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").
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.
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.
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.
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.
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
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:
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.
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.
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.
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
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.
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.
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.”
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
III. POSITIONS OF THE PARTIES ON ADMISSIBILITY
A. Position of the Petitioners
Background of Mr. Jacob's Case
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.
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."
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.
Petitioners Position on Admissibility
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.
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
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
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,
in which the HRC stated as follows:
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 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
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
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.
Mr. Jacob's Claims on the Merits of his Case
Articles 4, 5, 8 and 24 of the Convention –
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.
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.
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.  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  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:
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,  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").  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,  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.  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.
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  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,  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:
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
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.
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
19th 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:
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
both St. Vincent and Grenada the men’s prison uniform was a blue top
and shorts, decent but not very conducive to dignity.
Grenada, there were no separate punishment cells. Prisoners on punishment were put in the special security
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
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:
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"
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:
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.
holding of prisoners sentenced to death in the conditions currently
obtaining in the special security blocks in Grenada is inappropriate
and should cease forthwith.
subjecting prisoners under sentence of death to living with the lights
on for 24 hours a day should cease forthwith.
restricting the programmed of activities of prisoners awaiting
sentence of death to one hour of exercise a day, should cease
That prisoners under sentence of death should be entitled to substantial amounts of visiting time with their families.
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:
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.
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
of the International Covenant on Civil and Political
Rights (ICCPR). These cases include Antonaccio v. Uruguay,
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,
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,
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. 
The Petitioners similarly argue that the European Court's
jurisprudence in respect of Article 3
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,
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
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.
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.
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,
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.
Method of Execution in Grenada
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
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
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;
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.
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.
Section 234 of
the Criminal Code (Cap. 76 of Volume 1 of the 1958 Revised Laws of
Pages 58-59 of
the Trial Transcript.
Pages 59-60 of
the Trial Transcript.
Palmer & Chisolm v. Jamaica, Communication Nº 445/1991.
Article 5(2) of
the Optional Protocol to the International Covenant on Civil and
Political Rights provides: "The Committee shall not consider
any communication from an individual unless it has ascertained that:
(b) The individual has exhausted all available domestic remedies.
This shall not be the rule where the application of the
remedies is unreasonably prolonged”.
this regard, see Guerra v. Baptiste and others  4 All
E.R. 583 (P.C.). In this case, the appellant, who had been convicted
of murder in Trinidad and Tobago and sentenced to death, argued, inter
alia, that to execute him after the period of time that he spent
on death row would constitute a breach of his rights under the
Constitution of Trinidad and Tobago and the principles established
by the Privy Council in the case of Pratt and Morgan v. A.G. for
Jamaica. In finding that the Court had jurisdiction to entertain
the appellant’s constitutional argument, the Judicial Committee of
the Privy Council relied upon its determination in Pratt and
Morgan and found that judges in Trinidad and Tobago would as a
matter of common law have the power to stay a long delayed
execution as not being in accordance with the due process of law,
and therefore that a long delayed execution was not barred from
challenge as cruel and unusual punishment under the Constitution. At
the same time, the Court confirmed that the death penalty itself
could not be challenged under the Constitution of Trinidad and
the coming into force of the Constitution of Trinidad and Tobago
1976 (and indeed the 1982 Constitution) capital punishment was
accepted as a punishment which could lawfully be imposed, so that
execution pursuant to a lawful sentence of death could amount to
depriving a person of his life by due process of law, and could not
itself amount to cruel and unusual punishment contrary to s.
North Carolina, 49 L Ed 2d 944 (1976).
Id., at 961.
v. the State of the Punjab, (1980) 2 SCC 684).
Soering v. UK (1989) 11 EHHR 439.
William Schabas, Abolition of the Death Penalty in International
Law (1993), pp. 263-279.
v. Makwanyane and McHunu, Judgment, Case Nº. CCT/3/94 (6 June
1995) (Constitutional Court of South Africa). See also
U.N.H.R.C., Ng v. Canada,
Communication Nº. 469/1991, at p. 21 (suggesting that every
execution of a sentence of death may be considered to be cruel and
inhuman treatment within Article 7 of the ICCPR).
Articles 72, 73
and 74 of the Constitution of Grenada read as follows:
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.
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
(1)There shall be an Advisory Committee on the Prerogative of Mercy
which shall consist of – (a) the 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.
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.
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.
The Committee may regulate its own procedure.
In the exercise of his functions under this section, the
Governor-General shall act in accordance with the advice of the
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.
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.
Minister of Public Safety (Nº. 2) (1996) 2 WLR 281.
290 d- f.
Rights Report 1990, p. 40.
Rights Report 1991, p.30.
Article 7 of
the ICCPR provides: "No one shall be subjected to torture or to
cruel, inhuman or degrading treatment or punishment.
In particular, no one shall be subjected without his free
consent to medical or scientific experimentation."
of the ICCPR provides: "All persons deprived of their liberty
shall be treated with humanity and with respect for the inherent
dignity of the human person."
U.N.H.R.C., Antonaccio v. Uruguay, U.N. Doc. A/37/40.
Voituret v. Uruguay, U.N. Doc. A/39/40.
v. Cameroon, Communication No. 458/1991.
Article 3 of
the European Convention provides: "No one shall be subjected to
torture or to inhuman and degrading treatment or punishment."
H.R., Greek Case, 12 YB 1 (1969).
H.R., Cyprus v. Turkey, Application 6780/74 and 6950/75.
Morgan –v- The Attorney General of Jamaica  2 AC 1.
cite in this regard the decision of the UN Human Rights Committee in
the case Ng v. Canada, Communication No. 469/1991, in which
the Committee stated that when imposing capital punishment in
accordance with Article 7 of the International Covenant on Civil and
Political Rights, the execution of the sentence "must be
carried out in such a way as to cause the least possible physical
and mental suffering."