... continued 

b.       Mr. Thomas' Mandatory Death Sentence under Articles 4, 5 and 8 of the Convention

98.     In previous cases involving the application of capital punishment under the Offenses Against the Person Act in Jamaica, the Commission has evaluated the mandatory nature of the death penalty under that legislation in light of Article 4 (right to life),[25] Article 5 (right to humane treatment)[26] and Article 8 (right to a fair trial)[27] of the Convention and the principles underlying those provisions.  It has also considered the mandatory death penalty in light of pertinent authorities in other international and domestic jurisdictions, to the extent that those authorities may inform the appropriate standards to be applied under the American Convention.[28] Based upon these considerations and analysis, the Commission has reached the following conclusions.

99.     First, the Commission has found that the supervisory bodies of international human rights instruments have subjected the death penalty provisions of their governing instruments to a rule of restrictive interpretation, to ensure that the law strictly controls and limits the circumstances in which a person may be deprived of his life by authorities of the state.  This includes strict compliance with standards of due process.[29]

100.   In addition, the Commission has identified a general recognition by domestic and international authorities that the death penalty is a form of punishment that differs in substance as well as in degree in comparison with other means of punishment.  It is the absolute form of punishment that results in the forfeiture of the most valuable of rights, the right to life and, once implemented, is irrevocable and irreparable.  The Commission has accordingly determined that the fact that the death penalty is an exceptional form of punishment must also be considered in interpreting Article 4 of the American Convention.[30]

101.   Finally, the Commission has observed that under the express terms of Article 4 of the Convention, certain circumstances of individual offenses and individual defendants may bar the imposition or application of the death penalty altogether, and as a consequence must be taken into account in sentencing an individual to death.[31]

102.   In the context of these interpretive rules and principles, the Commission has also previously evaluated mandatory death penalty legislation under Articles 4, 5 and 8 of the Convention, and has concluded that imposing the death penalty through mandatory sentencing, as Jamaica has done in respect of crime of capital murder, is not consistent with the terms of Article 4(1), 5(1), 5(2), 8(1) and 8(2) of the Convention and the principles underlying those Articles.[32] The Commission observes in this regard that a majority of the UN Human Rights Committee recently reached a similar conclusion in the context of Article 6(1) of the International Covenant on Civil and Political Rights.[33]

103.   The Commission has determined that imposing the death penalty in a manner that conforms with Articles 4, 5 and 8 of the Convention requires an effective mechanism by which a defendant may present representations and evidence to the sentencing court as to whether the death penalty is a permissible or appropriate form of punishment in the circumstances of his case.  In the Commission’s view, this includes, but is not limited to, representations and evidence as to whether any of the factors incorporated in Article 4 of the Convention may prohibit the imposition of the death penalty.[34]

104.   In reaching this conclusion, the Commission has identified a principle common to those democratic jurisdictions that have retained the death penalty, according to which the death penalty should only be implemented through “individualized” sentencing.[35] Through this mechanism, the defendant is entitled to present submissions and evidence in respect of all potentially mitigating circumstances relating to his or her person or offense, and the court imposing sentence is afforded discretion to consider these factors in determining whether the death penalty is a permissible or appropriate punishment.  Mitigating factors may relate to the gravity of the particular offense or the degree of culpability of the particular offender, and may include such factors as the offender’s character and record, subjective factors that might have motivated his or her conduct, the design and manner of execution of the particular offense, and the possibility of reform and social readaptation of the offender.

105.   Finally, the Commission has previously observed that Jamaica has already considered it appropriate to prescribe in its legislation a mechanism by which a jury may determine whether an individual female offender should be spared the death penalty because she is pregnant.  The Commission has therefore considered that the foundation already exists under Jamaican law to extend this mechanism, or to develop a comparable mechanism, to permit a jury to consider other potentially mitigating factors pertaining to an offender in determining whether the death penalty should be imposed in the circumstances of the offender's case.[36]

106.   Applying these findings in the context of the case presently before it, the Commission has confirmed that Mr. Thomas was convicted of two offenses of capital murder under Jamaica's Offences Against the Person Act.  Once an offender is found guilty of capital murder under that Act, section  3(1) of the Act requires a court to impose the death penalty.  With the exception of the provisions in sections 3(2) to 3(6) of the Act governing pregnant offenders, no provisions in the Act have been identified that permit a judge or jury to consider the personal circumstances of an offender or his or her offense, such as the offender’s record or character, the subjective factors that may have motivated his or her conduct, or the offender’s likelihood of reform or social readaptation, in determining whether the death penalty is an appropriate penalty for a particular offender in the circumstances of the offender’s case.  Upon satisfying the elements of section 3(1) of the Act, death is the automatic penalty.

107.   Consequently, the Commission concludes that once Mr. Thomas was found guilty of his crimes, the law in Jamaica did not permit a hearing by the courts as to whether the death penalty was a permissible or appropriate penalty.  There was no opportunity for the trial judge or the jury to consider such factors as Mr. Thomas’ character or record, the nature or gravity of Mr. Thomas’ crimes, or the subjective factors that may have motivated his conduct, in determining whether the death penalty was an appropriate punishment.  Mr. Thomas was likewise precluded from making representations on these matters, as a consequence of which there is no information on the record as to potential mitigating factors that might have been presented to the trial court.  The court sentenced Mr. Thomas based solely upon the category of crimes for which he had been found responsible.

108.   In this context, and in light of the Commission's prior analysis of mandatory death penalties under the Convention, the Commission concludes that the State violated Mr. Thomas' rights under Articles 4(1), 5(1), 5(2), and 8(1) of the Convention, in conjunction with violations of Articles 1(1) and 2 of the Convention, by sentencing him to a mandatory death penalty.

109.   With respect to Article 4(1) of the Convention, the Commission concludes that the trial court was compelled under the State’s legislation to impose a death sentence upon Mr. Thomas, with no discretion to consider Mr. Thomas’ personal characteristics and the particular circumstances of his offenses to determine whether death was an appropriate punishment. Mr. Thomas was 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 his case.  Rather, the death penalty was imposed upon Mr. Thomas automatically and without principled distinction or rationalization as to whether it was an appropriate form of punishment in the particular circumstances of his case. Moreover, the propriety of the sentence imposed was not susceptible to any effective form of judicial review, and Mr. Thomas’ execution and death at the hands of the State are imminent, his conviction having been upheld on appeal to the highest court in Jamaica.  The Commission therefore concludes that the State has by this conduct violated Mr. Thomas’ right under Article 4(1) of the Convention not to be arbitrarily deprived of his life, and therefore that Mr. Thomas’ death sentence is unlawful.[37]

110.   The Commission further concludes that the State, by sentencing Mr. Thomas to a mandatory penalty of death absent consideration of his individual circumstances, has failed to respect Mr. Thomas’ physical, mental and moral integrity contrary to Article 5(1) of the Convention, and has subjected him to cruel, inhuman, or degrading punishment or treatment in violation of Article 5(2).  The State sentenced Mr. Thomas to death solely because he was convicted of a predetermined category of crime.  Accordingly, the process to which Mr. Thomas has been subjected would deprive him of his most fundamental right, his right to life, without considering his personal circumstances and the particular circumstances of his offenses.  Not only does this treatment fail to recognize and respect Mr. Thomas' integrity as an individual human being, but in all of the circumstances has subjected him to treatment of an inhuman or degrading nature.  Consequently, the State has violated Article 5(1) and 5(2) of the Convention in respect of Mr. Thomas.[38]

111.   Finally, the Commission concludes that the State has violated Article 8(1) of the Convention, when read in conjunction with the requirements of Article 4 of the Convention, by subjecting him to a mandatory death sentence.  By denying Mr. Thomas an opportunity to make representations and present evidence to the trial judge as to whether his crime permitted or warranted the ultimate penalty of death, under the terms of Article 4 of the Convention or otherwise, the State also denied Mr. Thomas the right to fully answer and defend the criminal accusations against him, contrary to Article 8(1) of the Convention.[39]

112.   It follows from the Commission’s findings that, should the State execute Mr. Thomas pursuant to his death sentence, this would constitute further egregious and irreparable violations of Articles 4 and 5 of the Convention.

3.       Article 4(6) of the Convention and the Prerogative of Mercy in Jamaica

113.   Article 4(6) of the Convention provides that "[e]very person condemned to death shall have the right to apply for amnesty, pardon, or commutation of sentence, which may be granted in all cases.  Capital punishment shall not be imposed while such a petition is pending decision by the competent authority."

114.   The Petitioners in the present case have also contended that the process for granting amnesty, pardon or commutation of sentence in Jamaica is not consistent with Article 4(6) of the Convention because it does not provide for certain procedural rights which the Petitioners assert are integral to render this rights effective.  In this connection, the authority of the Executive in Jamaica to exercise its Prerogative of Mercy is prescribed in Sections 90 and 91 of the State's Constitution:

90 (1)   The Governor General may, in Her Majesty's name and on Her Majesty's behalf-

(a)         grant to any person convicted of any offence against the law of Jamaica a pardon, either free or subject to lawful conditions;

(b)        grant to any person a respite, either indefinite or for a specified period, from the execution of any punishment imposed on that person for such an offence;

(c)         substitute a less severe form of punishment for that imposed on any person for such an offence; or

(d)        remit the whole or part of any punishment imposed on any person for such an offence or any penalty or forfeiture otherwise due to the Crown on account of such an offence.

(2)        In the exercise of the powers conferred on him by this section the Governor-General shall act on the recommendation of the Privy Council.

91(1)    Where any person has been sentenced to death for an offence against the law of Jamaica, the Governor-General shall cause a written report of the case from the trial judge, together with such other information derived from the record of the case or elsewhere as the Governor-General may require, to be forwarded to the Privy Council so that the Privy Council may advise him in accordance with the provisions of section 90 of this Constitution.

(2)        The power of requiring information conferred on the Governor-General by subsection (1) of this section shall be exercised by him on the recommendation of the Privy Council or, in any case in which in his judgement the matter is too urgent to admit of such recommendation being obtained by the time within which it may be necessary for him to act, in his discretion.[40]

115.   In addressing this issue, the Commission first observes that in the case of McKenzie et al. v. Jamaica, the Commission determined that the process for exercising the Prerogative of Mercy under Sections 90 and 91 of the Jamaican Constitution did not guarantee the condemned prisoners in that case an effective or adequate opportunity to participate in the mercy process, as required under Article 4(6) of the Convention.[41]

116.   In reaching this conclusion, the Commission interpreted the right to apply for amnesty, pardon or commutation of sentence under Article 4(6), when read together with the State's obligations under Article 1(1) of the Convention, as encompassing certain minimum procedural guarantees for condemned prisoners, in order for the right to be effectively respected and enjoyed. These protections were held to include the right on the part of condemned prisoners to submit a request 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.[42] It was also held to entail the right not to have capital punishment imposed while such a petition is pending decision by the competent authority. [43]

117.   In making this determination in the McKenzie et al. Case, the information before the Commission indicated that neither the legislation nor the courts in Jamaica guaranteed the prisoners in those cases any procedural protection in relation to the exercise of the Prerogative of Mercy.  Rather, the petitioners and the State in that case indicated that according to domestic jurisprudence at that time, the exercise of the power of pardon in Jamaica involved an act of mercy that was not the subject of legal rights and therefore is not subject to judicial review, and cited in support the decision of the Judicial Committee of the Privy Council in the Reckley Case, supra.

118.   Since adopting its report in the McKenzie et al. Case, 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.[44]  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.[45]

119.   Notwithstanding the determination in the Neville Lewis Case, however, there is no information in the present case indicating that the State has extended the legal requirements articulated in that decision to Mr. Thomas.  Rather, the record only indicates that Mr. Thomas has been denied clemency on at least one occasion, when a warrant of execution was read to him in May 1999, without having had any opportunity to make representations to the Jamaican Privy Council.  Accordingly, based upon the information available, the Commission finds that the procedure available to Mr. Thomas to seek amnesty, pardon or commutation of sentence has not guaranteed him an effective or adequate opportunity to participate in the mercy process.

120.   The Commission therefore concludes that the State has violated Mr. Thomas' rights under Article 4(6) of the Convention, in conjunction with violations of Articles 1(1) and 2 of the Convention, by denying him an effective right to apply for amnesty, pardon or commutation of sentence.

4.       Articles 4 and 5 of the Convention – Conditions of Detention/Method of Execution

121.   The Petitioners have alleged that the conditions in which Mr. Thomas has been detained by the State constitute a violation of his rights under Article 5(1) of the Convention to have his physical, mental and moral integrity respected, as well as his right under Article 5(2) of the Convention not to be subjected to cruel, unusual or degrading punishment or treatment.

122.   As described in Part III.A.3.c of this Report, the Petitioners have made numerous allegations respecting Mr. Thomas' pre-trial and post-conviction conditions of detention, based in part upon an affidavit sworn by Mr. Thomas.  They claim that between his arrest in January 1995 and his trial in October 1996, Mr. Thomas was detained in inhuman circumstances, as his cell had inadequate sanitation, he was forced to sleep on the floor, and he was fed sub-standard food.  Since his conviction in October 1996, the petitioners contend that Mr. Thomas has been held on death row in St. Catherine District Prison where he is locked in his cell for 23 hours per day.  They also allege that Mr. Thomas is deprived of a mattress or other bedding and sleeps on a concrete bunk, and must use a bucket for sanitation.  According to the Petitioners, Mr. Thomas’ cell has inadequate ventilation and does not have any electric light, and the food provided to prisoners is poor.  Further, the Petitioners allege that no medical or psychiatric care is provided to prisoners, and there is no adequate complaints mechanism to deal with prisoner complaints.

123.   The Petitioners claim further that their allegations are corroborated by more general sources of information concerning prison conditions in Jamaica, including 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.

124.   The State has contended that notwithstanding the content of these reports, a generalized position should not be adopted every time a complaint is lodged with the Commission, but rather each complaint must be considered individually.

125.   Moreover, the State has provided a significantly different version of conditions of detention on death row in St. Catherine's District Prison, by reference to affidavits sworn in November 1998 respecting the conditions of detention of another death row inmate, Neville Lewis.  Based upon these affidavits, the State disputes Mr. Thomas' characterization of his conditions of detention.  The State contends, for example, that death row inmates are provided with foam mattresses, that they are permitted to place light bulbs inside of their cells, that the ventilation in the cells is very good, and that the prisoners clean their cells every day under the supervision of a warder.

126.   The State also contends that a senior officer at the prison is charged with communicating with prisoners on a daily basis to take note of any complaints, that complaints made by prisoners are dealt with promptly, and that on some occasions the Superintendent will hear a prisoner's complaint and take appropriate actions to remedy it. Concerning medical conditions, the State contends that St. Catherine District Prison houses a medical center that is staffed by two registered medical practitioners, a general practitioner and a psychiatrist, and that the general practitioner attends at the medical center daily and when he is not on duty he is on call.

127.   Based upon the record before it, the Commission is faced with contradictory versions of Mr. Thomas' conditions of detention.  The Commission must therefore determine which characterization of Mr. Thomas' detention conditions is more reliable and therefore should be accepted as accurate.  The Commission observes in this regard that the Petitioners have provided the Commission with specific details concerning Mr. Thomas' personal situation in detention prior to and following his conviction, and have supported those details through evidence from Mr. Thomas.  In response the State has submitted general affidavit evidence that does not specifically address Mr. Thomas' situation, but rather provides details concerning the general and specific circumstances of another death row inmate, Neville Lewis.  The State has done so despite the fact that in its observations, the State indicated that it undertook to investigate the specific conditions of detention complained of by Mr. Thomas.

128.   While it appears that Mr. Thomas is detained in the same facility as Mr. Lewis, the Commission should, as the State itself has pointed out, avoid taking a generalized approach when it comes to the issue of prison conditions in the context of individual cases.  Rather, the Commission should endeavor to determine each complaint on its individual circumstances. In the present case, however, the State has not provided any evidence specifically rebutting or otherwise addressing Mr. Thomas' treatment during his pre-trial or post-conviction detention.  Rather, the State has provided information concerning the general and specific detention conditions of another inmate, without specific evidence relating to Mr. Thomas' situation.

129.   Weighing this information on the record, and in the absence of contradictory evidence from the State relating specifically to Mr. Thomas' treatment, the Commission accepts as established the Petitioners' allegations with respect to Mr. Thomas' pre-trial and post-conviction conditions of detention.  According to Mr. Thomas, prior to his trial, he was held in a cell with inadequate sanitation, due in part to the absence of functioning toilets.  In addition, he was forced to sleep on the floor, and he was fed sub-standard food.  Since his conviction in October 1996, Mr. Thomas's detention conditions have included the following:

(a)         he has been locked in cell on death row at St. Catherine District Prison for 23 hours per day;

(b)        he has been deprived of a mattress or other bedding and sleeps on a concrete bunk;

(c)         he has been deprived of adequate hygiene and must use a bucket for sanitation;

(d)        his cell has inadequate ventilation;

(e)         his cell has no electric light;

(f)         he has no access to adequate medical or psychiatric care;

(g)        he is provided with inadequate food;

(h)        he does not have access to an adequate mechanism for dealing with prisoner complaints.[46]

130.   Mr. Thomas' characterization of his conditions of detention is corroborated by more general sources of information provided by the Petitioners concerning prison conditions in Jamaica.  These 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.  The reports provide information regarding such matters as the 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.[47]

131.   The Commission must next determine whether Mr. Thomas' conditions of detention, as determined by the Commission, are inconsistent with Articles 5(1) or 5(2) of the Convention.  After carefully considering the information available, the Commission has found that Mr. Thomas' detention conditions, when considered in light of the lengthy period of more than 4 years for which he has been detained prior to the disposition of his appeals, fail to satisfy the standards of humane treatment under Article 5(1) and 5(2) of the Convention.

132.   In reaching this conclusion, the Commission has evaluated Mr. Thomas' conditions in light of previous decisions of this Commission and by the Inter-American Court of Human Rights, in which similar conditions of detention were found to violate Article 5 of the Convention.[48] Similar to these previous cases, the record in the present case indicates that Mr. Thomas has been held in solitary confinement on death row, in confined conditions with inadequate hygiene, ventilation and natural light.  In addition, the Petitioners claim that Mr. Thomas is allowed out of his cell infrequently, and does not have access to any work or education facilities.  The Petitioners' information also indicates that prisoners are often the subject of abuse by prison guards.  These observations, together with the length of time over which Mr. Thomas has been held in detention, indicate that Mr. Thomas' treatment has failed to meet the minimum standards under Article 5(1) and 5(2) of the Convention.  As the Commission has observed in previous cases, these standards apply irrespective of the nature of the conduct for which the person in question has been imprisoned[49]  and regardless of the level of development of a particular State Party to the Convention.[50]

133.   A comparison of Mr. Thomas' prison conditions with international standards for the treatment of prisoners also suggests that his treatment has failed to respect minimum requirements of humane treatment.  In particular, Rules 10, 11, 12, 15, and 21 of the United Nations Standard Minimum Rules for the Treatment of Prisoners,[51] which in the Commission's view provide reliable benchmarks as to minimal international standards for the humane treatment of prisoners, prescribe for the following basic standards in respect of accommodation, hygiene, medical treatment and exercise:

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.

134.   It is evident based upon the Petitioners' allegations that the State has failed to meet these minimum standards of proper treatment of prisoners.  The cumulative impact of such conditions, together with the length of time for which Mr. Thomas has been incarcerated in connection with his criminal proceedings, cannot be considered consistent with the right to humane treatment under Article 5 of the Convention.[52]

135.   Consequently, the Commission finds that the conditions of detention to which Mr. Thomas has 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.

136.   The Petitioners have also contended that execution by hanging constitutes cruel, unusual or degrading punishment or treatment contrary to Article 5(2) of the Convention and claim that hanging is therefore inconsistent with the requirements under Article 4(2) of the Convention governing the implementation of capital punishment.  Given its conclusions in Part IV.C.2 of this Report that Mr. Thomas' death sentence contravenes 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 method of execution employed in Jamaica constitutes cruel, inhuman or degrading punishment or treatment contrary to Article 5(2) of the Convention.

5.       Article 8 of the Convention - Right to a Fair Trial

137.   The Petitioners have alleged that the State is responsible for violations of Article 8 of the Convention in respect of Mr. Thomas, based upon the absence of an identification parade following his arrest and the directions given by the trial judge to the jury during Mr. Thomas' criminal proceeding.

138.   In particular, the Petitioners allege that the trial judge violated his obligation of impartiality in instructing the jury before their deliberations as follows:

Now, as I said, the prosecution has to prove the death of the deceased.  Well, I do not anticipate you having any problem there that it was the accused who killed him and perhaps here I should indicate the principle of what is known as common design.  When two or more persons join together to commit an offense, commit a crime, that offense is committed, then each person takes an active or participates in the offense is guilty of the crime.  That is the broad principle.  So if you accept that there were two persons taking part - this is the prosecution's case, in a planned robbery, it does not matter which of them is charged with the fatal act.  If they were acting in concert, both of them would be guilty of the crime - of the offense. [emphasis added]

According to the Petitioners, this, in addition to the failure of the police to hold an identification parade following Mr. Thomas' arrest, deprived Mr. Thomas of his right to be presumed innocent and therefore violated his right to a fair trial under Article 8 of the Convention.

139.   In response, the State contends that it is generally for domestic appellate courts to examine the issues when the conduct of a trial is in question, including review of the specific instructions to a jury by a trial judge.  The State further implies that the error alleged by the Petitioners in this case, if proved, could not be considered to have manifestly violated the trial judges' obligation of impartiality.  Consequently, the State argues that it would be inappropriate for the Commission to determine violations of the Convention in relation to the judge's jury instructions in Mr. Thomas' case.

140.   In addressing this issue, the Commission acknowledges its approach, as articulated in previous cases, that it is generally for the appellate courts of States Parties, and not the Commission, to review the manner in which a trial was conducted, unless it is clear that the judge's conduct was arbitrary or amounted to a denial of justice or that the judge manifestly violated his obligation of impartiality.[53] Based upon the record in the present case when evaluated in the context of the Commission's prevailing jurisprudence, however, the Commission considers that the judge manifestly violated his obligation of impartiality during Mr. Thomas' trial, and therefore that the matter is properly the subject of review by the Commission.

141.   The Commission recognizes in this respect that its evaluation and conclusions on this matter differ from those of the Court of Appeal of Jamaica.  In its review of Mr. Thomas' case, the Jamaican Court of Appeal rejected Mr. Thomas' contention that the trial judge was "less than even-handed" in instructing the jury, as cited above, that he "[did] not anticipate you having any problem there that it was the accused who killed [the deceased]." According to its judgment, the Court of Appeal reached this conclusion on the basis that the trial judge's directions prior and subsequent to the impugned statement were in law correct and repaired the "lapse" complained of by Mr. Thomas.  The Court of Appeal therefore concluded that:

[t]he evidence of the prosecution witness was forthright and convincing and the summing up of the learned trial judge was fair, balanced and presented with clarity to the jury.  The defence was adequately addressed.  We find no merit in the ground advanced by [the Appellant] and the application is accordingly refused.[54]

142.   In contrast to the Court of Appeal, however, the task of the Commission is not to assess whether the judge was "even-handed " in his directions to the jury, but rather whether Mr. Thomas' rights to be tried by an impartial tribunal and to be presumed innocent were strictly respected.  In making this determination, the Commission must according to its jurisprudence apply an objective standard under Article 8 of the Convention as to whether Mr. Thomas' trial was tainted by a reasonable apprehension of bias.  And as indicated previously, the Commission must conduct this review with a heightened level of scrutiny, to ensure strict compliance with due process and other pertinent standards under the American Convention.

143.   The Commission notes in this respect that among the requirements for a fair trial under Article 8 of the Convention are impartiality on the part of a tribunal and, in the context of a criminal prosecution, that a defendant be presumed innocent until proven guilty.  In systems that employ a jury system, these requirements apply both to judges and to juries.  The Commission has previously recognized in this connection that the international standard on the issue of "judge and juror impartiality" employs an objective test based on "reasonableness, and the appearance of impartiality."[55] According to this standard, it must be determined whether there is a real danger of bias affecting the mind of the relevant juror or jurors.[56] In a previous capital case involving the United States, for example, the Commission addressed the question of whether the jury before which the defendant in that case was tried had a reasonable appearance of bias.  Although the complainant had failed to obtain relief before domestic courts, the Commission evaluated Mr. Andrews' circumstances under the pertinent provisions of the American Declaration of the Rights and Duties of Man and concluded that:

in assessing the totality of the facts in an objective and reasonable manner the evidence indicates that Mr. Andrews did not receive an impartial hearing because there was a reasonable appearance of "racial bias" by some members of the jury, and the omission of the trial court to voir dire the jury tainted the trial and resulted in him being convicted, sentenced to death, and executed.  The record before the Commission reflects ample evidence of "racial bias."[57]

The European Court of Human Rights has similarly examined the objective impartiality of judges and juries in criminal trials, in the context of Article 6 of the European Convention on Human Rights.[58]

144.   After carefully reviewing the allegations and information presented by the parties on this issue in the present case, the Commission considers that, viewed objectively, the comments by the trial judge were such that, even when read in conjunction with his directions on the law, they gave rise to a clear and real danger of bias on the part of the court trying Mr. Thomas, so as to compromise his right to be presumed innocent and to be tried by an impartial tribunal.  The trial judge's words may reasonably be interpreted as suggesting that he had reached a conclusion as to Mr. Thomas' responsibility for the deaths for which he had been charged.  Further, the comments were made in the course of the trial and before the jury had rendered a final decision as to Mr. Thomas' guilt or innocence.  The Commission also finds that the trial judge's comments, coming as they did from the judicial authority responsible for the conduct of the trial as a whole, can reasonably be considered to have had a influential and prejudicial impact on the jury's deliberations; indeed, on their face they could be read to have encouraged the jury to find Mr. Thomas guilty of the charges against him.[59] Finally, the trial judge did not take distinct steps to clarify his comments or otherwise clearly negate the risk that his words would be interpreted by the jury as a prejudgment of Mr. Thomas' guilt.  In the Commission's view, general directions as to the burden and standard of proof would not have been sufficient for this purpose, particularly to the extent that such directions preceded the trial judge's controversial statement.  In this connection, the significance of maintaining confidence on the part of the public and the accused in the impartiality of a tribunal adjudicating a criminal prosecution cannot be overemphasized, all the more so when the result of the proceeding will determine whether the defendant lives or dies.

145.   In these circumstances, and in light of the heightened scrutiny test applicable in capital cases, the Commission finds violations of Article 8(1) and 8(2) of the Convention, in conjunction with violations of Article 1(1) of the Convention, by reason of the manner in which the judge instructed the jury during Mr. Thomas' trial.

          146.   The Commission also finds in this connection that this serious violation of due process should be considered to have deprived Mr. Thomas' criminal proceedings of their efficacy from the outset and thereby invalidate Mr. Thomas' conviction. Consequently, a re-trial in accordance with due process or, where this is not possible, release, is the appropriate remedy in the circumstances of Mr. Thomas' case.[60]

V.      ACTS TAKEN SUBSEQUENT TO REPORT N° 41/01

          147.   The Commission examined this case in the course of its 110^th regular session and on March 6, 2001 adopted Report N° 41/01 pursuant to Article 50 of the American Convention.

          148.   Also on March 9, 2001, the Commission transmitted Report N° 41/01 to the State, and requested that the Government of Jamaica inform the Commission within two months as to the measures adopted to comply the recommendations made to resolve the situation denounced.

149.   As of May 9, 2001, the date of expiration of the prescribed two-month period, the Commission had not received a response from the State to Report N° 41/01.         

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 N° 41/01, ratifies its conclusions that:

150.   The State is responsible for violating Mr. Thomas' rights under Articles 4(1), 5(1), 5(2) and 8(1) of the Convention, in conjunction with violations of Articles 1(1) and 2 of the Convention, by sentencing him to a mandatory death penalty.

151.   The State is responsible for violating Mr. Thomas' rights under Article 4(6) of the Convention, in conjunction with violations of Articles 1(1) and 2 of the Convention, by failing to provide Mr. Thomas with an effective right to apply for amnesty, pardon or commutation of sentence.

152.   The State is responsible for violating Mr. Thomas' rights under Articles 5(1) and 5(2) of the Convention, in conjunction with violations of Article 1(1) of the Convention, by reason of his conditions of detention.

          153.   The State is responsible for violating Mr. Thomas' rights under Articles 8(1) and 8(2) of the Convention, in conjunction with violations of Article 1(1) of the Convention, by reason of the manner in which the judge instructed the jury during Mr. Thomas' trial.

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 Mr. Thomas an effective remedy, which includes a re-trial in accordance with the due process protections prescribed under Article 8 of the Convention or, where a re-trial in compliance with these protections is not possible, his release, and compensation.

2.       Adopt such legislative or other measures as may be necessary to ensure that the death penalty is not imposed in contravention of the rights and freedoms guaranteed under the Convention, including and in particular Articles 4, 5 and 8.

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 conditions of detention in which Mr. Thomas is held comply with the standards of humane treatment mandated by Article 5 of the Convention.

VIII.    PUBLICATION

154.   On October 25, 2001, the Commission transmitted the content of this report, adopted as Report Nº 112/01 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 inform the Commission of the measures taken to comply with the Commission's recommendations. The State failed to present a response within the time limit prescribed by the Commission.

155.   Based upon the foregoing considerations, and in the absence of a response by the State to Report Nº 112/01, 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 on the 3^rd day of the month of December, 2001. Dean Claudio Grossman, President; Prof. Juan Méndez, First Vice-President; Lic. Marta Altolaguirre, Second Vice-President; Prof. Hélio Bicudo, Prof. Robert K. Goldman, Dr. Peter Laurie and Prof. Julio Prado Vallejo, Commissioners.  The concurring opinion of Dr. Hélio Bicudo is included immediately after this report.

CONCURRING OPINION OF COMMISSIONER HÉLIO BICUDO

          1.       Although I endorse the findings, reasoning and motives of my fellow commissioners in this report, I would like to take the matter further and express my understanding concerning the lawfulness of the death penalty in the inter-American system.

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

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

4.       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.”

5.       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.

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

7.       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.

8.       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.

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

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

11.     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?

12.     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.”

13.     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.

14.     In June 2000, Shaka Sankofa, formerly known as Gary Graham, was executed 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.[61]

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

16.     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.)

17.     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.

18.     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.)

          19.     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.”

20.     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.

21.     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.

22.     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.

23.     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).

24.     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?

25.     According to Mr. Bobbio, the criteria to solve an antinomy are the following: a) chronological criteria, b) hierarchical criteria, c) specialty criteria.[62]

26.     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.

27.     It is impossible to argue that death penalty as described in 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.

28.     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)

29.     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.

30.     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).

31.     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).

32.     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?

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

34.     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.

35.     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.

36.     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.

37.     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?

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

39.     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).

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

41.     The jurist Héctor Faúndez 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.”

42.     “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 Proteccion de los Derechos Humanos, 1996, pp. 92-93).

43.     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 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 of Human Rights, 1987).

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

45.     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.

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

          47.     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.

          48.     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.

          49.     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.

          50.     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.

          51.     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.

          52.     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.

          53.     For its part, the Inter-American Court of 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).

          54.     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).

          55.     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).

          56.     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)

          57.     More recently, in its Advisory Opinion OC-16, of October 1^st, 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, “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)

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

          59.     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.

          60.     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)

          61.     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)

          62.     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”.

          63.     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.

          64.     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)

          65.     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 context 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.

          66.     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)

          67.     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.

          68.     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.

          69.     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 on the 3^rd day of December, 2001. Hélio Bicudo.