Report Nº 56/02

MERITS

CASE 12.158

BENEDICT JACOB

GRENADA

October 21, 2002

 

 

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 May 21, 1999, on behalf of Benedict Jacob (hereinafter referred to as "Mr. Jacob"). The petition alleges that the State of Grenada (hereinafter referred to as "the State") violated Mr. Jacob's rights under the American Convention on Human Rights (hereinafter referred to as "the Convention").

 

2.          The Petitioners state that in this case, Mr. Jacob, a national of Grenada, was tried, and convicted of murder by the State pursuant to the Criminal Code of Grenada, on June 30, 1997, and a mandatory death sentence by hanging was imposed on him in accordance with the domestic law of Grenada. [1]   According to the Petitioners, Mr. Jacob appealed his conviction and sentence to the Eastern Caribbean Court of Appeal in Grenada and his appeal was dismissed by the Court on December 8, 1997. The Petitioners inform that Mr. Jacob petitioned the Judicial Committee of the Privy Council for Special Leave to Appeal as a Poor Person, and the Privy Council dismissed his petition on December 16, 1998.

 

3.          The Petitioners argue that the petition is admissible because Mr. Jacob's petition has satisfied the requirements of Article 46 of the Convention. The Petitioners also allege that the State has violated Mr. Jacob's rights under Articles 4(1), 4(6), 5(1), 5(2), 5(6), 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. Jacob'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. Jacob's death sentence and release him from prison.

 

5.          In this Report, the Commission concludes that the Petitioners' claims relating to violations of the Convention on behalf of Mr. Jacob satisfy the requirements of Article 46 of the Convention and are therefore admissible.

 

6.          Consequently, the Commission, on the basis of the information presented, and the due analysis under the American Convention, concludes that the State of Grenada is liable as follows:

         

1.         The State is responsible for violating Mr. Jacob'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. Jacob to a mandatory death penalty.

 

2.         The State is responsible for violating Mr. Jacob'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. Jacob with an effective remedy to apply for amnesty, pardon or commutation of sentence.

 

3.         The State is responsible for violating Mr. Jacob'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. Jacob's rights to physical, mental, and moral integrity by detaining him in inhumane conditions of detention.

 

4.         The State is responsible for violating Mr. Jacob'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 him to pursue a Constitutional Motion.

 

II.          PROCEEDINGS BEFORE THE COMMISSION

 

7.          On May 21, 1999, the Petitioners presented Mr. Jacob's petition to the Commission.  On June 9, 1999, the Commission opened Case Nº. 12.158 in respect of Mr. Jacob and forwarded the pertinent parts of the petition and the Petitioners’ supplementary arguments to the State and requested 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. Jacob's execution pending an investigation by the Commission of the alleged facts.

 

8.          On September 25, 2000, the Commission reiterated its request for information to the State concerning the admissibility of the petition and the claims raised therein.

 

9.          On August 20, 2001, the Commission wrote to the State and the Petitioners and informed them that it places itself at the disposal of the parties concerned with a view to reaching a friendly settlement in Mr. Jacob's case.

 

10.           On August 30, 2001, the Petitioners wrote to the Commission stating the following: "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 itself has shown no willingness to actively participate in this matter.”

 

11.           To date, the State has not responded to any of the Commission’s communications, nor has it presented any information to the Commission pertaining to the admissibility and merits of the petition, or the Commission’s offer to facilitate a friendly settlement between the parties.

 

III.         POSITIONS OF THE PARTIES ON ADMISSIBILITY

 

A.        Position of the Petitioners

 

1.          Background of Mr. Jacob's Case

 

          12.          The Petitioners inform that on June 30, 1997, Mr. Jacob was tried, and convicted for the murder of Evadney Bowen (which occurred on April 23, 1995) and sentenced to a mandatory death penalty by hanging without any opportunity to present evidence of mitigating circumstances, pursuant to Section 234 of the Criminal Code of the 1958 Revised Laws of Grenada.  The Petitioners indicate that the Prosecutor's case was that the deceased and Mr. Jacob had a personal relationship and lived together for some time. The Petitioners maintain that subsequently the deceased and Mr. Jacob stopped cohabiting together approximately 6 to 7 months before her death occurred on April 23, 1995.  The Petitioners inform that according to the Prosecution's case, on April 23, 1995, Mr. Jacob was inside of his parked van when he saw the deceased. Mr. Jacob asked the deceased to go with him, she refused to do so, and he caused the deceased's death.

 

          13.          The Petitioners report that Mr. Jacob did not give evidence in Court, however, Dr. Olubahkle Obikaya, a consultant psychiatrist testified on Mr. Jacob's behalf.  Dr. Obikaya testified that he examined Mr. Jacob on June 23, 1997, and he was informed by Mr. Jacob, that he was labouring under an intense and unpleasant belief that the deceased, with the help of someone else had "cast a spell on him and actually believed that some harm or danger was going to come to him." Dr. Obikaya further testified that Mr. Jacob informed him that the relationship with the deceased continued, secretly, because the deceased's mother did not like the relationship. Dr. Obikaya also testified that Mr. Jacob related to him that on April 23, 1995, the date of the deceased's death, that he and the deceased were having a friendly chat and that the last thing he remembered was the deceased saying, "Dennis, you going to die." [2]

 

          14.          The Petitioners indicate that Dr. Obikaya testified that at that point something clicked in Mr. Jacob's mental state, possibly and abnormal electrical brain discharge and that it was possible that Mr. Jacob could have been in that fused state on the morning in question. Dr. Obikaya testified that the fused state is actually a "state in which an individual affirms a series of actions which [he or she] is totally unaware of, and which he is unable to account for afterwards," and that someone in that state could not know whether their action is right or wrong. The Petitioners maintain that Dr. Obikaya testified on cross-examination that it was possible that Mr. Jacob was in a fused state on the morning of April 23, 1995, and in answer from the Jury, Dr. Obikaya stated that he was convinced that Mr. Jacob was telling the truth. [3]

2.          Petitioners Position on Admissibility

 

15.          The Petitioners argue that Mr. Jacob has met the requirements of Article 46(1)(a) of the Convention, that all effective and available domestic remedies have been exhausted, and that the petition is admissible.  The Petitioners argue that Mr. Jacob should be excused from exhausting domestic remedies pursuant to Articles 46(2)(b) of the American Convention because of the State’s failure to provide Mr. Jacob with legal aid to challenge his Constitutional rights in respect of his mandatory death sentence.

 

16.          The Petitioners indicate that Mr. Jacob appealed his conviction and sentence to the Eastern Caribbean Court of Appeal of Grenada, and his appeal was dismissed by the Court on December 8, 1997.  According to the Petitioners, Mr. Jacob petitioned the Judicial Committee of the Privy Council for Special Leave to Appeal as a Poor Person, and that the Privy Council dismissed his petition on December 16, 1998. 

 

17.          The Petitioners argue that Mr. Jacob is unable to pursue a Constitutional Motion to the Supreme Court of Grenada to challenge his mandatory death sentence as being inhuman or degrading punishment or treatment because Mr. Jacob is indigent, and the State’s domestic law does not provide private funds nor legal aid to indigent persons to pursue such Motions. The Petitioners claim that the Constitution is a complex legal document and that expert legal representation is therefore required to have a reasonable prospect of success on a Constitutional Motion. They argue further, that Mr. Jacob's lack of private funding and the unavailability of legal aid prohibit him from pursuing a Constitutional Motion and therefore render this remedy illusory. The Petitioners also state that there is a dearth of Grenadian lawyers who are prepared to represent Mr. Jacob without payment.

 

18.          The Petitioners contend that the absence of legal aid for an impecunious individual is sufficient to establish that domestic remedies are not available for the purposes of exhaustion. In support of their position, they rely upon the decision of the United Nations Human Rights Committee (hereinafter referred to as "HRC") in Champagnie, Palmer & Chisolm v. Jamaica, [4] in which the HRC stated as follows:

 

With respect to the authors’ possibility of filing a Constitutional Motion, the Committee considers that, in the absence of Legal Aid, a Constitutional Motion does not constitute an available remedy in the case.  In light of the above, the Committee finds that it is not precluded by Article 5(2)(b) of the Optional Protocol from considering the communication. [5]

 

19.          The Petitioners also contend that Article 5(2) of the Constitution of Grenada is drafted so as to immunize from attack laws and punishments which were lawful before

Independence.  The Petitioners maintain that these provisions have the effect of freezing in colonial time legislation which, without exception, authorize the mandatory death penalty by hanging.  In addition, the Petitioners indicate that it is not possible to argue in any Court in Grenada that the death penalty is unconstitutional, because of its mandatory nature, or because the execution of the death sentence by hanging is cruel, unless the way in which it is to be administered would not have been lawful before Independence.  Moreover, the Petitioners claim that arguments about whether or not the mandatory death penalty by hanging is lawful can only be made before this Commission under the Convention.

 

3          Mr. Jacob's Claims on the Merits of his Case

            Articles 4, 5, 8 and 24 of the Convention – The mandatory nature of the death penalty and the prerogative of Mercy

 

(a)          The mandatory death penalty

 

20.          The Petitioners claim that by imposing a mandatory death sentence on Mr. Jacob upon his conviction for murder, the State violated his rights under Articles 4(1), 4(6), 5(1), 5(2), 5(6), 8 and 24 of the Convention.

 

21.          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 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 in the United Kingdom 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.

 

22.          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 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.

 

23.          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.

 

24.          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. [6]   At the same time, the Petitioners argue that imposing a mandatory death sentence on Mr. Jacob, without providing him with an opportunity to present evidence of mitigating circumstances relating to them or their offenses, violate his rights under Articles 4, 5, 8 and 24 of the Convention.

 

25.          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 [7] 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. [8]

 

26.          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 No. 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, [9] 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. 

 

27.          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. Jacob 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.

 

28.          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"). [10] 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, [11] 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. 

 

29.          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. Jacob's case a violation of Article 4. First, the State 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.

 

30.          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.

 

31.          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. [12] 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. Jacob'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 were imposed, the conditions of Mr. Jacob'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.

 

32.          In addition, the Petitioners argue that the mandatory death sentence imposed on Mr. Jacob violates Articles 8 and 24 of the Convention, on the basis that Grenada’s Constitution does not permit him to allege that his execution is unconstitutional as being inhuman or degrading or cruel and unusual, and does not afford Mr. Jacob a 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. Jacob'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. 

 

33.          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. 

 

34.          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 on the behalf of the authorities to carry this punishment into effect. 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. Jacob'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.

 

b.       The Prerogative of Mercy

 

35.          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 [13] 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 sentence of death should be carried out.

 

36.          The Petitioners indicate in this regard that in the case of Reckley v. Minister of Public Safety Nº.2, [14] 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. [15]

 

37.          The Petitioners also assert that the violation of Mr. Jacob'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. Jacob of his life to establish the absence of inequality and discrimination in the operation of its penal law.

 

c.       Article 5 - Conditions of Detention/Method of Execution

 

          (i)          Conditions of Detention

 

38.          The Petitioners claim that the State has violated Mr. Jacob's rights under Articles 5(1) and 5(2) of the Convention, because of his conditions of detention. According to the Petitioners, since Mr. Jacob'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.

 

39.          In support of their petition, the Petitioners have 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. [16]

 

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. [17]  

 

40.          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" [18] .

 

41.          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. [19]

 

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 programmed 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.

 

42.          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. [20]

 

43.          In support of their contention that Mr. Jacob'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 [21] and 10(1) [22] of the International Covenant on Civil and Political Rights (ICCPR). These cases include Antonaccio v. Uruguay, [23] 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, [24] 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, [25] 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. [26]

 

44.          The Petitioners similarly argue that the European Court's jurisprudence in respect of Article 3 [27] of the European Convention support their contention that Mr. Jacob's conditions of detention violate his rights under Article 5 of the American Convention. In particular, the Petitioners rely upon the Greek Case, [28] 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 Case [29] 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.

 

45.          Further, the Petitioners argue that the conditions under which Mr. Jacob 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.

 

46.          With respect to Article 4 of the Convention, the Petitioners argue that  Mr. Jacob's detention in inhuman and degrading conditions renders unlawful the carrying out of his death sentence, 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, [30] 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. Jacob'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.

 

(ii)           Method of Execution in Grenada

 

47.          The Petitioners argue that the execution of Mr. Jacob's death sentence by hanging, as provided for under Grenadian law, constitutes cruel and inhuman treatment or punishment per se in violation of Article 5(1) and 5(2) of the Convention. In this regard, the Petitioners submit that whereas Article 4 of the Convention allows for the imposition of the death penalty under certain limited circumstances, any method of execution provided by law must be designed in such a way as to avoid conflict with Article 5 of the Convention. [31]

 

48.          In support of their arguments, the Petitioners provided detailed accounts of the physical, physiological and psychological effects of hanging upon a condemned prisoner, as described in the affidavits of Dr. Harold Hillman dated April 28, 1999, Dr. Albert Hunt dated July 1, 1997, and Dr. Francis Smith dated March 24, 1996. Based upon this evidence, the Petitioners allege that the execution of Mr. Jacob's death sentence by hanging would violate Article 5(2) of the Convention because:

 

(a) death by hanging constitutes inhuman and degrading treatment because it does not result in instantaneous death, and there is an impermissibly high risk that Mr. Jacob will suffer an unnecessarily painful and tortuous death by strangulation;

 

(b) the pressure in the brain will increase and this is normally accompanied by severe headaches. The increased pressure can be seen as engorgement of the face, eyes and tongue;

 

(c) the obstruction of the windpipe raises the carbon dioxide concentration in the blood which makes the person want to inspire, but he cannot do so, due to the obstruction of the windpipe itself. This causes great distress, as occurs during strangulation. However, the person cannot cry out nor can he react normally to distress and pain by moving his limbs violently as they are tied;

 

(d) the skin beneath the rope in the neck is stretched by the fall and this will be painful; and

 

(e) the humiliating effects of hanging on the body clearly amount to degrading treatment and punishment.

 

          49.          In addition, the Petitioners contend that the execution of Mr. Jacob by hanging in these circumstances would not meet the test of "least possible physical and mental suffering," and would therefore constitute cruel and inhuman treatment, in violation of Article 5 of the Convention.  

  continued...

 

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