 8 of the Convention in this regard.
213.
Conversely, in Case 11.846 (Milton Montique) the Commission
notes that the Petitioner's claim was supported by an affidavit sworn by
the victim, in which he confirmed that he did not see his trial attorneys
until two months before his trial.
Further, the State delivered no observations respecting this allegation in
Case Nº 11.847 (Dalton Daley). Accordingly,
in each of these cases, the Commission finds as matters of fact and based
upon the records before it that the victim in Case Nº 11.846 (Milton
Montique) was detained for a period of approximately 28 months, from the
date of his arrest on April 1, 1992 until two months prior to the
commencement of his trial in November 1994, before being permitted to see
his trial attorneys, and that the victim in Case Nº 11.847 (Dalton Daley)
was kept in custody for three months before he was permitted to contact or
see a lawyer.
214.
With respect to the applicable legal principles, Article 8(2)(d) of
the Convention provides that every person accused of a criminal offense has the
right to defend himself personally or to be assisted by legal counsel of
his own choosing. Article
8(2)(e) of the Convention provides every such person the inalienable right
to be assisted by counsel provided by the State, paid or not as the
domestic law provides, if the accused does not defend himself personally
or engage his own counsel within the time limit established by law.
Strict compliance with these and other guarantees of due process
are particularly fundamental in the context of trials involving capital
offenses. The Commission also
considers that these rights apply at all stages of a defendant's criminal
proceedings, including the preliminary process, if one exists, leading to
his committal for trial, and at all stages of the trial itself.
In order for these rights to be effective, a defendant must be provided
with an effective opportunity to retain counsel as soon as reasonably
practicable following their arrest or detention.
The State's obligations in this regard involve not only making
legal aid available, but facilitating reasonable opportunities for the
defendant to contact and consult with their respective counsel.
215.
In the circumstances of Case Nos. 11.846 (Milton Montique) and
11.847 (Dalton Daley), the Commission considers that, while the time within
which a defendant should be given access to an attorney following his or
her arrest may depend upon the circumstances of a particular case, delays
of the length suffered by the victims are well beyond those which may be
considered prima facie
reasonable or permissible, and the State has offered no explanation for
the delays.
As a consequence, the Commission finds that the rights of the victims in
Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley) under Article 8(2)(d) and 8(2)(e) of the Convention have been violated, by
reason of the delay in permitting them access to attorneys following their
arrests and detention by the State.
216.
With respect to the claims by the Petitioners in Case Nos. 11.846
(Milton Montique) and 11.847 (Dalton Daley) relating to the purported
failure of their trial counsel to properly investigate and present the
victims' alibi defenses, after carefully considering these claims on the
records available, the Commission cannot find the State responsible for
violations of the Convention in this regard.
The Commission notes in this connection that the State fulfilled
its burden of providing both of the victims in these cases with legal
assistance in the course of their criminal proceedings.
In the particular case of the provision of State-funded defense
counsel, the Commission considers that it cannot hold the State
responsible for actions of which it has no knowledge.
The Commission shares the views of the European Court in this
regard, which has observed that, as a consequence of the independence of
the legal profession from the State, the conduct of the defense is
essentially a matter between the defendant and his counsel, whether
counsel be appointed under a legal aid scheme or be privately appointed.
As a result, the Commission concludes that the competent national
authorities are required under Article 8(2)(c) of the Convention to
intervene only if a failure by legal aid counsel to provide effective
representation is manifest or sufficiently brought to their attention.
217.
In the two cases under consideration, however, the records do not
suggest that the victims made it known to State officials that they
considered their legal representation to be inadequate, prior to or during
their trials. Moreover, in
the Commission's view, it is not apparent on the information available
that it would have been clear or should have been manifest to the trial
judge that the behavior of the victims' attorneys was incompatible with
the interests of justice.
In the court’s perception, the absence of evidence of an alibi or other
defense on the part of the defendants would not necessarily have been
regarded as a consequence of negligence on the part of the attorneys, but
more probably would have been presumed to be a function of the proper
exercise of defense counsels' professional judgment as to the availability
or merit of such a defense. Based
upon these considerations, therefore, the Commission does not find
violations of the Convention in respect of these allegations.
218.
Given its conclusions in Part IV.B.4 of this Report that the death
sentences imposed on the victims contravene Articles 4, 5 and 8 of the
Convention so as to render their executions unlawful, the Commission does
not consider it necessary to determine whether the violations of Article 8
determined above may also render the carrying out of the victim's death
sentences unlawful contrary to Article 4 of the Convention.
F.
Articles 8, 24 and 25 – Unavailability of Legal Aid for
Constitutional Motions
219.
The Petitioners in the four cases that are the subject of this
Report argue that legal aid is not effectively available for
Constitutional Motions before the courts in Jamaica, and therefore that
the victims have been denied from pursing Constitutional Motions, contrary
to their rights under Articles 24 and 25 of the Convention, which
read as follows:
24 All persons are equal before the law. Consequently, they are entitled, without discrimination, to
equal protection of the law.
25(1) Everyone has the right to simple and prompt recourse, or any other
effective recourse, to a competent court or tribunal for protection
against acts that violate his fundamental rights recognized by the
constitution or laws of the state concerned or by this Convention, even
though such violation may have been committed by persons acting in the
course of their official duties.
(2) The States Parties undertake:
(a) To ensure that any person claiming such remedy shall have his
rights determined by the competent authority provided for by the legal
system of the state;
(b) To develop the possibilities of judicial remedy; and
(c) To ensure that the competent authorities shall enforce such
remedies when granted.
220.
More particularly, as noted in Part III.A.2.e of this Report, the
Petitioners have claimed that Constitutional Motions before the domestic
courts in Jamaica often involve sophisticated and complex questions of law
which require the assistance of counsel.
The Petitioners also claim that the victims are indigent, and the
State does not provide legal aid to pursue Constitutional Motions in
Jamaica. As a consequence,
the Petitioners allege that the State's failure to provide legal aid in
order to present Constitutional Motions constitutes a denial of access to
the court and to effective remedies, in fact as well as in law.
221.
The State delivered responses to these allegations only in Case
Nos. 11.843 (Kevin Mykoo) and 11.846 (Milton Montique).
In the latter case, the State expressed the view, without further
elaboration, that the Convention does not require it to provide legal aid
for Constitutional Motions, and in both cases the State suggested that
legislation had recently been enacted in Jamaica, but apparently not yet
proclaimed into force, which would extend legal aid to assist individuals
in bringing Constitutional Motions.
222.
Based upon the material before it, the Commission is satisfied that
Constitutional Motions dealing with legal issues of the nature raised by
the victims in their proceedings before the Commission, such as the right
to due process and the adequacy of the victims' conditions of detention,
are procedurally and substantively complex and cannot be effectively
raised or presented by a victim in the absence of legal representation.
The Commission also finds that the State does not provide legal aid to
individuals in Jamaica to bring Constitutional Motions, given that the
State's Legal Aid Act has not,
according to the record in these cases, been proclaimed in force.
Further, the Commission finds, in the absence of allegations or
evidence to the contrary, that the victims in the cases at issue are
indigent and are therefore not otherwise able to secure legal
representation for Constitutional Motions.
223.
The Commission considers that in the circumstances of the present
cases, the State's obligations in respect of legal assistance for
Constitutional Motions flow from both Article 8 and Article 25 of the
Convention. In particular,
the determination of rights through a Constitutional Motion in the Supreme
Court of Jamaica must conform with the requirements of a fair hearing in
accordance with Article 8(1) of the Convention.
In the circumstances of the cases before the Commission, the
Supreme Court would be called upon to determine whether the victims'
criminal convictions violated their rights under the Constitution of
Jamaica. In such cases, the application of a requirement of a fair
hearing in the Supreme Court should be consistent with the principles in
Article 8(2) of the Convention. Accordingly, when a
convicted person seeking constitutional review of the irregularities in a
criminal trial lacks the means to retain legal assistance to pursue a
Constitutional Motion and where the interests of justice so require, legal
assistance should be provided by the State.
In the present cases, the effective unavailability of legal aid has
denied the victims the opportunity to challenge the circumstances of their
convictions under the Constitution of Jamaica in a fair hearing, and
therefore has contravened Article 8(1) in respect of those individuals.
224.
Moreover, Article 25 of the Convention provides individuals with
the right to simple and prompt recourse to a competent court or tribunal
for protection against acts that violate his or her fundamental rights
recognized by the constitution or laws of the State concerned or by the
Convention. The Commission
has stated that the right to recourse under Article 25, when read together
with the obligation under Article 1(1) and the provisions of Article 8(1),
“must be understood as the right of every individual to go to a tribunal
when any of his rights have been violated (whether a right protected by
the Convention, the constitution, or the domestic laws of the State
concerned), to obtain a judicial investigation conducted by a competent,
impartial and independent tribunal that will establish whether or not a
violation has taken place and will set, when appropriate, adequate
compensation.”
In addition, the Inter-American Court has held that if legal
services are required either as a matter of law or fact in order for a
right guaranteed by the Convention to be recognized, and a person is
unable to obtain such services because of his indigence, then that person
is exempted from the requirement under the Convention to exhaust domestic
remedies.
While the Court rendered this finding in the context of the admissibility
provisions of the Convention, the Commission considers that the Court's
comments are also illuminating in the context of Article 25 of the
Convention in the circumstances of the present cases.
225.
By failing to make legal aid available to the victims to pursue
Constitutional Motions in relation to their criminal proceedings, the
State has effectively barred recourse for those victims to a competent
court or tribunal in Jamaica for protection against acts that potentially
violate their fundamental rights under the Constitution of Jamaica and
under the Convention. As a
consequence, the State has failed to fulfill its obligations under Article
25 of the Convention as regards the victims in these cases.
226.
Accordingly, the Commission concludes that the State has failed to
respect the rights of the victims in the four cases under consideration in
this report, Case Nos. 11.823 (Leroy Lamey), 11.843 (Kevin Mykoo), 11.846
(Milton Montique), and 11.847 (Dalton Daley), under Article 8(1) of the
Convention by denying them an opportunity to challenge the circumstances
of their convictions under the Constitution of Jamaica in a fair hearing.
The Commission also concludes that the State has failed to provide
the victims with simple and prompt recourse to a competent court or
tribunal for protection against acts that violate their fundamental rights
recognized by the constitution or laws of the state concerned or by the
Convention, and has therefore violated their rights to judicial protection
under Article 25 of the Convention.
227.
In light of the above conclusions, the Commission does not consider
it necessary to determine whether the failure of the State to provide
legal aid for Constitutional Motions violates Article 24 of the
Convention.
V.
ACTIONS TAKEN SUBSEQUENT TO REPORT Nº 103/00
228.
The Commission examined this case in the course of its 108th
period of sessions, and on October 16, 2000, adopted Report Nº 103/00,
pursuant to Article 50 of the American Convention.
229.
On October 17, 2000, the Commission transmitted Report Nº 103/00
to the State, and requested that the Government of Jamaica inform the
Commission within two months as to the measures adopted to comply with the
recommendations made to resolve the situation denounced.
230.
As of December 17, 2000, the date of expiration of the prescribed
two-month period, the Commission had not received a response from the
State to Report 103/00.
VI.
CONCLUSIONS
The
Commission, based on the foregoing considerations of fact and law, and in
the absence of a response from the State to Report Nº 103/00, ratifies
its conclusions that:
231.
The State is responsible for violating the rights of the victims in
Case Nos. 11.826 (Leroy Lamey), 11.843 (Kevin Mykoo), 11.846 (Milton
Montique) and 11.847 (Dalton Daley) under Articles 4(1), 5(1), 5(2) and
8(1), in conjunction with violations of Article 1(1) of the American
Convention, by sentencing these victims to a mandatory death penalty.
232.
The State is responsible for violating the rights of the victims in
Case Nos. 11.826 (Leroy Lamey), 11.843 (Kevin Mykoo), 11.846 (Milton
Montique) and 11.847 (Dalton Daley) under Article 4(6) of the Convention,
in conjunction with violations of Article 1(1) of the Convention, by
failing to provide these victims with an effective right to apply for
amnesty, pardon or commutation of sentence.
233.
The State is responsible for violating the rights of the victims in
Case Nos. 11.843 (Kevin Mykoo), 11.846 (Milton Montique) and 11.847
(Dalton Daley) under Article 7(5) and 7(6) of the Convention, in
conjunction with violations of Article 1(1) of the Convention, by failing
to promptly bring the victims before a judge following their arrests, and
by failing to ensure their recourse without delay to a competent court to
determine the lawfulness of their detention.
234.
The State is responsible for violating the rights of the victims in
Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley) under
Articles 7(5) and 8(1) of the Convention, in conjunction with violations
of Article 1(1) of the Convention, by reason of the delays in trying the
victims.
235.
The State is responsible for violating the rights of the victims in
Case Nos. 11.826 (Leroy Lamey), 11.843 (Kevin Mykoo), 11.846 (Milton
Montique) and 11.847 (Dalton Daley) under Article 5(1) and 5(2) of the
Convention, in conjunction with violations of Article 1(1) of the
Convention, by reason of the victims' conditions of detention.
236.
The State is responsible for violating the rights of the victims in
Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley) under
Articles 8(2)(d) and 8(2)(e) in conjunction with violations of Article
1(1) of the Convention, by denying the victims access to legal counsel for
prolonged periods following their arrests.
237.
The State is responsible for violating the rights of the victims in
Case Nos. 11.826 (Leroy Lamey), 11.843 (Kevin Mykoo), 11.846 (Milton
Montique) and 11.847 (Dalton Daley) under Articles 8 and 25 of the
Convention, in conjunction with violations of Article 1(1) of the
Convention, by failing to make legal aid available to these victims to
pursue Constitutional Motions.
VII.
RECOMMENDATIONS
Based
on the analysis and the conclusions in the present report,
THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS REITERATES THE FOLLOWING
RECOMMENDATIONS TO THE STATE OF JAMAICA:
1. Grant the victims in the cases that are the subject of this report
an effective remedy which includes commutation of sentence and
compensation.
2. Adopt such legislative or other measures as may be necessary to
ensure that the death penalty is not imposed in violation of the rights
and freedoms guaranteed under the Convention, including Articles 4, 5 and
8, and in particular, to ensure that no person is sentenced to death
pursuant to a mandatory sentencing law.
3.
Adopt such legislative or other measures as may be necessary to
ensure that the right under Article 4(6) of the Convention to apply for
amnesty, pardon or commutation of sentence is given effect in Jamaica.
4. Adopt such legislative or other measures as may be necessary to
ensure that the victims' rights to humane treatment under Article 5(1)
and 5(2) of the Convention, particularly in relation to their conditions
of detention, are given effect in Jamaica.
5. Adopt such legislative or other measures as may be necessary to
ensure that the right to a fair hearing under Article 8(1) of the
Convention and the right to judicial protection under Article 25 of the
Convention are given effect in Jamaica in relation to recourse to
Constitutional Motions.
VIII.
PUBLICATION
238.
On February 22, 2001, the Commission transmitted Report Nº 5/01
adopted pursuant to Article 51 of the Convention to the State and to the
Petitioners pursuant to Article 51(2) of the Convention and granted the
State a period of one month within which to comply with the Commission's
recommendations. The State
failed to present a response within the time limit prescribed by the
Commission.
239.
Based upon the foregoing considerations, and in the absence of a
response by the State to Report Nº 5/01, the Commission in conformity
with Article 51(3) of the American Convention and Article 48 of its
Regulations decides to ratify the conclusions and reiterate the
recommendations in this Report, to make this Report public, and to include
it in its Annual Report to the General Assembly of the Organization of
American States. The
Commission, according to the norms contained in the instruments which
govern its mandate, will continue evaluating the measures adopted by the
State of Jamaica with respect to the above recommendations until they have
been complied with by Jamaica.
Done
and signed in the city of Santiago, Chile, on the 4 day of the month of
April, 2001. (Signed):
Claudio Grossman, Chairman; Juan Mendez, First Vice-Chairman; Marta Altolaguirre, Second Vice-President;
Hélio Bicudo, Robert
K. Goldman, Peter Laurie, and Julio Prado Vallejo, Commissioners.
The concurring opinion of Dr. Hélio Bicudo is included immediately
after this report.
CONCURRING
OPINION OF COMMISSIONER HÉLIO BICUDO
In the 108th period of sessions
I expressed my opinion that the death penalty has been abolished in the inter-American
system of human rights. In Case 12.028 (Grenada),
concerning the mandatory death sentence imposed on Mr. Donnason Knights, I
presented my argument in favor of this understanding. In the present case,
although I am in general agreement as to the findings, reasoning and
motives of the report, I would like to insist on my position that the
death penalty has already been abolished by the evolution of the normative
standards of the Inter-American system. For this reason I present the
following separate opinion:
1.
The American Declaration of the Rights and Duties of Man
(hereinafter American Declaration), approved at the Ninth International
American Conference, which took place in Santa Fe de Bogota in May and June
of 1948, affirms that “Every human being has the right to life, liberty
and the security of his person” (Article I) and, moreover, that “All
persons are equal before the law and have the rights and duties
established in this Declaration, without distinction as to race, sex,
language, creed or any other factor” (Article II).
2.
Article 4 of the American Convention on Human Rights (hereinafter
American Convention), approved on November 22, 1969 in San
Jose, Costa Rica, states that “Every person has the right to have his
life respected. This right
shall be protected by law and, in general, from the moment of conception.
No one shall be arbitrarily deprived of his life.”
3.
At the same time, the American Convention, by including the right
to personal integrity in the civil and political rights framework, affirms
that “No one shall be subjected to torture or to cruel, inhumane, or
degrading punishment or treatment.”
4.
However, death penalty is provided for in the American Convention
in its original version. Article 4, Section 2 allows the death penalty to
be applied by member states only for the most serious crimes.
5.
There is a contradiction among the aforementioned articles which
repudiate torture, cruel, inhumane or degrading punishment or treatment.
6.
The American Declaration considers life to be a fundamental right,
and the American Convention condemns torture or the imposition of cruel,
inhumane or degrading punishment or treatment. The elimination of a life
could be deemed torture or cruel, inhumane or degrading punishment or
treatment.
7.
It seems that the tolerance expressed in Article 4, Section 2 of
the American Convention reveals the sole adoption of a political position
of conciliation between all member states in order to approve a more
general article, the one about the right to life.
8.
Before analyzing what it means for some states to retain the death
penalty as a part of their legal systems, it is important to note that the
Inter-American Convention to Prevent and Punish Torture, signed in
Cartagena de Indias, Colombia, on December 9th, 1985, describes
the meaning of torture as follows: “Torture shall be understood to be
any act intentionally performed whereby physical or mental pain or
suffering is inflicted on a person for purposes of criminal investigation,
as a means of intimidation, as personal
punishment, as a preventive measure, as a penalty, or for any other
purpose” (Article 2).
9.
Notice that this article addresses torture as a personal punishment
or penalty in all circumstances.
10.
The death penalty brings immeasurable suffering to the individual.
Is it possible to imagine the anguish that the individual feels
when he/she is informed of the verdict?
Or the moments leading up to the actual execution? Would it be possible to evaluate the suffering of those who
wait on death row for execution, in some cases for several years?
In the United States, fifteen, sixteen or seventeen year-old
minors, who committed homicide and subsequently received the death
penalty, wait for fifteen years or longer for their execution.
Is it possible to imagine a fate worse than remaining between hope
and despair until the day of execution?
11.
The OAS member states, by adopting the Convention on Forced
Disappearance of Persons, reaffirm that “the true meaning of American
solidarity and good neighborliness can be none other than that of
consolidating in the Hemisphere, in the framework of democratic
institutions, a system of individual freedom and social justice based on
respect for essential human rights.”
12.
It is important to mention that in 1998 and 1999, the United States
was the only country in the world known for executing minors under 18
years of age. To that extent,
it is important to note that the United States has accepted the
International Covenant on Civil and Political Rights since September 1992,
Article 6(5) of which establishes that the death penalty cannot be imposed
on minors under 18 years old or on pregnant women.
The U.S. Senate opted to express its reservation to this section at
the moment of its ratification but currently there is an international
consensus opposed to that reservation based on Article 19(c) of the
Vienna Convention on the Law of Treaties. This Convention gives the State
the possibility to formulate reservations, but these reservations cannot
be incompatible with the object and purpose of the treaty.
13.
In June 2000, Shaka Sankofa, formerly known as Gary Graham, was
convicted in the State of Texas for a crime he committed when he was 17
years old. He was executed
after waiting 19 years on death row, although the Inter-American
Commission on Human Rights (hereinafter “IACHR” or “Commission”)
had formally presented requests to the American government to suspend the
act until the case was decided by the Commission. There were serious
doubts regarding whether Shaka Sankofa had really committed the crime.
The U.S. Government did not respond to the Commission’s
recommendation but could not escape from the jurisdiction of the IACHR on
the protection of human rights, according to the American Declaration. The Commission thus sent out a press release condemning the
U.S. decision, since it was not in accordance with the inter-American system of
protection of human rights.
14.
The Inter-American Convention on the Prevention, Punishment and
Eradication of Violence against Women (hereinafter Convention of Belem do
Pará), approved in Belem do Pará, Brazil, on June 9, 1994, does not allow
the imposition of the death penalty on women.
Article 3 states “ Every woman has the right to be free from
violence in both the public and private spheres” and Article 4 states
that “Every woman has the right to have her life respected”.
Regarding the duties of states, the Convention of Belem do Pará
establishes that states should “refrain from engaging in any act or
practice of violence against women and ensure that their authorities,
officials, personnel, agents, and institutions act in conformity with this
obligation”. Therefore, if every woman has the right to life, and the
right to be free from violence, and the state is denied the practice of
violence against women, it seems that the Convention of Belem do Pará
prohibits the application of the death penalty to women. There is
no discrimination against men or children.
It cannot be argued that it is “positive discrimination” or
“affirmative action”, because it only serves to preserve the inherent
rights of the individual. For
instance, pregnant women or women with children are entitled to rights
based solely on the fact of their exclusive female condition.
Thus, the same rights cannot be extended to men.
Positive discrimination is usually applied to bring about equality,
through temporary and proportional measures, to groups of people that
experience de facto inequality.
There is no inequality between men and women with regard to the
right to life. In any case,
the imposition of the death penalty is not a proportional measure, as we
will see later on. When it
comes to common rights–such as the right to life-we cannot argue
positive discrimination. All
persons are equal before the law. The
prohibition of the death penalty for women was based on both the female
condition and the human condition.
15.
Article 24 of the American Convention affirms that all persons are
equal before the law, and consequently, they are entitled, without
discrimination, to equal protection of the law.
Although that Convention does not define discrimination, the IACHR
understands that discrimination includes distinction, exclusion,
restriction or preference which has the purpose or effect of nullifying or
impairing the recognition of human rights and fundamental freedoms in the
political, economic, social, cultural or any other field of public life
(Manual on the Preparation of Reports on Human Rights, International
Covenant on Civil and Political Rights, Article 26.)
16.
It is also important to note that Article 37(a) of the Convention
on the Rights of the Child prohibits the imposition of the death penalty
on minors under 18 years of age.
17.
The above-mentioned Convention is considered a universal legal
instrument in the area of human rights. (Only the United States and
Somalia have failed to ratify it.)
18.
Article 37 of the Convention on the Rights of Child states: “No child shall be subjected to torture or other cruel,
inhuman or degrading treatment or punishment. Neither capital punishment
nor life imprisonment without possibility of release shall be imposed for
offences committed by persons below eighteen years of age.”
19.
Although the U.S. has not ratified the Convention on the Rights of
the Child, it became a signatory to the Convention in February 1995, and
has thus accepted its legal obligations.
Article 18 of the Vienna Convention on the Law of Treaties
establishes that the States that have signed a treaty, but not ratified
it, shall refrain from engaging in any act that is contrary to its purpose
until it has decided to announce its intention of not becoming part of
that treaty. Despite the fact
that the U.S. has not ratified the Convention, the U.S. State Department
has already recognized that the Vienna Convention on the Law of Treaties
serves as a precedent for international treaty proceedings.
The U.S. State Department considers the Convention a declaration of
customary law based on the Vienna Convention on the Law of Treaties, which
establishes the importance of treaties as sources of international law as
well as a method of peaceful development and cooperation between nations,
no matter what their Constitutions and social systems entail.
20.
As mentioned above, the imposition of the death penalty against
women, is not a case in which positive discrimination could be applied
because Article 37(a) of the Convention on the Rights of the Child aims
to preserve rights that are created not only for children
but for all human beings.
21.
If that is the case, then Article 4 of the American Convention has
lost its previous meaning. Therefore
states that have signed and ratified it as well as other international
instruments cannot impose the death penalty upon any person, regardless of
gender or any other personal condition.
22.
The issue will be examined under legal hermeneutics of positive
law. International law presupposes [normative] dispositions that are above
[the] State [law]. As set forth by the illustrious Italian jurist,
Norberto Bobbio, universalism–which international law attempts to embody–reappears today,
specially after the end of WWII and the creation of the UN, no longer as a
belief in an eternal natural law [order], but as the will to constitute,
in the end, a single body of positive law of the social and historical
development (as natural law and the state of nature). He also ponders that
the idea of the single global State is the final limit of the idea of the
contemporary juridical universalism, that is the establishment of a
universal positive law (Cf. Teoria do Ordenamento Jurídico, Universidade de Brasília, 1991, p.
164).
23.
In the present case, we cannot allow a previous law with the same
content of a new law to supersede the new law.
That would be considered as antinomy, and therefore it has to be
solved. What are the rules that should prevail? There is no doubt that
they are incompatible. But how could we solve the problem?
24.
According to Mr. Bobbio, the criteria to solve an antinomy are the
following: a) chronological criteria, b) hierarchical criteria, c)
specialty criteria.
25.
According to the chronological criteria the new law prevails over
the previous law–lex posteriori derogat priori. According to the hierarchy criteria,
international law prevails over national law. Lastly, the specialty
criteria could also apply in this case, since it is a specific law with a
specific purpose.
26.
It is impossible to argue that death penalty as described in the
Section 2 of Article 4 of the American Convention is a specific law as
opposed to general law of the right to life.
It is also not possible to accept the idea that death penalty is
considered a particular penalty that does not entail a violation of right
to life or torture or any other cruel or inhumane treatment.
27.
The Inter-American Court of Human Rights affirms that the
imposition of restrictions on the death penalty should be effected by
setting up a limit through an irreversible and gradual process, which
would be applied both in countries that have not abolished the death
penalty and in those that have done so. (Advisory Opinion – OC-3/83)
28.
The Court also understands that the American Convention is
progressive to the extent that, without deciding to abolish the death
penalty, it adopts certain measures to limit it and diminish its
application until it is no longer applicable.
29.
It is worth reviewing the preparatory work of the American
Convention that illustrates the interpretation of Article 4. The proposal
to outlaw the death penalty made by several delegations did not receive
any opposing vote, despite the fact that the majority of votes had not
been reached. The development of negotiations in the Conference can be
reviewed in the following declaration presented before the Plenary Session
of Completion and signed by 14 of 19 participants (Argentina, Costa Rica,
Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras,
Mexico, Nicaragua, Panama, Paraguay, Uruguay and Venezuela):
The delegations that
sign below, participants of the Specialized Inter-American Conference on
Human Rights, taking into consideration the highly prevailing feeling,
expressed in the course of the debates on the abolishment of the death
penalty, in accordance with the purest humanistic traditions of our
peoples, solemnly declare our firm aspiration of seeing the application of
the death penalty in the American context eradicated as of now, and our
indeclinable purpose of effecting all possible efforts so that, in the
short term, an additional protocol to the American Convention on Human
Rights “Pact of San Jose, Costa Rica” might be adopted, consecrating
the definitive abolition of the death penalty, and putting America once
more in the forefront of the
protection of fundamental human rights. (author’s translation from the
original in Spanish, Acts and documents, OAS-serv. K-XVI-I2, Washington
– DC, 1973, hereafter Acts and Documents, repr. 1978, Spanish version,
p. 161, 195, 296 and 449/441).
30.
In agreement with these assertions, the Commission’s Rapporteur
made clear, on this article, his firm tendency towards the abolition of
this penalty. (Acts and documents, supra, n.296)
31.
Moreover, the rule of law (Estado de derecho)
implies, when punishment is imposed, the knowledge of what the penalty
actually means. When the purpose of the punishment applied is not only
retribution, but the recuperation or rehabilitation of the convict, he or
she knows what will happen in his or her future. If the punishment is
purely retributive, as in a sentence imposing imprisonment for life, the
convict still envisages his future. But if the convict is sentenced to
death, the State does not point to what the elimination of his being will
bring him. Science, with all its developments, has not managed, up to now,
to unveil the after-death: future life, with prize or punishment? Pure and
simple elimination?
32.
In this sense, the rule of law forbids the imposition of a penalty
whose consequences cannot be unveiled.
33.
In truth, all punishment enacted by the legislator constitutes species
of sanctions, distributed according to a rational scale that attempts to
take into consideration a series of factors specific to each hypothesis of
unlawfulness.
34.
The right and obligation to punish which belongs to the State
expresses itself in a variety of figures and measures, according to
gradual solutions, measurable in money or in amounts of time. This gradual
order is essential to criminal justice, for it would not be realized
without a superior criterion of equality and proportionality in the
distribution of punishment, for transgressors would then receive more than
their just deserts.
35.
With the imposition of the death penalty, however, the
aforementioned serial harmony is abruptly and violently shattered; one
jumps from the temporal sphere into the non-time of death.
36.
With what objective criterion or with what rational measure (for ratio
means reason and measure) does one shift from a penalty of 30 years
imprisonment or a life sentence to a death penalty? Where and how is
proportion maintained? What is the scale that ensures proportionality?
37.
It could be argued that there is also a qualitative difference
between a fine and detention, but the calculus of the former can be
reduced to chronological criteria, being determined, for instance, in
terms of work days lost, so that it has a meaning of punishment and
suffering to the perpetrator, linked to his patrimonial situation. In any
circumstance, these are rational criteria of convenience, susceptible to
contrast with experience, that govern the passage from one type of
punishment to the other, whereas the notion of “proportion” is
submerged in the face of death.
38.
Summing up, the option for the death penalty is of such order that,
as Simmel affirmed, it emphasizes all
contents of the human life, and it could be said that it is inseparable
from a halo of enigma and mystery, of shadows that cannot be dissipated by
the light of reason: to attempt to fit it into the scheme of penal
solutions is equal to depriving it from its essential meaning to reduce it
to the violent physical degradation of a body (quoted by Miguel Reale, in O
Direito como experiencia).
39.
Hence, the conclusion of the eminent philosopher and jurist Miguel
Reale: Analyzed according to its semantic values, the concept of
punishment and the concept of death are logically and ontologically
impossible to reconcile and that, therefore the “death penalty” is a “contradictio
in terminis” (cf. O Direito
como Experiencia, 2nd edition, Saraiva, São Paulo, Brazil)
40.
The jurist Hector Faundez Ledesma writes on this topic: “as the
rights consecrated in the Convention are minimum rights, it cannot
restrict their exercise in a larger measure than the one permitted by
other international instruments. Therefore, any other international
obligation assumed by the State in other international instruments on
human rights is of utmost importance, and its coexistence with the
obligations derived from the Convention must be taken into consideration
insofar as it might be more favorable to the individual.”
41.
“The same understanding”, continues the jurist, “is extensive
to any other conventional provision that protects the individual in a more
favorable way, be it contained in a bilateral or multilateral treaty, and
independently of its main purpose” (El Sistema Interamericano de Protección de los Derechos Humanos, 1996, pp. 92-93).
42.
Moreover, Article 29(b) of the American Convention establishes, in
the same line of thought, that no disposition of the Convention may be
interpreted in the sense of “restricting the enjoyment or exercise of
any right or freedom recognized by the virtue of the laws of any State
Party”. In this sense, it is opportune to refer to the IACHR report on
Suriname, and the Advisory Opinions 8 and 9 (of the Inter-American Court
on Human Rights, 1987)
43.
On this opportunity, the IACHR affirmed that the prohibition of
imposing the death penalty in cases where the offender was a minor at the
time of the crime was an emerging principle of international law. Twelve
years later there is no doubt that this principle is totally consolidated.
The ratification of the Convention on the Rights of the child by 192
States, where the death penalty of minor offenders is prohibited, is a
irrefutable proof of the consolidation of the principle (Cf. Report
presented by Amnesty international to the IACHR, in Washington, on March 5th,
1999).
44.
It is true that the Universal Declaration on Human Rights does not
refer specifically to the prohibition of the death penalty, but
consecrates in its Article 3 the right of every person to his life,
liberty and security (the same provision can be found on Article I of the
American Declaration of the Rights and Duties of Man). Adopted by the
General Assembly of the United Nations in 1948, under the guise of a
recommendatory resolution, the Universal Declaration is held – by many
important scholars – to be a part of the body of international customary
law and a binding norm (jus cogens)
– as defined in Article 53 of the Vienna Convention on the Law of
Treaties. Mutatis Mutandi, it
would be lawful to affirm that the Convention on the Rights of the Child,
by reason of its breadth and binding character, must also be observed by
the only two states that have not ratified it, as has already been said,
and has been recognized by the Department of State of the United States of
America.
45.
It is convenient to observe, furthermore, that the European Court
of Human Rights, in its decision in the Soering Case–Jens
Soering, born in Germany, in detention in England and submitted to an
extradition procedure on behalf of the government of the United States
pending charges of murder committed in Virginia, a State that punishes
this crime with the death penalty–made opportune comments regarding
Article 3 of the European Convention, which establishes the interdiction
of torture, inhuman cruel or degrading treatment or punishment. The Court
considered that the request could not be granted unless the person subject
to extradition would be guaranteed his or her rights under Article 3 of
the Convention (cf. Jurisprudence de
la Cour europeenne des droits de l’homme, 6th ed. 1998,
Sirey, Paris, pp. 18 and ff.).
46.
The Court concluded that the extradition to a country that applied
the death penalty did not constitute a breach of the right to life or to
the right to personal integrity since the death penalty is not, in itself,
explicitly prohibited by the European Convention. Nonetheless, the
possibility that the condemned could spend years waiting for the moment–totally unpredictable, by the way–of the execution of the
punishment, the so called “death row syndrome”, was considered by the
Court as constituting a cruel treatment and, therefore, a breach of the
right to personal integrity.
47.
It is, doubtlessly, an ambiguity: if there is a delay in imposing
the penalty, there is violation of the right; if the sentence is carried
out immediately, the state’s action will not be considered a breach of
the fundamental right to life.
48.
This decision gives rise to the conclusion that little by little,
the traditional vision, the positivistic application of the law, is being
abandoned. Instead of a literal interpretation of the texts in discussion,
a teleological hermeneutics is searched, in this case, of the European
Convention, to achieve the major conclusion that the death penalty should
not be permitted in any hypothesis.
49.
Therefore, the absolute prohibition, in the European Convention, of
the practice of torture or of inhuman or degrading treatment or punishment
shows that Article 3, referred to above, proclaims one of the fundamental
values of democratic societies. The judgment underlines that provisions in
the same sense can be found in the International Covenant on Civil and
Political Rights of 1966, and in the American Convention on Human Rights
of 1969, protecting, in all its extension and depth, the right of the
human person. The Court concludes that it is an internationally approved
norm.
50.
It is true that the concept of inhuman or degrading treatment or
punishment depends upon a whole set of circumstances. It is not for any
other reason that one should have utmost care to ensure the fair balance
between the requirements of the communities’ general interest and the
higher imperatives of the protection of the fundamental rights of the
individual, that take form in the principles inherent to the European
Convention taken as a whole.
51.
Amnesty International has affirmed that the evolution of the norms
in Western Europe concerning the death penalty leads to the conclusion
that it is an inhuman punishment, within the meaning of Article 3 of the
European Convention. It is in this sense that the judgment of the court in
the Soering case should be understood.
52.
For its part, the Inter-American Court on Human rights has already
affirmed that “The right to life and the guarantee and respect thereof by States cannot
be conceived in a restrictive manner. That right does not merely imply
that no person may be arbitrarily deprived of his or her life (negative
obligation). It also demands of the States that they take all appropriate
measures to protect and preserve it (positive obligation).” (Cf.
Repertorio de Jurisprudencia del Sistema Interamericano de Derechos Humanos, 1998, Washington College of Law, American University, 1/102).
53.
It was for the same reason that the European Court, in the
aforementioned Soering decision, considered that “Certainly,
‘the Convention is a living instrument which ... must be interpreted in
the light of present-day conditions’; and, in assessing whether a given
treatment or punishment is to be regarded as inhuman or degrading for the
purposes of Article 3 (art. 3), "the Court cannot but be influenced
by the developments and commonly accepted standards in the penal policy of
the Member States of the Council of Europe in this field” (par. 102).
54.
In fact, to determine whether the death penalty, because of current
modifications of both domestic and international law, constitutes a
treatment prohibited by Article 3, it is necessary to take into
consideration the principles that govern the interpretation of that
Convention. In this case, both in the European Convention and in the
American Convention, “No one shall be subjected to torture or to inhuman
or degrading treatment or punishment” (Article 3 of the European
Convention); “No one shall be subjected to torture or to cruel, inhuman,
or degrading punishment or treatment.” (Article 5(2) of the American
Convention on Human Rights).
55.
In the same line of thought, in the case between Ireland and the
United Kingdom, the European Court had already decided that “The
Convention prohibits in absolute terms torture and inhuman or degrading
treatment or punishment, irrespective of the victim's conduct (…)
Article 3 (art. 3) makes no provision for exceptions (…)the only
relevant concepts are 'torture' and 'inhuman or degrading
treatment', to the exclusion of 'inhuman or degrading
punishment'.(par. 163-164)
56.
More recently, in its Advisory Opinion OC-16, of October 1st,
1999, requested by Mexico, the Inter-American Court of Human Rights
considered it opportune to state that, as regards the right to information
about consular assistance, as part of the due process guarantees, that in
a previous examination of Article 4 of the American Convention, the Court
observed that the application and imposition of capital punishment are
governed by the principle that "no one shall be arbitrarily deprived
of his life." Both Article 6 of the International Covenant on Civil
and Political Rights and Article 4 of the Convention require strict
observance of legal procedure and limit application of this penalty to
"the most serious crimes." In both instruments, therefore, there
is a marked tendency toward restricting application of the death penalty
and ultimately abolishing it. (par. 134)
57.
Is it reasonable to ask what is still lacking for the universal
elimination of the death penalty? Simply the total recognition of the
rights emanated from the treaties.
58.
In support of this idea, we find the concurring vote, in the
above-mentioned Advisory Opinion requested by Mexico, of Judge Cançado
Trindade, wherein relevant assertions are made concerning the hermeneutics
of law in face of the new protection demands.
59.
In his concurring vote, the illustrious international legal scholar
and current President of the Court (1999/2001) underlines that “The very
emergence and consolidation of the corpus
juris of the International Law of Human Rights are due to the reaction
of the universal juridical conscience
to the recurrent abuses committed against human beings, often warranted by
positive law: with that, the Law (el
Derecho) came to the encounter of the human being, the ultimate
addressee of its norms of protection.” (Concurring
vote, par.4)
60. The
author of the concurring vote also warns that “In the same sense the
case-law of the two international tribunals of human rights in operation
to date has oriented itself, as it could not have been otherwise, since
human rights treaties are, in fact, living instruments, which accompany
the evolution of times and of the social milieu in which the protected
rights are exercised” (ibid,
par. 10)
61.
In this sense the European Court on Human Rights, in its Tyrer
vs. United Kingdom Case (1978), when determining the unlawfulness of
physical punishment applied to teenagers in the Isle of Man, affirmed that
the European Convention on Human Rights is “a living instrument which
... must be interpreted in the light of present-day conditions”.
62.
Finally, with the demystification of the postulates of the
voluntarist legal positivism, it has become clear that the answer to the
problem of the basis and the validity of general international law can
only be found in the universal legal consciousness, from the affirmation
of an idea of objective justice.
63.
Furthermore, in a meeting of representatives of the human rights
treaty bodies, it was emphasized that conventional procedures are part of
a broad international system of human rights protection, which has–as
a basic postulate–the indivisibility of human rights (civil,
political, economic, social and cultural). To ensure in practice the
universalization of human rights, the meeting recommended the universal
ratification, up to the year 2000, of the six core human rights treaties
of the United Nations (the two International Covenants of 1966; the
conventions on the elimination of racial discrimination and discrimination
against women; the UN Convention against Torture; and the Convention on
the Rights of the Child), of the three regional conventions on human
rights (European, American and African), and the ILO Conventions that
concern basic human rights. The representatives at the meeting warned that
the non-compliance by the states in respect of their obligation to ratify
constituted a breach of conventional international obligations and that
the invocation of state immunity, in this context, would result in a
“double standard” that would punish the states that duly complied with
their obligations. (Cançado
Trindade, Tratado de Direito
Internacional dos Direitos Humanos, vol 1, Fabris Ed. 1997, pp.
199-200)
64. Article
27 of the Vienna Convention on the Law of Treaties of 1969 forbids the
invocation of domestic law to justify the non-compliance of an
international obligation. Moreover, according to Article 31 of the Vienna
Convention: “A treaty shall be interpreted in good faith in accordance
with the ordinary meaning to be given to the terms of the treaty in their
contest and in light of its object and purpose”. It follows also that,
according to the doctrine of “effet utile”, the interpreter must not
deny any term of a normative provision its value in the text: no provision
can be interpreted as not having been written.
65.
In effect, the Inter-American Court, in its Advisory opinion
OC-14/94, has held that: “Pursuant to international law, all obligations
imposed by it must be fulfilled in good faith; domestic law may not be
invoked to justify nonfulfillment. These rules may be deemed to be general
principles of law and have been applied by the Permanent Court of
International Justice and the International Court of Justice even in cases
involving constitutional provisions [Greco-Bulgarian “Communities”,
Advisory Opinion, 1930, P.C.I.J., Series B, Nº 17, p.32; Treatment of
Polish Nationals and Other Persons of Polish Origin or Speech in the
Danzig Territory, Advisory Opinion, 1932, P.C.I.J., Series A/B, Nº 44, p.
24; Free Zones of Upper Savoy and the District of Gex, Judgment, 1932,
P.C.I.J., Series A/B, Nº 46, p. 167; and, I.C.J. Pleadings, Applicability
of the Obligation to Arbitrate under Section 21 of the United Nations
Headquarters Agreement of 26 June 1947 (Case of the PLO Mission) (1988)
12, at 31-2, para. 47]. (par.35)
66.
In view of the considerations presented here, it can be said that
the norm of Article 4, section 2 of the American Convention has
been superseded by the aforementioned conventional provisions, following
the best hermeneutic of the international law of human rights, with the
result that it is prohibitive, for domestic law–even if older than the
American Convention–to apply cruel punishment, such as the death
penalty.
67.
This result also follows from the principle of the international law of
human rights that all action must have as its basic goal the
protection of victims.
68.
In light of these considerations, provisions such as Article 4(2)
of the American Convention on Human Rights should be disregarded, in favor
of legal instruments that better protect the interests of the victims of
violations of human rights.
Done
and signed in the city of Santiago, Chile, on the 4th day of the month of
April, 2001. (Signed): Dr. Hélio
Bicudo, Commissioner.
[ Table
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Kamasinski v. Austria,
supra.
Press Release Nº 9/00, Washington, D.C. June 28, 2000:
“The
Inter-American Commission on Human Rights deplores the execution of
Shaka Sankofa, formerly known as Gary Graham, in the state of Texas on
June 22, 2000. Mr. Sankofa was executed, despite formal requests by
the Commission for the United States to ensure a suspension of Mr.
Sankofa's execution pending the determination of a complaint lodged on
his behalf before the Commission.
In
1993, the Commission received a complaint on behalf of Mr. Sankofa,
alleging that the United States, as a Member State of the Organization
of American States, had violated Mr. Sankofa's human rights under the
American Declaration of the Rights and Duties of Man, including his
right to life under Article I of that instrument. In particular, it
was contended that Mr. Sankofa was sentenced to death for a crime that
he was alleged to have committed when he was 17 years of age, that he
was innocent of that crime, and that he had been subjected to legal
proceedings that did not comply with international due process
standards.
On
August 11, 1993, the Commission opened Case Nº 11.193 in respect of
Mr. Sankofa's complaint. Following a hearing on the matter on October
4, 1993, the Commission transmitted to the United States on October
27, 1993 a formal request for precautionary measures under Article
29(2) of the Commission's Regulations, asking that the United States
ensure that Mr. Sankofa's death sentence was not carried out, in light
of his pending case before the Commission. At that time, Mr. Sankofa's
execution, which had previously been scheduled for August 17, 1993,
was postponed pending the completion of domestic judicial procedures.
In
February 2000, the Commission was informed that Mr. Sankofa's domestic
proceedings were nearly completed, and that the issuance of a new
warrant of execution was imminent. Accordingly, in a February 4, 2000
letter to the United States, the Commission reiterated its October
1993 request for precautionary measures. Subsequently, in May 2000,
the Commission received information that Mr. Sankofa's petition before
the U.S. Supreme Court had been dismissed and that his execution was
scheduled for June 22, 2000. Accordingly, on June 15, 2000, during its
107th Period of Sessions, the Commission adopted Report Nº
51/00, in which it found Mr. Sankofa's petition to be admissible and
decided that it would proceed to examine the merits of his case. Also
in this report, the Commission again reiterated its request that the
United States suspend Mr. Sankofa's death sentence pending the
Commission's final determination of his case.
By
communication dated June 21, 2000, the United States acknowledged the
receipt of the Commission's February 4, 2000 communication and
indicated that it had forwarded the same to the Governor and Attorney
General of Texas. On June 22, 2000, however, the Commission received
information that the Texas Board of Pardons and Paroles declined to
recommend that Mr. Sankofa be granted a reprieve, commutation or
pardon, and that his execution was to proceed on the evening of June
22, 2000. Consequently, by communication of the same date, the
Commission requested that the United States provide an urgent response
to its previous request for precautionary measures. Regrettably, the
United States did not respond to the Commission's June 22, 2000
request, and Mr. Sankofa's execution proceeded as scheduled.
The
Commission is gravely concerned that, despite the fact that Mr.
Sankofa's case had been admitted for consideration by a competent
international human rights body, the United States failed to respect
the Commission's requests to preserve Mr. Sankofa's life so that his
case could be properly and effectively reviewed in the context of the
United States' international human rights obligations. In light of the
irreparable damage caused by such circumstances, the Commission calls
upon the United States and other OAS Member States to comply with the
Commission's requests for precautionary measures, particularly in
those cases involving the most fundamental right to life.”
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