...continued

B.      The Merits of the Petition

1.        Standard of Review

54.     In response to the various standards that the parties have suggested should guide the Commission in determining the issues before it, the Commission wishes to clarify that it will undertake its review of the merits of the Petitioners' claims in accordance with the Commission's heightened scrutiny test. According to this standard of review, the Commission will subject the parties' allegations to an enhanced level of scrutiny in order to ensure that any deprivation of life effected by a State Party pursuant to a death sentence complies strictly with the provisions of the Convention, including in particular Articles 4, 5, 7, and 8 of the Convention.[33] This heightened scrutiny test is, as the Commission has previously recognized, is consistent with the restrictive approach to the death penalty provisions of human rights treaties taken by the Commission and other international authorities.[34] The heightened scrutiny test is also not precluded by the Commission's fourth instance formula, according to which the Commission in principle will not review the judgments issued by the domestic courts acting within their competence and with due judicial guarantees, unless a petitioner’s allegations entail a possible violation of any of the rights set forth in the Convention.[35] The Commission will therefore apply the heightened scrutiny standard in determining the complaint in the present case.

2.       Articles 4, 5, and 8 of the Convention

Mandatory Nature of the Death Penalty

(a)      Mr. Lallion has been Sentenced to a Mandatory Death Penalty

55.     As detailed previously, the Petitioners allege: (i) violations of Articles 4, 5, 8, and 24 of the Convention, relating to the mandatory nature of the death penalty and the procedure for granting amnesty, pardon or commutation of sentence in Grenada; (ii) violations of Article 5 of the Convention pertaining to Mr. Lallion's conditions of detention; and (iii) violations of Article 8 of the Convention, relating to the unavailability of legal aid for Constitutional Motions in Grenada.

56.     Mr. Lallion was convicted of murder pursuant to Section 234 of the Criminal Code of Grenada, which provides that "[w]hoever commits murder shall be liable to suffer death and sentenced to death."[36] The crime of murder in Grenada can therefore be regarded as subject to a "mandatory death penalty," namely a death sentence that the law compels  the sentencing authority to impose based solely upon the category of crime for which the defendant is found responsible. Once a defendant is found guilty of the crime of murder, the death penalty must be imposed. Accordingly, mitigating circumstances cannot be taken into account by a court in imposing the death sentence and therefore once the jury found Mr. Lallion guilty of capital murder, the death penalty was the only available punishment.  The State has not denied the mandatory nature of Mr. Lallion's death sentence.  In Mr. Lallion's case, the State indicated in its Reply to the petition by confirming that the sentence of death is mandatory in Grenada and states the following:

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.  

          57.     Therefore, as the Commission has determined in previous cases,[37] that the crimes of capital murder in Grenada can be regarded as being subject to a "mandatory death penalty" namely a death sentence that the law compels the sentencing authority to impose based solely upon the category of crime for which the defendant is found responsible. Once a defendant is found guilty of the crime of capital murder, the death penalty must be imposed. Accordingly, mitigating circumstances cannot be taken into account by a court in sentencing an individual to death once a conviction for capital murder has been rendered.

58.     As indicated in Part III of this Report, Mr. Lallion has alleged that the State violated his rights pursuant to Articles 4(1), 4(2), 4(6), 5(1), 5(2), 8 and 24 of the American Convention, because he was sentenced to a mandatory death penalty for the crime of murder. Mr. Lallion also argued that the process for granting amnesty, pardon or commutation of sentence in Grenada does not provide an adequate opportunity for considering individual circumstances, and in itself violates Article 4(6) of the Convention.

(b)      Mr. Lallion's Mandatory Death Penalty, Articles 4, 5, and 8 of the American Convention

59.     In previous cases[38] involving the application of capital punishment under Section 234 of the Criminal Code of Grenada, The Commission has evaluated the mandatory nature of the death penalty under that legislation in light of Article 4 (right to life),[39] Article 5 (right to humane treatment)[40] and Article 8 (right to a fair trial)[41] 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.[42] Based upon these considerations and analysis, the Commission has reached the following conclusions.

60.     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.[43]

61.     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.[44]

62.     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.[45]

63.     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 Grenada and Jamaica have done in respect of the 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.[46] The Commission observes in this regard that a majority at 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.[47]

64.     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.[48]

65.     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.[49] 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.  

66.     Applying these findings in the context of the cases presently before it, the Commission has confirmed that Mr. Lallion was convicted of capital murder pursuant to Section 234 of the Criminal Code of Grenada and that no provisions in the Code 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.

67.     In Mr. Lallion's case, the Court could not consider the mitigating factors of his case nor the nature of the offense, upon his conviction for murder and prior to sentencing him to death. The Trial Court could not take into account the fact that he was questioned in excess of the 48 hours and not brought promptly before the Court as provided by the law of Grenada. 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, and during that illegal detention Mr. Joseph, the former Assistant Superintendent of Police held him by his shirt and the other policeman, "Mason" gave him a "small punch" in his belly, and he was forced to sign a confession.[50] In addition, the police officers ordered Mr. Lallion to remove the plastic covering from the deceased's body, where he was laying in the morgue. At the conclusion of his trial, and upon satisfying the elements of Section 234 of the Code, Mr. Lallion was convicted of murder. The Trial Court had no discretion in passing sentence on him because death is the automatic penalty under the law of Grenada.

68.     Consequently, the Commission concludes that once Mr. Lallion was found guilty of capital murder, the law in Grenada 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. Lallion's character or record, the nature or gravity of his crime, or the subjective factors that may have motivated his conduct, in determining whether the death penalty was an appropriate punishment. Mr. Lallion 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. Lallion to a mandatory death sentence based solely upon the category of crime for which he had been found responsible.

69.     In this context, and in light of the Commission's prior analysis of the mandatory death penalty under the Convention, the Commission concludes that the State violated Mr. Lallion's 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.

70.     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 on Mr. Lallion, without any discretion to consider his personal characteristics and the particular circumstances of his offense to determine whether death was an appropriate punishment. Mr. Lallion 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. Lallion 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. Lallion's execution and death at the hands of the State is imminent, his conviction having been upheld on appeal to the highest court in Grenada. The Commission therefore concludes that the State has by this conduct violated Mr. Lallion's right under Article 4(1) of the Convention not to be arbitrarily deprived of his life, and therefore, Mr. Lallion's death sentence is unlawful.[51]

71.     The Commission further concludes that the State, by sentencing Mr. Lallion to a mandatory death penalty absent consideration of his individual circumstances, has failed to respect Mr. Lallion's right to his 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. Lallion solely because he was convicted of a predetermined category of crime. Accordingly, the process to which Mr. Lallion has been subjected would deprive him of his most fundamental rights, his right to life, without considering the personal circumstances and the particular circumstances of his offenses. Not only does this treatment fail to recognize and respect Mr. Lallion's 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. Lallion.[52]

72.     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 Mr. Lallion to a mandatory death sentence. By denying Mr. Lallion an opportunity to make representations and present evidence to the trial judge as to whether his conviction warranted the ultimate penalty of death, under the terms of Article 4 of the Convention or otherwise, the State also denied Mr. Lallion his right to fully answer and defend the criminal accusations against him, contrary to Article 8(1) of the Convention.[53]

73.     It follows from the Commission’s findings that, should the State execute Mr. Lallion 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 Grenada

74.     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."

75.     The Petitioners in the present case have also contended that the process for granting amnesty, pardon or commutation of sentence in Grenada 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 right effective. In this connection, the authority of the Executive in Grenada  to exercise its Prerogative of Mercy is prescribed

in Sections 72, 73 and 74 of the Constitution of Grenada, which provide as follows:

72(1) The Governor-General may, in Her Majesty’s name and on Her Majesty’s behalf.-

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

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

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

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

(2) The powers of the Governor-General under subsection (1) of this section shall be exercised by him in accordance with the advice of such Minister as may for the time being be designated by the Governor-General, acting in accordance with the advice of the Prime Minister.

73 (1) There shall be an Advisory Committee on the Prerogative of Mercy which shall consist of –

(a)    Minister for the time being designated under Section 72(2) of this Constitution who shall be the Chairman;

(b)    the Attorney General;

(c)    the chief medical officer of the Government of Grenada; and

(d)    three other members appointed by the Governor-General, by instrument in writing under his hand.

(2)    A member of the Committee appointed under subsection (1)(d) of this section shall hold his seat thereon for such period as may be specified in the instrument by which he was appointed:

Provided that his seat shall become vacant

(a)    in the case of a person who, at the date of his appointment was a Minister, if he ceases to be a Minister; or

(b)   if the Governor-General by instrument in writing under his hand, so directs.

(3)    The Committee may act notwithstanding any vacancy in its membership or absence of any member and its proceedings shall not to be invalidated by the presence or participation of any person not entitled to be present at or to participate in those proceedings.

(4)    The Committee may regulate its own procedure.

(5)    In the exercise of his functions under this section, the Governor-General shall act in accordance with the advice of the Prime Minister.

74(1) Where any person has been sentenced to death (otherwise than by a court-martial) for an offence, the Minister for the time being designated under section 72(2) of this Constitution shall cause a written report of the case from the trial judge (or, if a report cannot be obtained from the judge, a report on the case from the Chief Justice), together with such other information derived from the record of the case or elsewhere as he may require, to be taken into consideration at a meeting of the Advisory Committee on the Prerogative of Mercy; and after obtaining the advice of the Committee he shall decide in his own deliberate judgment whether to advise the Governor-General to exercise any of his powers under section 72(1) of this Constitution.

(2)    The Minister for the time being designated under section 72(2) of this Constitution may consult with the Advisory Committee on the Prerogative of Mercy before tendering advice to the Governor-General under section 72(1) of this Constitution in any case not falling within subsection (1) of this section but he shall not be obliged to act in accordance with the recommendation of the Committee.

76.     In addressing this issue, the Commission first observes that in the cases of Rudolph Baptiste and Donnason Knights, the Commission determined that the process for exercising the Prerogative of Mercy under Sections 72, 73, and 74 of the Grenadian Constitution did not guarantee the condemned prisoners in those cases an effective or adequate opportunity to participate in the mercy process, as required under Article 4(6) of the Convention.[54]

77.     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.[55] 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. [56]

78.     In making this determination in the cases of Rudolph Baptise, Donnason Knights, McKenzie et al., the information before the Commission indicated that neither the legislation nor the courts in Grenada and 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 those cases 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.

79.     Since adopting its report in the cases of Rudolph Baptise and Donnason Knights and McKenzie et al., the Commission has received information that in a September 12, 2000 judgment in the case of 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.[57] 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.[58]

80.     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. Lallion. Accordingly, based upon the information available, the Commission finds that the procedure available to Mr. Lallion to seek amnesty, pardon or commutation of sentence has not guaranteed him an effective or adequate opportunity to participate in the mercy process.

81.     The Commission also concludes that the State has violated Mr. Lallion's  right pursuant to Article 4(6) of the American Convention by failing to guarantee him an effective right to apply for amnesty, pardon or commutation of sentence, to make representations, in person or by counsel, to the Advisory Committee on the Prerogative of Mercy, and to receive a decision from the Advisory Committee within a reasonable time prior to his execution.

82.     Given its foregoing conclusions as to the legality of Mr. Lallion's death sentence under Articles 4, 5  and 8 of the Convention, the Commission does not consider it necessary to determine whether sentencing Mr. Lallion to a mandatory death penalty violated his rights to equal protection of the law contrary to Article 24 of the Convention.

4.       Articles 4 and 5 – Conditions of Detention

83.     The Petitioners allege that the State has violated Mr. Lallion's rights to have his physical, mental and moral integrity respected, as well as his right not to be subjected to cruel, unusual or degrading punishment or treatment pursuant to Article 5(1) and 5(2) of the American Convention, because of the conditions of detention to which he has been subjected. They argue further that these conditions render Mr. Lallion's execution unlawful under Article 4 of the Convention.

84.     In support of their allegations, the Petitioners provided the Commission with Mr. Lallion's Affidavit detailing the conditions under which he has been detained on death row in Richmond Hill Prison, Grenada, upon his conviction for murder,[59] and submit the following:

I am presently incarcerated on death row which consist of a number of cells each containing one inmate.  The cells on death row are situated underneath the main prison building in an area called "Jonestown" (named after the Jonestown Massacre in Guyana in South America some years ago).

My cell is approximately 9 feet by 6 feet  (9ft. x 6ft.) and I spend approximately 23 hours a day in my cell alone.  I am provided with a bed and mattress to sleep on, but there is no other furniture in my cell.  I am provided with a bucket which I use as a toilet.  I am permitted to slop out the contents of the bucket once a day. Once it has been used, I am forced to endure the smell and unhygienic conditions until I am able to empty it.

The lighting in my cell is insufficient.  The cell has no windows and no natural lighting, and accordingly has no ventilation.  Any lighting in my cell is provided by a single bulb situated in the corridor in front of my cell.

I am provided with three meals a day.  Sometimes food is brought to me in my cell where I am made to eat alone.  The food is generally of a poor quality.  I am provided with drinking water.

I am allowed one hour of exercise per day. There are no exercise facilities and my hour is usually spent standing in the yard.

I am allowed one visitor per month for a period of 15 minutes.  I am allowed to write and receive one letter a month.

As a prisoner on death row, I am not permitted access to the prison services.  I am not allowed to use the prison library, nor am I allowed access to the chaplain and religious services.

I receive inadequate medical care.  Visits by the doctor are not regular and it is not always clear whether I will be able to see a doctor when necessary.

There are no adequate complaints mechanism or procedure for dealing with any complaints I may have.

85.     As described in Part III of this Report, the Petitioners also rely upon general sources of information regarding prison conditions in Grenada and other Caribbean countries. These include reports prepared in 1990 and 1991 by the non-governmental organization "Caribbean Rights."  While somewhat outdated, the Reports tend to support Mr. Lallion's allegations in respect of the conditions in which he has been incarcerated since his arrest.

86.     The Commission considers that the Petitioners' allegations should be evaluated in light of minimum standards articulated by international authorities for the treatment of prisoners, including those prescribed by the United Nations. More particularly, Rules 10, 11A, 11B, 12, 13,15, 19, 21,  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), 40, 41, 57, 71(2), 72(3), and 77 of the United Nations Standard Minimum Rules for the Treatment of Prisoners[60] (UN Minimum Rules) provide for minimum basic standards in respect of accommodation, hygiene, exercise,  medical treatment, religious services and library facilities for prisoners, as follows:

10.     All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic 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 prisoners to read or work by natural light, and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation;

(b)     Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight.

12.       The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner.

15.       Prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness.

21.       (1)    Every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits.

(2)      Young prisoners, and others of suitable age and physique, shall receive physical and recreational training during the period of exercise. To this end space, installations and equipment should be provided.

24.     The medical officer shall see and examine every prisoner as soon as possible after his admission and thereafter as necessary, with a view particularly to the discovery of physical and mental illness and the taking of all necessary measures; the segregation of prisoners suspected of infectious or contagious conditions; the noting of physical or mental defects which might hamper rehabilitation, and the determination of the physical capacity of every prisoner for work.

26.       (1)    The medical officer shall have the care of the physical and mental health of the prisoners and should see daily all sick prisoners, all who complain of illness, and any prisoner to whom his attention is specially directed.

(2)      The medical officer shall report to the director whenever he considers that a prisoner’s physical or mental health has been or will be injuriously affected by continued imprisonment or by any condition of imprisonment.

40.     Every institution shall have a library for the use of all categories of prisoners, adequately stocked with both recreational and instructional books, and prisoners shall be encouraged to make full use of it.

41.       (1)    If the institution contains a sufficient number of prisoners of the same religion, a qualified representative of that religion shall be appointed or approved.  If the number of prisoners justifies it and conditions permit, the arrangement should be on a full-time basis.

            (2)    A qualified representative appointed or approved under paragraph (1) shall be allowed to hold regular services and to pay pastoral visits in private to prisoners of his religion at proper times.

(3)     Access to a qualified representative of any religion shall not be refused to any prisoner.  On the other hand, if any prisoner should object to a visit of any religious representative, his attitude shall be fully respected.

42.       So far as practicable, every prisoner shall be allowed to satisfy the needs of his religious life by attending the services provided in the institution and having in his possession the books of religious observance and instruction of his denomination.

87.     It is evident that based upon the Petitioners' allegations that the State has failed to meet these minimum standards of proper treatment for Mr. Lallion. The cumulative impact of such conditions, together with the length of time for which Mr. Lallion 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.[61] Based upon the information provided by the Petitioners the conditions of detention to which he has been subjected fail to meet several of these minimum standards of treatment of prisoners, in such areas as hygiene, exercise and medical care.

88.     For example, Mr. Lallion claims that the cell has no windows, no natural lighting, and no ventilation, and that the lighting in his cell is insufficient. They claim that he is provided with a bucket to use as a toilet, and that he is only entitled to empty the bucket once a day and is therefore forced to ensure unpleasant smells and unhygienic conditions once the bucket is used. Mr. Lallion asserts that he is not allowed to use the prison library, nor is he allowed access to the chaplain or religious services. Further, Mr. Lallion states that he receives inadequate medical care, because visits from the doctor are not regular and it is not clear whether he will be able to see a doctor when necessary. Finally, Mr. Lallion contends that there are no adequate mechanisms or procedures in the prison for dealing with his complaints.

89.     The State did not specifically reply to Mr. Lallion's petition with respect to prison conditions in Grenada, generally, or as they pertain to Mr. Lallion. The State in the penultimate paragraph in its Reply to Mr. Lallion's petition, addressed the issue of prolonged detention on death row, and stated the following: "I also agree that condemned prisoners on death row should no[t], 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." 

90.     Consequently, the Commission finds that the conditions of detention to which Mr. Lallion has been subjected fail to respect his physical, mental and moral integrity as required under Article 5(1) of the Convention. The Commission therefore finds that the State is responsible for violating  this provision of the Convention in respect of Mr. Lallion in conjunction with the State‘s obligations under Article 1(1) of the Convention.

5.       Articles 8 and 25 – Unavailability of Legal Aid for Constitutional Motions

91.     The Petitioners argue that legal aid is not effectively available for Constitutional Motions before the courts in Grenada, and that this constitutes a violation of Mr. Lallion's right to a fair trial under Article 8 of the Convention.  Although the Petitioners have not specifically referred to Article 25 of the American Convention, the right to an effective remedy, the Commission considers that their allegations relating to the denial of an effective remedy at law also encompass Article 25 of the Convention. Therefore, the Commission has also analyzed their claim relating to the unavailability of legal aid for Constitutional Motions under Article 25 of the Convention, in conformity with Article 28(f) of the Commission’s Rules of Procedure.[62]

92.     The Petitioners contend that the failure of the State to provide legal aid denies Mr. Lallion access to the Court in fact as well as in law. The Petitioners argue that to bring a Constitutional Motion before the domestic courts often involve sophisticated and complex questions of law that require the assistance of Counsel. In addition, the Petitioners claim that Mr. Lallion is indigent, and that legal aid is effectively not available to him to pursue a Constitutional Motion in the courts in Grenada. The Petitioners also contend that there is a dearth of Grenadian lawyers who are prepared to represent Mr. Lallion pro bono.

93.     Based upon the material before it, the Commission is satisfied that a Constitutional Motion dealing with legal issues of the nature raised by Mr. Lallion in his petition, such as the right to due process and the adequacy of his prison conditions, are procedurally and substantively complex and cannot be effectively raised or presented by a prisoner in the absence of legal representation. The Commission has also found in previous cases from Grenada, Rudolph Baptiste[63] and Donnason Knights[64] that the State does not provide legal aid to individuals in Grenada to bring Constitutional Motions, and that Mr. Lallion is indigent and is therefore not otherwise able to secure legal representation to pursue a Constitutional Motion.

94.     The Commission considers that in the circumstances of Mr. Lallion's case, the State's obligations regarding legal assistance for him to pursue a Constitutional Motion flows from both Article 8 and Article 25 of the Convention. In particular, the determination of rights through a Constitutional Motion in the High Court must conform with the requirements of a fair hearing in accordance with Article 8(1) of the Convention. In the circumstances of Mr. Lallion's case, the High Court of Grenada would be called upon to determine whether Mr. Lallion's conviction in a criminal trial violated his rights under the Grenada’s Constitution. In such a case, the application of a requirement of a fair hearing in the High Court should be consistent with the principles in Article 8(2) of the Convention.[65] Accordingly, when a convicted person seeking Constitutional review of the irregularities in a criminal trial lacks the means to retain legal assistance to pursue a Constitutional Motion and where the interests of justice so require, legal assistance should be provided by the State.

95.     Due to the unavailability of legal aid, Mr. Lallion has effectively been denied the opportunity to challenge the circumstances of his conviction under Grenada’s Constitution in a fair hearing. This in turn constitutes a violation of his right under Article 8(1) of the American Convention.[66]   

96.     Moreover, Article 25 of the Convention provides individuals with the right to simple and prompt recourse to a competent court or tribunal for protection against acts that violate their fundamental rights recognized by the Constitution or laws of the state concerned or by the Convention. The Commission has stated that the right to recourse under section 25 when read together with the obligation in Article 1(1) and the provisions of Article 8(1), "must be understood as the right of every individual to go to a tribunal when any of his rights have been violated (whether a right protected by the Convention, the Constitution, or the domestic laws of the State concerned), to obtain a judicial investigation conducted by a competent, impartial and independent tribunal that will establish whether or not a violation has taken place and will set, when appropriate, adequate compensation."[67]

97.     In addition, the Inter-American Court has held that if legal services are required either as a matter of law or fact in order for a right guaranteed by the Convention to be recognized and a person is unable to obtain such services because of his indigence, then that person is exempted from the requirement under the Convention to exhaust domestic remedies.[68] While the Court rendered this finding in the context of the admissibility provisions of the Convention, the Commission considers that the Court's comments are also illuminating in the context of Article 25 of the Convention in the circumstances of the present case.

98.     By failing to make legal aid available to Mr. Lallion to pursue a Constitutional Motion in relation to his criminal proceedings, the State has effectively barred recourse for Mr. Lallion to a competent court or tribunal in Grenada for protection against acts that potentially violate his fundamental rights under Grenada’s Constitution and under the American Convention. Moreover, in capital cases, where Constitutional Motions relate to the procedures and conditions through which the death penalty has been imposed and therefore relate directly to the right to life and to humane treatment of a defendant, it is the Commission's view that the effective protection of those rights cannot properly be left to the random prospect as to whether an attorney may be willing or available to represent the defendant without charge. The right to judicial protection of these most fundamental rights must be guaranteed through the effective provision of legal aid for Constitutional Motions.[69] The State cannot be said to have afforded such protection to Mr. Lallion. As a consequence, the State has failed to fulfill its obligations under Article 25 of the American Convention in respect of Mr. Lallion.

99.     Accordingly, the Commission concludes that the State has failed to respect Mr. Lallion's right under Article 8(1)of the Convention by denying him an opportunity to challenge the circumstances of his conviction under the Constitution of Grenada in a fair hearing. The Commission also concludes that the State has failed to provide Mr. Lallion with a simple and prompt recourse to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the Constitution or laws of Grenada or by the Convention, and has therefore violated the right of Mr. Lallion to judicial protection under Article 25 of the American Convention.

6.       Article 7 - The Right to Personal Liberty and to be Brought Promptly before a Judge

100.   The Petitioners allege violations of Articles 7(2), 7(4) and 7(5) of the Convention, because 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 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. He was formally charged on October 2^nd   1993, and was not  brought before a Judge until October 4^th  1993.[70]  The Petitioner states that Section 22(3) of the Police Act of Grenada provides: "It shall be lawful for any police officer to detain for questioning, for a period not exceeding forty-eight hours, any person whom he believes upon reasonable suspicion to have committed or to be about to commit a criminal offence."

101.   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 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 where the deceased was laying in the morgue, 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.

102.   In addressing the issue of Article 7(5) with regard to being brought promptly before a judge, the Commission has held that it is fundamental that a person be brought before a judge promptly subsequent to their detention in order to ensure their well-being and avoid any infringement of their other rights.[71]  In Report Nº 2/97, the case of Jorge Luis Bernstein and others, the Commission declared that "[t] he right to the presumption of innocence requires that the duration of preventive detention not exceed the reasonable period of time cited in Article 7(5)."[72]  Furthermore, the Commission noted that:

In order to ensure the effective judicial oversight of the detention, the competent court must be quickly appraised of the persons who are held in confinement.  One of the purposes of such action is to protect the well-being of the persons detained and to avoid any violation of their rights. The [Commission] has determined that, unless such detention is reported to the court, or the court is so advised after an appreciable length of time has elapsed from the time the subject has been deprived of his freedom, the rights of the person in custody are not being protected and the detention infringes that person's right to due process.[73]

103.   In addition, the Commission stated that when the Commission finds that a State has purported to provide a justification for [preventive detention], "[the Commission] must proceed to ascertain whether [the State] authorities have exercised the requisite diligence in discharging the respective duties in order to ensure that the duration of such confinement is not unreasonable."[74]   In the Commission's view, such justifications might include the presumption that the accused has committed an offense, danger of flight, the risk that new offences may be committed, the need to investigate, the possibility of collusion, the risk of pressure on the witnesses, and the preservation of public order.[75]

104.   Other international human rights tribunals have endeavored to define the "prompt" appearance of a detainee before a judge more precisely. The United Nations Human Rights Committee in the case of Peter Grant v. Jamaica,[76] found that a one week period from the time of arrest to the date of being brought before a judge constitutes a violation of Article 9(3) of the ICCPR[77] [equivalent to Article 7(5) of the Convention].  Additionally, in the decision of the Committee in the case of Paul Kelly v. Jamaica,[78] the individual opinion submitted by Mr. Bertil Wennergren indicated that the word "promptly" does not allow for a delay in excess of two or three days.

105.   Additionally, the European Court of Human Rights has emphasized the importance of "promptness" in the context of Article 5(3) of the European Convention as follows:[79]

[I]t enshrines a fundamental human right, namely the protection of the individual against arbitrary interferences by the State with his right to liberty (citation omitted).  Judicial control of interferences by the executive with the individual's right to liberty is an essential feature of the guarantee embodied in Article 5(3) [of the European Convention on Human Rights], which is intended to minimize the risk of arbitrariness.  Judicial control is implied by the rule of law, "one of the fundamental principles of a democratic society"….[80]

106.   Furthermore, in the case of Brogan and Others, the European Court of Human Rights found that a period of detention of four days failed to comply with the requirement of a "prompt" appearance before a judicial authority.[81]  Similarly, in the case of Koster v. The Netherlands, the European Court found a delay of five days to be in excess of the meaning of "promptness" in bringing a detainee before a judicial authority, therefore in violation of Article 5(3) of the European Convention.[82]

107.   The Commission likewise considers that it is essential for a detainee to be brought before a judicial authority in order to review the lawfulness of his or her detention, not only in order to comply with the requirements under Article 7(5), but also to ensure the protection of the prisoner's other guaranteed rights while in detention and to minimize the risk of arbitrariness.[83] In addition, the Commission also notes that the domestic law of Grenada prohibits the Police from detaining a suspect for questioning in excess of 48 hours. This provision is found in Section 22(3) of the Police Act of Grenada which provides that: "It shall be lawful for any police officer to detain for questioning, for a period not exceeding forty-eight hours, any person whom he believes upon reasonable suspicion to have committed or to be about to commit a criminal offence." However, the State failed to comply with its own domestic law in Mr. Lallion's case, and he was questioned in excess of time permitted by Section 22(3) of the Police Act.

108.   The Commission believes that what occurred during the delay in Mr. Lallion's case before he was brought promptly before a judge is precisely what the American Convention and international human rights courts applying human rights treaties and jurisprudence discussed above seek to prevent.  Mr. Lallion was detained for questioning at about 4:15 p.m., on Wednesday September 29^th 1993, and was kept in detention until 4:00 p.m., on October 2^nd, 1993, a total of 3 days after which he was forced to sign a confession. He was formally charged on October 2^nd 1993, and was not brought before a Judge until October 4^th, 1993.[84]   Mr. Lallion's unsworn testimony before the Trial Court reveals that during the period of his detention he was questioned for an extensive period of time as to his involvement in the deceased's death. The former Assistant Superintendent of Police, Mr. Joseph, held him by his shirt, and the other policeman "Mason" punched him in his belly. Mr. Lallion was then taken to where the deceased was laying in the morgue, and was asked by a police officer to uncover the "plastic" over the deceased's body, and he complied with this request.

109.   The Commission finds that the delay of 3 days in Mr. Lallion's case was in excess of the 48 hours as provided by the Criminal Code of Grenada, although not of the same duration as the delays which were found to constitute violations before the United Nations Human Rights Committee and the European Court on Human Rights. The Commission notes that the provisions of the ICCPR[85] and European Convention[86] under consideration by those tribunals are virtually identical to Article 7(5) of the American Convention, and the Commission sees no reason why the Convention should be subject to any lesser standard  with respect to  the right of a detained person to be brought promptly before a judge. Moreover, the State has not provided any response to the allegations concerning the issue of delay, nor has the State offered any adequate explanation or justification for the delay in  Mr. Lallion's case.

110.   In assessing the totality of the circumstances of Mr. Lallion's detention, the Commission finds that throughout Mr. Lallion's detention he was not informed promptly of the charges against him in violation of Article 7(4).  The Commission also finds that because Mr. Lallion was not brought promptly before a judge, the State violated his right guaranteed under Article 7(4) of the Convention. In addition, the Commission finds that Mr. Lallion's detention by the State in violation of Article 7(4) and 7(5) also constituted an arbitrary deprivation of Mr. Lallion's right to personal liberty pursuant to  Article 7(2) of the Convention. The Commission therefore concludes that the State violated Mr. Lallion's right to personal liberty guaranteed by Article 7(2), 7(4) and 7(5) of the Convention.

V.      PROCEEDINGS SUBSEQUENT TO REPORT Nº 97/01

111.   The Commission examined this case in the course of its 113^th regular session and on October 11, 2001 adopted Report N° 97/01 pursuant to Article 50 of the American Convention.

          112.   On October 23, 2001, the Commission transmitted Report N° 97/01 to the State and requested that the Government of Grenada inform the Commission within two months as to the measures adopted to comply with the recommendations made to resolve the situation denounced.

113.   As of December 23, 2001, the date of expiration of the prescribed two-month period, the Commission had not received a response from the State to Report N° 97/01.

VI.      FINAL CONCLUSIONS

114.   The Commission, on the basis of the information presented, and the due analysis under the American Convention, ratifies its conclusions that the State of Grenada is liable as follows:

          115.   The State is responsible for violating Mr. 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.

          116.   The State is responsible for violating Mr. Lallion's rights 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.

          117.   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. Lallion's right to physical, mental, and moral integrity by confining  him in inhumane conditions of detention.

          118.   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 to pursue a Constitutional Motion.

119.   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, and to be brought promptly before a judicial officer.

VII.     RECOMMENDATIONS

Based on the analysis and the conclusions in this Report,

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS RECOMMENDS THAT THE STATE OF GRENADA:

1.       Grant Mr. Lallion an effective remedy which includes commutation of sentence and compensation.

2.       Adopt such legislative or other measures as may be necessary to ensure that the death penalty is not imposed in violation of the rights and freedoms guaranteed under the Convention, including Articles 4, 5, and 8, and in particular, to ensure that no person is sentenced to death pursuant to a mandatory sentencing law in Grenada.

3.       Adopt such legislative or other measures as may be necessary to ensure that the right under Article 4(6) of the American Convention to apply for amnesty, pardon or commutation of sentence is given effect in Grenada.

4.       Adopt such legislative or other measures as may be necessary to ensure that the right to a fair hearing under Article 8(1) of the American Convention and the right to judicial protection under Article 25 of the American Convention are given effect in Grenada in relation to recourse to Constitutional Motions.

5.       Adopt such legislative or other measures as may be necessary to ensure that the right to humane treatment under Article 5(1) of the American Convention in respect of Mr. Lallion's conditions of detention is given effect in Grenada.

6.       Adopt such legislative or other measures as may be necessary to ensure that the right to personal liberty under Article 7(2), Article 7(4), and 7(5) of the American Convention in respect of Mr. Lallion is given effect in Grenada.

VIII.    PUBLICATION

120.   On March 22, 2002, in conformity with Article 51(1) and 51(2) of the American Convention, the Commission sent Report No. 28/02 which was adopted in this case on March 12, 2002, to the State of Grenada, and granted the State a period of one month for it to adopt the necessary measures to comply with the foregoing recommendations and to resolve the situation under analysis.

121.   The period of one month has elapsed and the Commission has not received a response from the State of Grenada in respect of its Recommendations in this case.

IX.              FINAL ANALYSIS AND CONCLUSIONS

122.   Based on the foregoing and pursuant to Article 51(3) of the American Convention and Article 48 of the Commission’s Regulations, the Commission decides to reiterate the conclusions and recommendations contained in Report Nº 28/02. The Commission further decides to make public this report and include it in the Commission’s Annual Report to the General Assembly of the OAS.    

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