...continued

 

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

 

a.          Conditions of Detention

 

90.          The Petitioners allege that the State has violated Mr. Jacob'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. Jacob’s execution unlawful under Article 4 of the Convention.


91.          In support of their allegations, the Petitioners provide details of the conditions under which Mr. Jacob has been detained on death row in Richmond Hill Prison, Grenada, upon his conviction for murder, and submit the following:  

He is presently incarcerated on death row which consists 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).

 

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

 

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

 

He is provided with three meals a day.  Sometimes food is brought to him in his cell where he is made to eat alone.  The food is generally of a poor quality.  He is provided with drinking water.

 

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

 

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

 

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

 

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

 

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

 

92.          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. Jacob's allegations in respect of the conditions in which he has been incarcerated since his arrest.

 

93.          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 [65] (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.

 

94.          It is evident based upon the Petitioners' allegations that the State has failed to meet these minimum standards of proper treatment of prisoners. The cumulative impact of such conditions, together with the length of time for which Mr. Jacob 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. [66] Based upon the information provided by the Petitioners, the conditions of detention to which Mr. Jacob has been subjected fail to meet several of these minimum standards of treatment of prisoners, in such areas as hygiene, exercise and medical care.

 

95.          For example, Mr. Jacob claims that the cell has no windows, no natural lighting, and no ventilation, and that the lighting in his cell is insufficient. Mr. Jacob reports 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. Jacob maintains that he is not allowed to use the prison library, nor is he allowed access to the chaplain or religious services. Further, Mr. Jacob states that he receives inadequate medical care, as 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. Jacob contends that there are no adequate mechanisms or procedures in the prison for dealing with his complaints.

 

96.          The State did not reply to Mr. Jacob's petition with respect to prison conditions in Grenada, generally, or as they pertain to Mr. Jacob. The State in the penultimate paragraph in its Reply to the petition in respect of Paul Lallion, Case 11.765, presently before the Commission, 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." 

 

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

 

b.          Method of Execution by Hanging

 

98.          The Petitioners have also contended in respect of Mr. Jacob that his execution by hanging constitutes cruel, unusual or degrading punishment or treatment contrary to Article 5(2) of the Convention and claim that hanging is therefore inconsistent with the requirements under Article 4(2) of the Convention governing the implementation of capital punishment. Given its conclusions in Part IV of this Report that Mr. Jacob's death sentence contravenes Articles 4, 5 and 8 of the Convention, so as to render any subsequent execution unlawful, the Commission does not consider it necessary to determine whether the method of execution employed in Grenada constitutes cruel, inhuman or degrading punishment or treatment contrary to Article 5(2) of the Convention.

 

5.       Articles 8 and 25 – Unavailability of legal aid for constitutional motions

 

99.          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 the 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 claims 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. [67]

 

100.          The Petitioners contend that the failure of the State to provide legal aid denies Mr. Jacob 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. Jacob is indigent, and that legal aid is effectively not available to him to pursue a Constitutional Motion in the courts in Grenada. They also contend that there is a dearth of Grenadian lawyers who are prepared to represent Mr. Jacob pro bono.

 

101.          Based upon the material before it, the Commission is satisfied that Constitutional Motions dealing with legal issues of the nature raised by Mr. Jacob 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 also finds that the State does not provide legal aid to individuals in Grenada to bring Constitutional Motions, and that Mr. Jacob is indigent and is therefore not otherwise able to secure legal representation to pursue a  Constitutional Motion.

 

102.          The Commission considers that in the circumstances of Mr. Jacob's case, the State's obligations regarding legal assistance for Constitutional Motions flow from both Articles 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 Articles 8(1) of the Convention. In the circumstances of Mr. Jacob's case, the High Court of Grenada would be called upon to determine whether his conviction in a criminal trial violated rights under the Grenada’s Constitution. In such cases, 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. [68] 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.

 

103.          Due to the unavailability of legal aid, Mr. Jacob 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. [69]    

 

104.          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." [70]

 

105.          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. [71] 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.

 

106.          By failing to make legal aid available to Mr. Jacob to pursue a Constitutional Motion in relation to his criminal proceedings, the State has effectively barred recourse for Mr. Jacob 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. [72] The State cannot be said to have afforded such protection to Mr. Jacob. As a consequence, the State has failed to fulfill its obligations under Article 25 of the American Convention in respect of Mr. Jacob.

 

107.          Accordingly, the Commission concludes that the State has failed to respect Mr. Jacob's rights 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. Jacob 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 Mr. Jacob's right to judicial protection under Article 25 of the American Convention.

 

V.          PROCEEDINGS SUBSEQUENT TO REPORT Nº 98/01

 

108.          The Commission examined this case in the course of its 113th regular session and on October 11, 2001 adopted Report N° 98/01 pursuant to Article 50 of the American Convention.

 

          109.          On October 23, 2001, the Commission transmitted Report N° 98/01 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.

 

110.          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° 98/01.

 

VI.          FINAL CONCLUSIONS

 

111.          Consequently, 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:

 

          112.          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.

 

          113.          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.

         

          114.          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 confining him in inhumane conditions of detention.

 

          115.          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.

 

 
 
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. Jacob 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. Jacob's conditions of detention is given effect in Grenada.

 

 

VIII.          PUBLICATION

 

116.          On March 22, 2002, in conformity with Article 51(1) and 51 (2) of the American Convention, the Commission sent Report No. 29/02 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.

 

117.          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

 

118.          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 29/02. 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.

 

          Done and signed at the headquarters of the Inter-American Commission on Human Rights, in the city of Washington, D.C., on the 21st day of the month of October in the year 2002.  (Signed)  Juan Mendez, President; Marta Altolaguirre, First Vice-President; José Zalaquet, Second Vice-President; Commissioners:  Robert K. Goldman, Julio Prado Vallejo, Clare K. Roberts and Susan Villarán.

   

  continued...

 

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65 United Nations Standard Minimum Rules for the Treatment of Prisoners, adopted August 30, 1955 by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, U.N. Doc. A/CONF/611, annex I, E.S.C. res. 663C, 24 U.N. ESCOR Supp. (Nº 1) at 11, U.N. Doc. E/3048 (1957), amended E.S.C. res. 2076, 62 U.N. ESCOR Supp. (Nº 1) at 35, U.N. Doc E/5988 (1977).

66 See similarly European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), Second General Report on the CPT's Activities Covering the Period 1 January to 31 December 1991, Ref. CPT/Inf. (92) 3 (13 April 1992), paras. 44-50 (criticizing prison conditions involving overcrowding, the absence of at least one hour of exercise in the open air every day for prisoners, and the practice of prisoners discharging human waste in buckets, and stating that the Committee is "particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners.)

67 Article 28 provides that "petitions addressed to the Commission shall contain the following information: (f) the State the petitioner considers responsible, by act or omission, for the violation of any of the human rights recognized in the American Convention on Human Rights and other applicable instruments, even if no specific reference is made to the article(s) alleged to have been violated."

68 See I/A Court H.R., Exceptions to the Exhaustion of Domestic Remedies (Arts. 46(1), 46(2)(a) and 46(2)(b) of the American Convention on Human Rights), Advisory Opinion OC-11/90 of August 10, 1990, Annual Report 1991, para. 28 interpreting Article 8(1) of the Convention as follows:

For cases which concern the determination of a person's rights and obligations of a civil, labor, fiscal or any other nature, article 8 does not specify any minimum guarantees similar to those provided in Article 8(2) for criminal proceedings. It does, however, provide for due guarantees; consequently, the individual here also has the right to the fair hearing provided for in criminal cases.

See also I/A Comm. H.R., Loren Laroye Riebe Star and others  v. Mexico, Report Nº. 49/99 (13 April 1999), Annual Report 1998, para. 70 (interpreting Article 8(1) in the context of administrative proceedings leading to the expulsion of foreigners as requiring certain minimal procedural guarantees, including the opportunity to be assisted by counsel or other representative, sufficient time to consider and refute the charges against them and to seek and adduce corresponding evidence.).

69 See similarly Currie v. Jamaica, Communication Nº 377/1989, U.N. Doc. Nº. CCPR/C/50/D/377/1989 (1994), para. 13.4 (concluding that where a convicted person seeking Constitutional review of irregularities in a criminal trial has not sufficient means to meet the costs of legal assistance in order to pursue his Constitutional remedy and where the interests of justice so require, Article 14(1) of the International Covenant on Civil and Political Rights required the State to provide legal assistance).

70  See Peru Case, supra, pp. 190-191.

71 I/A Court H.R., Exceptions to the Exhaustion of Domestic Remedies, supra, para. 30.

72 See similarly U.N.H.R.C., William Collins v. Jamaica, Communication Nº. 240/1987, U.N. Doc. Nº. CCPR/C/43/D/240/1987 (1991), para. 7.6 (finding that in capital punishment cases, legal aid should not only be made available, it should enable counsel to prepare his client's defense in circumstances that can ensure justice.).