Report Nº 55/02
MERITS
CASE 11.765
PAUL LALLION
GRENADA
October 21, 2002

I.        SUMMARY

1.      This Report concerns a petition which was presented to the Inter-American Commission on Human Rights (hereinafter referred to as "the Commission") by Saul Lehfreund Esq., Solicitor, of Messrs. Simons, Muirhead & Burton, Solicitors, in London, United Kingdom, (hereinafter referred to as "the Petitioners") by letter dated June 17, 1997, on behalf of Paul Lallion (hereinafter referred to as "Mr. Lallion"). The petition alleges that the State of Grenada (hereinafter referred to as "the State") violated Mr. Lallion’s rights under the American Convention on Human Rights (hereinafter referred to as "the Convention").

2.       The Petitioners state that Mr. Lallion, a national of Grenada, was tried, and convicted of murder by the State pursuant to the Criminal Code of Grenada,  on December 19, 1994, and the State imposed a mandatory death sentence on him by hanging, in accordance with its domestic law.[1]  According to the Petitioners, Mr. Lallion appealed his conviction and sentence to the Eastern Caribbean Court of Appeal in Grenada and his appeal was dismissed by the Court on September 15, 1995.

3.       The Petitioners argued that Mr. Lallion's petition is admissible because it has satisfied the requirements of Article 46 of the Convention. The Petitioners allege that the State has violated Mr. Lallion's rights under Articles 4(1), 4(6), 5(1), 5(2), 5(6), 7(2), 7(4), 7(5), 8 and 24 of the Convention.

4.       In their petition, the Petitioners requested that the Commission issue Precautionary Measures pursuant to Article 29(2) of its former Regulations against the State and ask that the State suspend Mr. Lallion's execution to avoid irreparable damage to him while his case was pending determination before the Commission. The Petitioners also requested that the Commission recommend that the State quash Mr. Lallion's death sentence and release him from prison.

5.       On September 27, 1999, the Commission at its 104^th Regular Session, found Mr. Lallion's case admissible in Report Nº 124/99 pursuant to Article 46 of the American Convention.

6.       The Commission, on the basis of the information presented and due analysis of the legal claims under the American Convention, concludes as follows:

         1.         The State is responsible for violating Messrs. Lallion's rights under Articles 4(1), 5(1), 5(2) and 8(1), in conjunction with a violation of Article 1(1) of the American Convention, by sentencing Mr. Lallion to a mandatory death penalty.

         2.         The State is responsible for violating Mr. Lallion's right under Article 4(6) of the Convention, in conjunction with a violation of Article 1(1) of the American Convention, by failing to provide Mr. Lallion  with an effective remedy to apply for amnesty, pardon or commutation of sentence.

         3.         The State is responsible for violating Mr. Lallion's rights under Article 5(1) of the American Convention, in conjunction with a violation of Article 1(1) of the American Convention, because of its failure to respect Mr. Lalion's right to physical, mental, and moral integrity by detaining him in  inhumane conditions of detention.

         4.         The State is responsible for violating Mr. Lallion's rights under Articles 8 and 25 of the Convention, in conjunction with a violation of Article 1(1) of the Convention, by failing to make legal aid available to Mr. Lallion in order to pursue a Constitutional Motion.

5.         The State is responsible for violating Mr. Lallion's right to personal liberty as provided by Article 7(2), 7(4), and 7(5) of the Convention, in conjunction with Article 1(1) of the Convention by failing to protect his right to personal liberty.

II.       PROCEEDINGS BEFORE THE COMMISSION

7.       By letter dated June 17, 1997, the Petitioners presented Mr. Lallion's petition to the Commission.  Subsequently,  the Petitioners wrote to the Commission informing it that they intended to forward supplemental arguments concerning the exhaustion of domestic remedies to the Commission. On June 23, and July 2, 1997, the Petitioners forwarded these supplemental arguments to the Commission.

8.       On July 2, 1997, the Commission opened Case Nº 11.765, in respect of Mr. Lallion, and forwarded the pertinent parts of the petition and the Petitioners’ supplementary arguments to the State and requested that the State provide its observations within 90 days with respect to claims raised in the petition, as well as any additional information regarding exhaustion of domestic remedies.  The Commission also requested that the State stay Mr. Lallion's execution pending an investigation by the Commission of the alleged facts.

9.       By letter dated November 3, 1997, the Petitioners requested that the Commission hold a hearing in the case and conduct an on-site visit to Richmond Hill Prison, St. Georges, Grenada, where Mr. Lallion is presently incarcerated. By letter dated January 23, 1998, the Commission informed the State and the Petitioners that a hearing in the case was scheduled for Friday, February 27, 1998, during the Commission’s 98^th Period of Sessions.

10.     The State forwarded its Reply to the petition on February 3, 1998. The Commission transmitted the pertinent parts of the State’s Reply to the Petitioners on February 11, 1998 and requested that the Petitioners submit their observations within 30 days.

11.     On February 24, 1998, the Commission received additional observations from the Petitioners, claiming that the State had also violated Mr. Lallion’s right to personal liberty pursuant to Article 7 of the American Convention.  The Commission forwarded the pertinent parts of the additional information to the State on February 24, 1998, with a response requested within 30 days. In addition, on February 24, 1998, the Commission received the Petitioners’ arguments for the hearing scheduled on February 27, 1998 and forwarded them to the State on February 25, 1998.

12.     The Commission convened a hearing on the admissibility and merits of the Petitioners' case on February 27, 1998 during its 98^th Period of Sessions. The Petitioners attended the hearing and made oral representations to the Commission respecting the claims raised in their petition. The State did not appear at the hearing.

13.     In communications dated September 1, 1998 and August 18, 1999, to the State, the Commission reiterated its request for information pertaining to the Petitioners' additional submissions dated February 24, 1998.

14.     On September 27, 1999, the Commission at its 104^th  Regular Session found Mr. Lallion's case admissible in Report Nº 124/99 pursuant to Article 46 of the American Convention.

15.     On August 20, 2001, the Commission wrote to the State and the Petitioners and informed them that it was placing itself at the disposal of the parties concerned with a view to reaching a friendly settlement in Mr. Lallion's case. In response to The Commission's letter to facilitate the friendly settlement process, on August 30, 2001, the Petitioners wrote to the Commission stating that "we wish to inform you that we would not be willing to enter into a friendly settlement in view of the fact that the State Party despite requests from the Commission, have failed to adequately participate in the process."

16.     To date, the State has not responded to the Commission’s offer of August 20, 2001, to facilitate a friendly settlement between the parties.

III.      POSITIONS OF THE PARTIES ON ADMISSIBILITY

A.      Position of the Petitioners

a.       Background of Paul Lallion's Case

17.     The Petitioners claim that Paul Lallion, a national of Grenada, was tried, and convicted by a Jury of the murder of Hubert Noel ("deceased") on December 19, 1994. The Petitioners contend that the State violated Mr. Lallion’s rights under Articles 4(1), 4(6), 5(1), 5(2), 5(6), 8 and 24 of the Convention by imposing a mandatory death sentence on Mr. Lallion upon his conviction for murder without the opportunity to present any evidence of mitigating circumstances pursuant to Section 234 of the Criminal Code of the 1958 Revised Laws of Grenada. According to the Petitioners,[2] the Prosecution's case at trial was that the deceased's death occurred between Sunday September 19, 1993, and September 29, 1993, and that the deceased was sent by his mother to collect a debt ($140.00) from Mr. Lallion. The Petitioners indicate that at trial Mr. Lallion made an unsworn statement from the "dock" stating that he had known the deceased for a long time and that he did not kill the deceased. In his unsworn testimony, Mr. Lallion stated that he had been picked up by the police on several occasions for questioning in relation to the deceased's death.  Mr. Lallion also stated that one of the policemen, Mr. Joseph, who was then Assistant Superintendent of Police, held him by his shirt, and the other policeman "Mason" gave him a "small punch" in his belly, and asked him, why did he kill the deceased.  Mr. Lallion maintained that he did not kill the deceased.

18.     The Petitioners contend that upon Mr. Lallion's denial that he was responsible for the deceased's death, Mr. Joseph, the Assistant Superintendent of Police Officer stated that he was going to help Mr. Lallion, and officer Mason who was present sent for some papers and began writing on it.  The Petitioners claim that Mr. Lallion was asked to sign the statement, and he was taken from the police station to the morgue where the deceased was laying, and was asked by a police officer to uncover the "plastic" over the deceased's body, Mr. Lallion complied with the policeman's order, and uncovered the deceased.  The Petitioners maintain that Mr. Lallion was returned to the police station where he was questioned again, intimidated by them, and subsequently was forced to sign a confession. The Petitioners contend that Mr. Lallion was detained from 4:15 p.m. on September 29, 1993 to 1:15 p.m. on October 2, 1993, in excess of the 48 hours established by the domestic law of Grenada.[3]

19.     The Petitioners indicate that Mr. Lallion appealed his conviction and sentence to the Eastern Caribbean Court of Appeal on December 19, 1994, which dismissed his appeal on September 15, 1995.

b.       Petitioners’ Position on Admissibility

20.     On September 27, 1999, the Commission at its 104^th Regular Session, found Mr. Lallion's case 11.765 admissible in Report Nº 124/99 pursuant to Article 46 of the American Convention.

c.       Mr. Lallion's claims on the merits - Articles 4, 5, 8 and 24 of the Convention The mandatory nature of the death penalty and the Prerogative of Mercy

(1)      The Mandatory Death Penalty

21.     The Petitioners argue that the State violated Mr. Lallion’s rights under Articles 4(1), 4(6), 5(1), 5(2), 5(6), 8 and 24 of the Convention by imposing a mandatory death sentence on Mr. Lallion upon his conviction for murder without the opportunity to present any evidence of mitigating circumstances pursuant to Section 234 of the Criminal Code of the 1958 Revised Laws of Grenada.

22.     The Petitioners referred to the legislative history of the death penalty in Grenada. The Petitioners state that until 1974, Grenada was a British Colony whose penal law consisted of the common law and local penal codes as developed in England and Wales, and that pursuant to the (British) Offences Against the Person Act of 1861, the penalty for murder was death. The Petitioners claim that in the United Kingdom, Section 7 of the Homicide Act 1957, restricted the death penalty to the offence of capital murder pursuant to Section 5, or murder committed on more than one occasion under Section 6. The Petitioners also indicate that Section 5 of the Homicide Act classified a capital murder as murder by shooting or explosion, murder done in the course or furtherance of theft, murder done for the purpose of resisting or preventing arrest or escaping from custody, and murders of police and prison officers acting in the execution of their duties.

23.     In addition, the Petitioners maintain that Section 2 of the Homicide Act contained provisions for reducing the offence of murder to one of manslaughter, when the murder was committed by a person, who at the time of the commission of crime, was suffering from such abnormality of mind so as to substantially impair his mental responsibility for the acts and admission in doing, or being a party to the killing (diminished responsibility).  The Petitioners indicate that Section 3 of the Homicide Act 1957 extended the common law defense of provocation whereby murder may be reduced to manslaughter where there is provocation by things done or said causing a person to loose his self control. In addition, the Petitioners report that the Homicide Act of 1957 was not applied in Grenada before Independence and that no provision has been made for non-capital murder or the defense of diminished responsibility.

24.     According to the Petitioners, Grenada became an independent State on February 7, 1974, when it adopted its Constitution. They also indicate that Chapter I of Grenada’s Constitution provides for the protection of fundamental rights and freedoms of the individual. Article 5 of Grenada’s Constitution in particular provides:

(1)     No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.

(2)     Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that the law in question authorizes the infliction of any description of punishment that was lawful in Grenada immediately before the coming into operation of this Constitution.

25.     In light of the terms of Article 5 of the Constitution, the Petitioners indicate that they accept that the sentence of death for murder does not violate the Constitution of Grenada, and that Article 5(2) of Grenada’s Constitution precludes the Courts of Grenada or the Privy Council from interpreting the right to freedom from inhuman or degrading punishment under the Constitution as prohibiting the administration of the death penalty in every case upon a conviction for murder.[4]  At the same time, the Petitioners argue that imposing a mandatory death sentence on Mr. Lallion, without providing him with an opportunity to present evidence of mitigating circumstances relating to his offense, violates Mr. Lallion's rights under Articles 4, 5, 8 and 24 of the American Convention.

26.     In support of their position, the Petitioners refer to the practice in other states. They argue, for example, that in the case of Woodson v. North Carolina[5] the United States Supreme Court held that the automatic imposition of the death sentence on all those convicted of a specific offence is inconsistent with "the evolving standards of decency that are the hallmark of a maturing society."  The Petitioners argue that the Supreme Court made it plain that the application of the mandatory death sentence imposed in all cases of murder without objective criteria for its application in particular cases after a fair hearing was unconstitutional.  In addition, the Petitioners indicate that the Supreme Court held further that:

[i]n capital cases the fundamental respect for humanity underlying the eight amendment … requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.[6]

27.     In addition, the Petitioners contend that the South African Constitutional Court has gone further and followed the Hungarian Constitutional Court in declaring the death penalty to be unconstitutional per se in Decision 23/1990(X.31). Conversely, in the case of Bachan Singh v. The State of  the Punjab, the Supreme Court of India determined that the death penalty is not unconstitutional per se,[7] in part because there was a judicial discretion as to whether it should be imposed. Based upon these domestic authorities, the Petitioners argue that states retaining the death penalty must distinguish between capital and non-capital murder, and must provide a proper sentencing procedure for considering whether the death penalty should be imposed in capital cases. 

28.     In this connection, the Petitioners make reference to a 1992 amendment to Jamaica's Offences Against the Person Act 1861, which distinguishes capital from non- capital murder. They contend that if Mr. Lallion was tried in the United Kingdom or Jamaica, he would have been tried on a charge of "non capital murder," as his offence was not a murder of such special or heinous character as to merit the death penalty. Finally, the Petitioners claim that the law of Belize has introduced judicial discretion in the application of the death penalty.

29.     The Petitioners argue that the American Convention is a living, breathing and developing instrument reflecting contemporary standards of morality, justice and decency and that it shares this quality with other international instruments such as the International Covenant on Civil and Political Rights (hereinafter the "ICCPR") and the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter the "European Convention").[8] The Petitioners indicate that they accept that Article 4 of the American Convention does not render the death penalty per se unlawful. They add, however, that according to commentators,[9] Article 4 of the Convention is more restrictive of the circumstances under which the death penalty can be imposed than the comparable provisions of the ICCPR and the European Convention. 

30.     According to the Petitioners, Article 4 of the Convention is expressly abolitionist in its direction and aspiration, and prescribes conditions for the implementation of the death penalty. For example, the death penalty cannot be applied to people below 18 years or over 70 years or for new offences. The Petitioners contend that two conditions in particular render the imposition of the mandatory death penalty in Mr. Lallion's case a violation of Article 4. First, it cannot be considered to have reserved the death penalty only for the "most serious offences," as required under Article 4(2). In addition, it fails to distinguish between different cases of murder or ensure like cases are treated alike, and consequently it is arbitrary and can give rise to unjust discrimination.

31.     More particularly, the Petitioners assert that the drafters of the American Convention, giving due consideration to the abolitionist tendencies of the Hispanic states and the restrictionist tendencies of the United States, intended the term "only for the most serious crimes" under Article 4(2) to go beyond mere legal label and to require some categorization or opportunity to make representations as to whether a particular allegation of murder merited death. Moreover, the Petitioners contend that the way in which the death penalty is administered in Grenada renders the deprivation of life arbitrary and contrary to Article 4(1) of the American Convention, and add that the fact that certain sentences of death are lawful under Article 4(2) of the American Convention does not mean that those sentences cannot be considered arbitrary under Article 4(1), or cruel, inhuman or degrading contrary to Article 5 of the American Convention.

32.     The Petitioners argue that similar conclusions can be reached with reference to Article 5 of the American Convention. According to the Petitioners, it has long been recognized by judicial authorities that the death penalty has features that prompt the description cruel and inhuman, but that this does not make it unlawfully carried out in conformity with a state’s international obligations.[10] At the same time, the Petitioners argue that the death penalty can be rendered illegal because of the manner in which it is imposed. In this regard, the Petitioners submit that certain factors pertaining to the manner in which Mr. Lallion's death sentence has been imposed can be considered to violate Article 5 of the Convention, and to render his execution unlawful under Article 4 of the Convention. These factors include the lapse of time since his death sentence was imposed, the conditions of Mr. Lallion's detention on death row, and the cruelty of sentencing people to death, when there has been a moratorium on application of the death sentence in Grenada for 20 years.

33.     In addition, the Petitioners argue that the mandatory death sentence imposed on Mr. Lallion violates Articles 8 and 24 of the Convention on the basis that Grenada’s Constitution does not permit Mr. Lallion to allege that his execution is unconstitutional as being inhuman or degrading or cruel and unusual, and does not afford Mr. Lallion the right to a hearing or a trial on the question of whether the death penalty should be either imposed or carried out. The Petitioners contend further that the State has violated Mr. Lallion's rights to equal protection of the law by imposing a mandatory death sentence without any judicial proceedings to establish whether the death penalty should be imposed or carried out in the circumstances of his case. 

34.     The Petitioners assert that the mandatory death sentence is an arbitrary and disproportionate punishment unless there is allowance for individual mitigation, and that even a short custodial sentence cannot be imposed without affording such an opportunity for mitigation to be presented before the judicial authority imposing sentence. According to the Petitioners, fair and objective criteria are necessary in determining the question of whether a convicted murderer should actually be executed, and that if all murderers are executed, the death penalty would be cruel because it did not allow for any discretion.  The Petitioners also argue that a law which is mandatory at the sentencing stage and involves unfettered personal discretion at the commutation stage infringes both principles identified by the United States Supreme Court, and further violates the principle of equality before the law. The Petitioners argue that in Grenada, not every person who is sentenced to death is executed and that the Prerogative of Mercy operates to commute a number of sentences. 

35.     Finally, the Petitioners suggest that the State should consider converting the moratorium on executions that has existed in Grenada since 1978 into legislative abolition. In this regard, the Petitioners indicate that they accept that the State has not abolished the death penalty in its laws and has not applied the death penalty since 1978.  The Petitioners argue that for the past twenty years people have been sentenced to death for murder and suffer all the terrors of expectation of a hanging that confinement to the death row cells in Richmond Prison brings, without any real intention of the authorities to effectuate this punishment. The Petitioners contend that they respect the humanitarian tendencies of the Government of Grenada that led to the moratorium in the first place, but suggest that the de facto moratorium should be turned into legislative abolition. The Petitioners assert that if the State abolishes the death penalty through legislation, Mr. Lallion's death sentence should be speedily commuted to life imprisonment, so that the agony of suspense relating to his possible execution does not hang over him for years.

(2)      The Prerogative of Mercy

36.     The Petitioners argue that insofar as the rigors of the mandatory death penalty are mitigated by the power of pardon and commutation exercised by the Advisory Committee on the Prerogative of Mercy, as prescribed under Articles 72, 73 and 74[11] of the Constitution of Grenada, there are no criteria for the exercise of such discretion, and no information as to whether such discretion is exercised on an accurate account of the admissible evidence as to the facts relating to the circumstances of the offence. They also claim that there is no right on the part of an offender to make either written or oral comments on the question of pardon, to see or comment on the report of the trial Judge which the Advisory Committee must consider under Article 74(1) of the Grenadian Constitution, or to comment on any reasons identified by the trial judge or others as to whether the death sentence should be carried out.

37.     The Petitioners indicate in this regard that in the case of Reckley v. Minister of Public Safety Nº 2,[12] the Privy Council specifically held that a condemned man has no right to make representations or attend a hearing before the Advisory Committee on the Prerogative of Mercy established pursuant to Articles 73 and 74 of Grenada’s Constitution. Rather, the Privy Council held that the power of pardon is personal to the responsible Minister and is not subject to judicial review, stating as follows:

The actual exercise by this designated Minister of his discretion in a death penalty case is different.  To concern with a regime, automatically applicable under the designated Minister, having consulted with the Advisory Committee, decides, in the exercise of his own personal discretion, whether to advise the Governor General that the law should or should not take its course.  Of its very nature, the Minister’s discretion, if exercised in favor of the condemned man, will involve a departure from the law.  Such a decision is taken as an act of mercy or as it used to be said as an act of grace.[13]

38.     The Petitioners also assert that the violation of Mr. Lallion's rights to equality before the law by reason of the mandatory death penalty is further aggravated by the fact that he has no right to be heard before the Advisory Committee on the Prerogative of Mercy, which itself is alleged to constitute a violation of Article 4(6) of the American Convention.  In this regard, the Petitioners argue that it may well be that poorer citizens of Grenada are less likely to receive commutation than wealthier citizens or other forms of discriminatory treatment which exist in the present arrangements, although they are unaware of any empirical studies on this issue as it pertains to Grenada.  The Petitioners referred to decisions of the United States Supreme Court and the South African Constitutional Court, in which they claim that a tendency of discrimination in the application of the Prerogative of Mercy has been identified. Moreover, the Petitioners contend that it must be for the party seeking to deprive Mr. Lallion of the right to his life to establish the absence of inequality and discrimination in the operation of its penal law.

d.       Article 5 - Conditions of Detention

          39.     The Petitioners claim that the State has violated Mr. Lallion's rights under Article 5(1) and 5(2) of the Convention because he is being detained in inhumane conditions of detention. According to the Petitioners, since Mr. Lallion's incarceration in Richmond Hill Prison, he has been detained in conditions that have been condemned by international human rights organizations as being in violation of internationally recognized standards.  The Petitioners argue that non-governmental organizations have concluded that the State is in breach of a number of international instruments designed to give those detained a minimum level of protection, because of inadequate accommodations, sanitation, diet and health care. In support of their allegations, the Petitioners also submitted a notarized Affidavit from Mr. Lallion, which describes his treatment and conditions of  confinement since his arrest and subsequent convictions for murder.

40.     The Petitioners have also relied upon information regarding prison conditions in the Caribbean generally. In this connection, the Petitioners claim that all death row prisoners in Grenada are confined in Richmond Hill Prison, which was built in the 19^th Century. They also claim that Richmond Hill Prison was designed to hold 130 prisoners, but that as of October 1996, the prison had a population of 330 prisoners. Further, the Petitioners refer to numerous reports prepared by the non-governmental organization, "Caribbean Rights."  For example, in its 1990 report "Deprived of their Liberty," Caribbean Rights made the following observations about prison conditions in the Caribbean generally, including Grenada:

In most of the Caribbean prisons visited, prisoners had to use a bucket in front of others and were locked in with the bucket for many hours, often for 15 or 16 hours a day.  This was the case in the men’s prison in St. Vincent, Grenada, Trinidad and South Camp Rehabilitation Centre and St. Catherine District Prison in Jamaica.[14]

In both St. Vincent and Grenada the men’s prison uniform was a blue top and shorts, decent but not very conducive to dignity.

In Grenada, there were no separate punishment cells.  Prisoners on punishment were put in the special security blocks.  Corporal punishment was not available, but punishment were of two types of restricted diet and loss of remission up to 90 days, though it was reported that it was rare for a prisoner to lose that much remission.  There is no appeal machinery against the imposition of punishment.[15] 

41.     Caribbean Rights' 1990 Report also indicated that in 1990, there were approximately 20 prisoners under sentence of death in Grenada, and described conditions on death row in Grenada as follows:

The prisoners under sentence of death were kept in special security blocks attended by prison officers wearing a different uniform from the prison officers in the rest of the prison, a green combat-type uniform.  There were three such blocks, each with a corridor down the middle and 8 to 10 cells on each  side of the door.  The cell doors are solid with a rectangular aperture at eye level.  The prisoners in the blocks wore the same clothes as the other prisoners, that is a blue shirt and blue shorts.  Upon the arrival of the visiting party, the prison officers in the special security blocks opened the outer door, salute to the senior officer present and recited a military style statement about the numbers locked up and everything being in order.  Then the officer walked down the row shouting the name of each prisoner as he passed.  The prisoner then stood to attention in the middle of the cell, hands behind his back and replied, "Sir." … The prisoners in the special security blocks are reported to get one hour of exercise a day if possible, sometimes more.[16]

42.     Based in part upon these observations, Caribbean Rights reached several conclusions and made several recommendations in respect of the conditions of detention of condemned prisoners in the Caribbean, including the following:

The treatment of death row prisoners exacerbates a punishment that is already completely unacceptable.  The exceptional inhumanity of the physical conditions as reported in Guyana and Trinidad and seen in St. Vincent and Grenada, constitute an intolerable imposition of cruelty.  It is understandable that high security must be imposed and some surveillance is necessary.  But keeping death sentenced prisoners, sometimes for years, in conditions equivalent to or worse than those of punishment cells, intolerable.[17]

The holding of prisoners sentenced to death in the conditions currently obtaining in the special security blocks in Grenada is inappropriate and should cease forthwith.

That subjecting prisoners under sentence of death to living with the lights on for 24 hours a day should cease forthwith.

That restricting the programme of activities of prisoners awaiting sentence of death to one hour of exercise a day, should cease forthwith.

That prisoners under sentence of death should be entitled to substantial amounts of visiting time with their families.

43.     Similarly, in a December 1991 Report entitled “Improving Prison Conditions in the Caribbean," Caribbean Rights noted several concerns raised by Vivien Stern, the Secretary General of Penal Reform International, regarding the visitation rights of prisoners and their ability to send and receive letters:

In Grenada, the official visiting allowance is 15 minutes a month for convicted prisoners.  It is 15 minutes a week for unconvicted prisoners.  Normal civilized contact was impossible. The visit took place through grilles with a gap between the two grilles of about 18 inches, through which the visitor and the prisoner had to communicate.  Probably the best they can do in these circumstances is to shout at each other.  Writing letters is another way of keeping contact.  Here too there were severe restrictions.  In Grenada, prisoners can write and receive one letter a month.  All ingoing and outgoing mail was read by censors, even for the most minor offenders.[18]

44.     In addition, in support of their contention that Mr. Lallion's conditions of detention violate Article 5(1) and 5(2) of the Convention, the Petitioners refer to several decisions of the U.N. Human Rights Committee (hereinafter "HRC"), in which the HRC determined that conditions of detention violated Articles 7[19] and 10(1)[20] of the International Covenant on Civil and Political Rights (ICCPR). These cases include Antonaccio v. Uruguay, [21] in which the HRC held that detention in solitary confinement for three months and denial of medical treatment constituted a violation of the Covenant, and De Voituret v. Uruguay,[22] in which the HRC held that solitary confinement for three months in a cell with almost no natural light violated the applicant’s rights under the Covenant. The Petitioners also rely upon the decision of Mukong v. Cameroon,[23] in which the HRC suggested that conditions of detention which do not meet the United Nations Standard Minimum Rules for the Treatment of Prisoners violate Articles 7 and 10(1) of the ICCPR, and that minimum standards of humane treatment of prisoners apply regardless of a state's level of development:

As to the conditions of detention in general, the Committee observes that certain minimum standards regarding the conditions of detention must be observed regardless of the State party’s level of development [i.e. the UN Standard Minimum Rules for the Treatment of Prisoners]. It should be noted that these are minimum requirements, which the committee consider should always be observed, even if economic or budgetary conditions may make compliance with these obligations difficult.[24]

45.     The Petitioners similarly argue that the European Court's jurisprudence in respect of Article 3[25] of the European Convention supports their contention that Mr. Lallion's conditions of detention violate his right under Article 5 of the American Convention. In particular, the Petitioners rely upon the Greek Case,[26] in which the Court found conditions of detention amounting to inhumane treatment to include overcrowding, poor hygiene and sleeping arrangements, and inadequate recreation and contact with the outside world. Likewise, in the Cyprus v. Turkey,[27] the Court found that conditions in which food, water, and medical treatment were withheld from detainees constituted inhuman treatment. The Petitioners also argue that these cases recognized that a failure to provide adequate medical care may constitute inhuman treatment, even in the absence of any other ill treatment.

46.     Further, the Petitioners argue that the conditions under which Mr. Lallion is detained at Richmond Hill Prison constitute violations of the United Nations Standard Minimum Rules for the Treatment of Prisoners, namely, Rules 10, 11A, 11B, 12, 13, 15, 19, 22(1), 22(2), 22(3), 24, 25(1), 25(2), 26(1), 26 (2), 35(1), 36(1), 36(2), 36(3), 36(4), 57, 71(2) 72(3) and 77.

47.     With respect to Article 4 of the Convention, the Petitioners argue that Mr. Lallion is being detained in inhuman and degrading conditions which renders the carrying out of his death sentence unlawful, and that to carry out his execution in such circumstances would constitute a violation of his rights under Articles 4 and 5 of the American Convention. In support of their position, the Petitioners refer to the case of Pratt and Morgan –v- The Attorney General of Jamaica,[28] in which the Privy Council held that prolonged detention under sentence of death would violate the right under the Constitution of Jamaica not to be subjected to inhuman and degrading treatment. The Petitioners argue similarly that the lawfulness of Mr. Lallion's execution cannot be considered in isolation from the detention which preceded it, and that his conditions of detention should be considered to render his execution unlawful in the same manner as prolonged detention on death row.

e.       Article 8 - Unavailability of Legal Aid for Constitutional Motions

48.     The Petitioners claim that the State has violated Mr. Lallion's rights under Article 8 of the Convention, because legal aid is not available to enable him to pursue a Constitutional Motion in the domestic courts in Grenada. The Petitioners maintain that Mr. Lallion is indigent and therefore lack the private resources to bring a Constitutional Motion to challenge violations of his Constitutional rights. The Petitioners also contend that there are a dearth of Grenadian lawyers who are willing to represent Mr. Lallion on a pro bono basis.  The Petitioners therefore claim that the failure of the State to provide Legal Aid for Mr. Lallion to pursue a Constitutional Motion denies Mr. Lallion of the right to an effective remedy, which includes access to the Courts in fact as well as in law. In support of this contention, the Petitioners rely upon the decisions of the European Court of Human Rights in the cases of Golder v. UK,[29] and Airey v. Ireland,[30] in which the European Court held that Article 6 of the European Convention[31] imposed positive obligations on the States concerned to provide legal aid in the interests of justice.

49.     The Petitioners argue that a similar interpretation of Article 8 of the American Convention is appropriate. In particular, they argue that a Constitutional Motion in the circumstances of Mr. Lallion's case should be considered criminal proceedings for the purposes of Article 8(2) of the Convention, because it arises from earlier criminal proceedings, and might serve to quash his capital sentence. Consequently, the Petitioners argue that Article 8(2) of the Convention compels the State to provide legal aid to Mr. Lallion to pursue a Constitutional Motion relating to the criminal proceedings against him. The Petitioners also argue that the fact that Mr. Lallion will be executed if his Constitutional challenge fails, also weighs in favor of this interpretation.

f.       Article 7 - The right to personal Liberty and to be brought promptly before a Judge

50.     In addition, in respect of Mr. Lallion, the Petitioners allege violations of Articles 7(2), 7(4) and 7(5) of the Convention, because they maintain that Mr. Lallion was detained in police custody for over 48 hours and was not promptly notified of the charges against him or brought promptly before a judge or other judicial officer. The Petitioners contend that upon Mr. Lallion's denial that he was not responsible for the deceased's death, Mr. Joseph, the Assistant Superintendent of Police Officer stated that he was going to help Mr. Lallion, and officer Mason sent for some papers and began writing on it.  The Petitioners claim that Mr. Lallion was asked to sign the statement, and he was then taken to the morgue where the deceased was laying, and was asked by a police officer to uncover the "plastic" over the deceased's body, Mr. Lallion complied with the policeman's order, and uncovered the deceased.  The Petitioners maintain that Mr. Lallion was returned to the police station where he was questioned again, intimidated by them, and subsequently was forced to sign a confession. The Petitioners contend that Mr. Lallion was detained from 4:15 p.m. on September 29, 1993 to 1:15 p.m. on October 2, 1993, in excess of the 48 hours established by the domestic law of Grenada.[32]

B.       Position of the State

51.     The State replied to Mr. Lallion's petition on February 3, 1998, and stated the following:

The applicant Paul Lallion, filed a petition with the Inter-American Commission on Human Rights claiming to be a victim of Articles 4(1); 4(6); 5(1); 5(2); 5(6), 8 and 24 of the American Convention on Human Rights.

The applicant further complains that the mandatory sentence of death imposed by the penal law of Grenada on every person convicted of a crime of murder violates the right to life (Article 1 of the Declaration and Article 4(1) of the Convention) in the light of the facts of his case, involves the infliction of cruel, inhuman or degrading punishment or treatment (Article XXVI of the Declaration and Article 5 of the Convention).

In Grenada the sentence of death is the mandatory sentence for murder under Section 230 of the Criminal Code Cap. 1 which has not been amended in any respect material to the issue under consideration since its enactment.  The manner of execution of sentence authorized by law is by hanging and the passing of the sentence also provides lawful authority for the detention of the condemned man in prison until such time as the sentence is executed.  The continuing constitutional validity of the death sentence is put beyond all doubt by Section 2(1) which reads:

No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence under the law of Grenada of which he has been convicted.  

In a recent case in Botswana, the Court of Appeal of that country in the case of the State v. Ntesang judgment which was delivered on 30^th January 1995, stated that the Court must give effect to all the words of S. 4(1) including the exception which allows deprivation of life in execution of a sentence of that country's Constitution.  Sec. 4(1) is similar in wording and intention as Sec. 2(1) of the Grenada Constitution.

Similarly Sect. 5(2) of the Grenada Constitution like Sec. 7(1) of the Botswana Constitution created an exception to the prohibition on inhuman or degrading punishment for any punishment, which was lawful immediately before the Constitution, came into operation.  The death penalty by hanging is such a punishment and in the absence of compelling reasons, one constitutional provision cannot be refused as being contradictory and opposed to another.

I admit that the Court should not close its ears and eyes to happenings in other parts of the world and among the international community to which it belongs but the Court must also keep within the role assigned to it as a purely adjudicatory and not legislative body under the Constitution.

I also agree that condemned prisoners on death row should not, in principle, be subjected to a prolonged period of imprisonment as they undoubtedly suffer a certain level of anguish and mental agony whilst awaiting execution.  Such anguish is however, an inevitable consequence of their detention and does not amount to an independent infringement of their constitutional rights.

Further all domestic legal remedies and procedures have been exhausted and the sentence of the Court would have to be executed, as there have been no undue and unconscionable delay in the execution of the applicant.

IV.      ANALYSIS

A.      Competence of the Commission

52.     The Convention entered into force for the State of Grenada on July 18, 1978 upon deposit of its instrument of Ratification. The Petitioners allege violations of Articles 4, 5, 7, 8 and 24 of the Convention with respect to acts or omissions which transpired in Grenada after the Convention came into effect for Grenada. In addition, the petition in this case was lodged by the Petitioners, Solicitors from London, United Kingdom, on behalf of Mr. Lallion, a  national of the State of Grenada. Consequently, the Commission has jurisdiction ratione temporis, ratione materiae, and ratione personae to consider the claims in this case.

53.     On September 27, 1999, the Commission at its 104^th  Regular Session, found Mr. Lallion's case Nº 11.765, admissible in Report Nº 124/99 pursuant to Section 46 of the American Convention.

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