5.       Article 8 of the Convention - Right to a Fair Trial

139.   The Petitioners have alleged that the State is responsible for violations of Article 8 of the Convention in respect of Mr. Aitken, based upon the adequacy of legal representation provided to him at trial.

140.   In particular, the Petitioners allege that according to Mr. Aitken it was very difficult for him to give instructions to his lawyer because the only conferences that he had with his attorney were at Court during the conduct of his trial.  The Petitioners also claim that they wrote to Mr. Aitken’s trial attorney on numerous occasions requesting information about the preparation of Mr. Aitken’s defense, but that as of the date of their petition the attorney had not replied.

141.   In response, the State contends that it is not responsible for any alleged violations in this regard, because according to the jurisprudence of the UN Human Rights Committee a state cannot be held responsible for any alleged deficiencies in the defense of the accused or alleged errors committed by the defense lawyer unless it was manifest to the trial judge that the lawyer’s behavior was incompatible with the interests of justice.

142.   In addressing this issue, the Commission notes that according to Article 8(2)(d) of the Convention, every person accused of a criminal offense has the right to defend himself personally or to be assisted by legal counsel of his own choosing.  Article 8(2)(e) of the Convention provides every such person the inalienable right to be assisted by counsel provided by the State, paid or not paid as the domestic law provides, if the accused does not defend himself personally or engage his own counsel within the time limit established by law.  Strict compliance with these and other guarantees of due process are particularly fundamental in the context of trials involving capital offenses.  The Commission also considers that these rights apply to all stages of a defendant’s criminal proceedings, including the preliminary process, if one exists, leading to his committal for trial, and at all stages of the trial itself.  In order for these rights to be effective, a defendant must be provided with an opportunity to retain counsel as soon as reasonably practicable following their arrest or detention.  The State’s obligations in this regard involve not only making legal aid available, but facilitating reasonable opportunities for the defendant to contact and consult with his or her counsel. [55]

143.   After carefully considering Mr. Aitken’s claims relating to the effectiveness of the representation by his trial counsel, the Commission does not find that the Petitioners have adequately substantiated these allegations. The information available does not suggest, for example, that Mr. Aitken made it known to State officials prior to or during his trial that he considered his legal representation to be inadequate, or that the conduct of Mr. Aitken’s attorney was sufficiently ineffective that it would have been clear or should have been manifest to the trial judge that the behavior of Mr. Aitken’s attorney was incompatible with the interests of justice. [56]    Based upon these considerations, the Commission does not find violations of Articles 4 or 8 of the Convention in respect of this aspect of Mr. Aitken’s petition.

6.       Articles 8, 24 and 25 of the Convention – Denial of Access to Constitutional Motions

144.   The Petitioners argue that Mr. Aitken does not have the financial means to pursue a Constitutional Motion in respect of violations of his rights under the Jamaican Constitution and that legal aid is not effectively available for Constitutional Motions before the courts in Jamaica, and therefore that Mr. Aitken has been denied recourse to domestic protection against acts that violate his fundamental rights contrary to Articles 24 and Article 25 of the Convention.  These provisions read as follows:

24      All persons are equal before the law.  Consequently, they are entitled, without discrimination, to equal protection of the law.

25(1)  Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties.

(2)      The States Parties undertake:

(a)     To ensure that any person claiming such remedy shall have his rights determined by the competent authority provided for by the legal system of the state;

(b)     To develop the possibilities of judicial remedy; and

(c)     To ensure that the competent authorities shall enforce such remedies when granted.

145.   More particularly, as noted previously, the Petitioners have claimed that Constitutional Motions before the domestic courts in Jamaica often involve sophisticated and complex questions of law which require the assistance of counsel.  The Petitioners also claim that Mr. Aitken is indigent, and the State does not provide legal aid to pursue Constitutional Motions in Jamaica.  As a consequence, the Petitioners allege that the State's failure to provide legal aid in order to present Constitutional Motions constitutes a denial of Mr. Aitken’s access to the court and to effective remedies, in fact as well as in law.

146.   In its response to this contention, the State argues that Article 24 and 25 of the Convention do not place an obligation on State Parties to provide legal aid for Constitutional Motions.  Rather, the State argues that Article 8(2)(e) of the Convention only places an obligation on State Parties to provide legal aid for criminal proceedings, and as a Constitutional Motion is not a criminal proceeding, the State denies that there has been a breach of the Convention.

147.   In light of the material before it, the Commission is satisfied that Constitutional Motions dealing with legal issues of the nature raised by Mr. Aitken in his proceeding before the Commission such as the mandatory nature of his death sentence and his right to due process  are procedurally and substantively complex and cannot be effectively raised or presented by a victim in the absence of legal representation.  The Commission also finds, in the absence of evidence to the contrary, that Mr. Aitken lacks the financial means to bring a Constitutional Motion on his own, and, based upon the observations of both the Petitioners and the State, that Jamaica does not provide legal aid to individuals in Jamaica to bring such motions.

148.   Based upon these submissions and the Commission’s existing jurisprudence, the Commission considers that the State is subject to an obligation under the American Convention to provide individuals with effective access to Constitutional Motions, which may in certain circumstances require the provision of legal assistance.  In particular, the Commission considers that a Constitutional Motion in the Supreme Court of Jamaica must, as a proceeding for the determination of an individual’s rights, conform with the requirements of a fair hearing in accordance with Article 8(1) of the Convention.  Moreover, in the circumstances of the present case where the Supreme Court would be called upon to determine Mr. Aitken’s rights in the context of his trial, conviction and sentencing for a criminal offense, the Commission considers that the requirements of a fair hearing mandated by Article 8(1) of the Convention should be interpreted in a manner consistent with the principles in Article 8(2) of the Convention, including the right under Article 8(2)(e) to the effective assistance of counsel. [57] 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.  In the present case, the effective unavailability of legal aid has denied Mr. Aitken the opportunity to challenge the circumstances of his criminal conviction under the Constitution of Jamaica in a fair hearing, and therefore has contravened his right to a fair hearing under Article 8(1). [58]

149.   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 his or her 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 Article 25, when read together with the obligation under 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.” [59]  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. [60]   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 cases.

150.   By failing to make legal aid available to Mr. Aitken to pursue a Constitutional Motion in relation to his criminal proceedings, the State has effectively barred his recourse to a competent court or tribunal in Jamaica for protection against acts that potentially violate his fundamental rights under the Constitution of Jamaica and under the Convention. As a consequence, the State has failed to fulfill its obligations under Article 25 of the Convention in respect of Mr. Aitken.

151.  Accordingly, the Commission concludes that the State has failed to respect Mr. Aitken’s rights under Article 8(1) of the Convention by denying him an opportunity to challenge the circumstances of his trial, conviction and sentencing under the Constitution of Jamaica in a fair hearing.  The Commission also concludes under the present circumstances that the State has failed to provide Mr. Aitken with 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 the state concerned or by the Convention, and has therefore violated his rights to judicial protection under Article 25 of the Convention.

152.   In light of the above conclusions, the Commission does not consider it necessary to determine whether the State is responsible for a violation of Article 24 of the Convention in relation to Mr. Aitken’s denial of recourse to a Constitutional Motion in Jamaica.

V.      PROCEEDINGS SUBSEQUENT TO REPORT 117/01

          153.   The Commission examined this case in the course of its 113^th regular session and on October 15, 2001 adopted Report N° 117/01 pursuant to Article 50 of the American Convention.

          154.   On October 25, 2001, the Commission transmitted Report N° 117/01 to the State and requested that the Government of Jamaica inform the Commission within two months as to the measures adopted to comply the recommendations made to resolve the situation denounced.

155.   As of December 25, 2001, the date of expiration of the prescribed two-month period, the Commission had not received a response from the State to Report N° 117/01.

          156.   Of pertinence to the issues raised in the present case, on June 21, 2002 the Inter-American Court of Human Rights issued its judgment in the Case of Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago. [61] In its judgment, the Court found, inter alia, that the mandatory death penalty under Trinidad and Tobago’s Offenses Against the Person Act of 1925 violated the victims’ right to life under Articles 4(1) and 4(2) in conjunction with Article 1(1) of the Convention, because it “automatically and generically mandates the application of the death penalty for murder and disregards the fact that murder may have varying degrees of seriousness,” and “prevents a judge from considering the basic circumstances in establishing the degree of culpability and individualizing the sentence since it compels the indiscriminate imposition of the same punishment for conduct that can be vastly different.” [62]

VI.      CONCLUSIONS

The Commission, based on the foregoing considerations of fact and law, and in the absence of a response from the State to Report N° 117/01, ratifies its conclusions that:

157.   The State is responsible for violating Articles 4(1), 5(1), 5(2) and 8(1) of the Convention in respect of Mr. Aitken, in conjunction with violations of Articles 1(1) and 2 of the Convention, by sentencing him to a mandatory death penalty.

158.   The State is responsible for violating Article 4(6) of the Convention in respect of Mr. Aitken, in conjunction with violations of Articles 1(1) and 2 of the Convention, by failing to provide him with an effective right to apply for amnesty, pardon or commutation of sentence.

159.   The State is responsible for violating Articles 5(1) and 5(2) of the Convention in respect of Mr. Aitken, in conjunction with violations of Article 1(1) of the Convention, by reason of his conditions of detention.

          160.   The State is responsible for violating Articles 8(1) and 25 of the Convention in respect of Mr. Aitken, in conjunction with violations of Article 1(1) of the Convention, by reason of the denial to Mr. Aitken of recourse to a Constitutional Motion for the determination of his rights under domestic law and the Convention in connection with the criminal proceedings against him.

          161.   The State is not responsible for violations of Articles 4 or 8 of the Convention in connection with the adequacy of his legal representation at trial.

          VII.     RECOMMENDATIONS

Based on the analysis and the conclusions in the present report,

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS REITERATES THE FOLLOWING RECOMMENDATIONS TO THE STATE OF JAMAICA:

1.       Grant Mr. Aitken 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 contravention of the rights and freedoms guaranteed under the Convention, including and in particular Articles 4, 5 and 8;  

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

4.       Adopt such legislative or other measures as may be necessary to ensure that the conditions of detention in which Mr. Aitken is held comply with the standards of humane treatment mandated by Article 5 of the Convention;

5.       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 Convention and the right to judicial protection under Article 25 of the Convention are given effect in Jamaica in relation to recourse to Constitutional Motions in accordance with the Commission’s analysis in this report.

VIII.    PUBLICATION

162.   On March 18, 2002, the Commission transmitted the content of this report, adopted as Report Nº 31/02 pursuant to Article 51 of the Convention, to the State and to the Petitioners pursuant to Article 51(2) of the Convention and granted the State a period of one month within which to inform the Commission of the measures taken to comply with the Commission's recommendations. The State failed to present a response within the time limit prescribed by the Commission.

163.   Based upon the foregoing considerations, and in the absence of a response by the State to Report Nº 31/02, the Commission in conformity with Article 51(3) of the American Convention and Article 48 of its Regulations decides to ratify the conclusions and reiterate the recommendations in this Report, to make this Report public, and to include it in its Annual Report to the General Assembly of the Organization of American States. The Commission, according to the norms contained in the instruments which govern its mandate, will continue evaluating the measures adopted by the State of Jamaica with respect to the above recommendations until they have been complied with by Jamaica.

Done and signed in the city of Washington, D.C., U.S.A., on the 21^st day of the month of October 2002. (Signed): Juan E. Méndez, President; Marta Altolaguirre, First Vicepresident; José Zalaquett, Second Vicepresident; Robert K. Goldman, Julio Prado Vallejo, Clare K. Roberts and Susana Villarán, Commissioners.

  continued...

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