REPORT Nº 76/02

CASE 12.347

DAVE SEWELL

JAMAICA

December 27, 2002

 

 

I.          SUMMARY

 

1.          On November 20, 2000, the Inter-American Commission on Human Rights (the “Commission") received a petition from Mr. Saul Lehrfreund of the London, United Kingdom law firm of Simons Muirhead & Burton (the “Petitioners") on behalf of Dave Sewell, a death row inmate in the State of Jamaica ("Jamaica" or the “State").

 

          2.          The petition alleged that the State tried and convicted Mr. Sewell for the crime of capital murder and sentenced him to death by hanging on April 6, 1998 pursuant to Jamaica's Offences Against the Person Act, 1864, as amended by the Offences Against the Person (Amendment) Act 1992.  The petition also alleged that the State is responsible for violating Mr. Sewell’s rights under the American Convention on Human Rights (the “Convention”) in connection with the criminal proceedings against him based upon the following grounds:

 

(a) violations of Articles 4(1), 4(2), 5(1), 5(2) and 8(1) of the Convention, relating to the mandatory nature of the death penalty imposed upon Mr. Sewell;

 

(b) violations of Articles 5(1) and 5(2) of the Convention, relating to Mr. Sewell’s conditions of detention and the method of execution in Jamaica;

 

(c) violations of Articles 7(5) and 8(1) of the Convention, relating to the delay in trying Mr. Sewell;

 

(d) violations of Articles 24 and 25 of the American Convention, relating to Mr. Sewell’s inability to pursue a Constitutional Motion in Jamaica.

 

3.          In its response to the petition, the State denied that the manner in which the death penalty is imposed in Jamaica contravenes Article 4(2) of the Convention and contended that the exercise of the prerogative of mercy in Jamaica is sufficient to take the individual circumstances of an offender into account in imposing a death sentence.  The State also denied that conditions of detention at St. Catherine District Prison in Jamaica fail to meet international standards of humane treatment, and asserted that Articles 24 and 25 of the Convention do not place an obligation on State Parties to provide legal aid for Constitutional Motions.  With respect to the Petitioners’ allegations relating to the delay in trying Mr. Sewell, the State indicated that it would investigate the facts surrounding the allegation and submit the results thereof to the Commission.

 

4.          The Commission had not previously made an admissibility determination pursuant to Articles 46 and 47 of the Convention concerning the complaints presented in Mr. Sewell’s petition.  After having considered the matter, the Commission has decided to declare admissible the claims presented on behalf of Mr. Sewell.

 

5.          In addition, upon consideration of the merits of Mr. Sewell’s complaint, the Commission reached the following conclusions:

 

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

 

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

 

(c) The State is responsible for violating Articles 7(5) and 8(1) of the Convention in respect of Mr. Sewell, in conjunction with violations of Article 1(1) of the Convention, by reason of the delay in trying Mr. Sewell;

 

(d) the State is responsible for violating Articles 8(1) and 25 of the Convention in respect of Mr. Sewell, in conjunction with violations of Article 1(1) of the Convention, by reason of the denial to Mr. Sewell 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.

 

          II.          PROCEEDINGS BEFORE THE COMMISSION

 

A.          Petition and Observations

 

6.          Following the receipt of Mr. Sewell’s petition on November 20, 2000, the Commission opened Case 12.347 and transmitted the pertinent parts of the petition to the State by communication dated December 4, 2000, with a request that the State supply information with respect to the communication within 90 days as established in the Commission's former Regulations. [1]

 

7.          By communication dated February 2, 2001, which was received by the Commission on February 6, 2001, the Commission received information from the State respecting Mr. Sewell’s petition.  By note dated February 12, 2001 the Commission transmitted the pertinent parts of the State's observations to the Petitioners, with a response requested within 30 days.

 

8.          By letter dated March 12, 2001 and received by the Commission on the same date, the Petitioners delivered a reply to the State's observations on Mr. Sewell’s petition.  The Petitioners’ reply included a copy of an affidavit sworn by Mr. Sewell on February 6, 2001.  In a note dated March 13, 2001, the Commission transmitted the pertinent parts of the Petitioners' reply to the State, with a response requested within 30 days.

 

9.          As of the date of the present report, no further written observations had been received by the Commission from the parties in this matter.

 

B.          Precautionary Measures

 

10.          Contemporaneously with the transmission of the pertinent parts of the petition in this matter to the State, the Commission requested pursuant to Article 29(2) of its former Regulations that the State take precautionary measures to stay Mr. Sewell’s execution pending the Commission’s investigation of the allegations in the petition and the threat of irreparable harm to Mr. Sewell no longer persisted.  This request was made on the basis that if the State executed Mr. Sewell before the Commission had an opportunity to examine his case, any eventual decision would be rendered moot in terms of available remedies and irreparable harm would be caused to Mr. Sewell.  The Commission did not receive a response from the State to its request for precautionary measures.

 

C.          Friendly Settlement

 

11.          By communications dated January 15, 2002 to the Petitioners and to the State, the Commission placed itself at the disposal of the parties, with a view to reaching a friendly settlement pursuant to Article 48(1)(f) of the Convention on the basis of respect for the human rights recognized therein.  The Commission also requested that the parties provide the Commission with a response to the Commission's offer within 30 days of receipt of the communication, in the absence of which the Commission would continue with consideration of the matter.

 

12.          In a note dated February 14, 2002, which was received by the Commission on the same date, the Petitioners informed the Commission that they were not willing to enter into a friendly settlement, in view of the fact that Mr. Sewell was under sentence of death awaiting execution.  Subsequently, in a communication dated February 27, 2002, which was received by the Commission on the same date, the State informed the Commission that it was of the view that there were no outstanding issues that would necessitate friendly settlement discussions, and urged the Commission to continue with its consideration of the case.

 

13.          In light of the parties’ responses to the Commission’s January 15, 2002 communication, the Commission considered that a friendly settlement of the matter was not possible and decided to continue to process the matter in accordance with the provisions of the American Convention and the Commission’s Rules of Procedure.

III.          POSITIONS OF THE PARTIES

 

A.          Position of the Petitioners

 

1.          Background to the Case

 

14.          According to the record in this case, Dave Sewell was arrested and charged with the June 11, 1993 murder of Errol Cann, a businessman in Spanish Town, St. Catherine, in the course or furtherance of a robbery.  Mr. Sewell was subsequently tried for the murder from March 28 to April 12, 1995, together with his co-Defendants Dean McTaggart and Kevin Geddes.  On April 12, 1995, Mr. Sewell and Mr. McTaggart were convicted of capital murder and sentenced to death by hanging, while Mr.  Geddes was convicted of non-capital murder and sentenced to 25 years imprisonment.  All three Defendants subsequently appealed their convictions and sentences, and Mr. Sewell’s appeal was allowed by the Court of Appeal of Jamaica on July 31, 1996 and a re-trial was ordered, while his co-Defendants’ appeals were dismissed.

 

15.          On April 6, 1998 in the Home Circuit Court, Kingston, Jamaica, Mr. Sewell was again convicted of the crime of capital murder and sentenced to death.  Mr. Sewell again appealed his conviction and sentence, and on July 30, 1999 the Court of Appeal of Jamaica dismissed his appeal.  Mr. Sewell then lodged a petition for Special Leave to Appeal as a Poor Person to the Judicial Committee of the Privy Council on May 8, 2000, and the Privy Council dismissed his petition on July 17, 2000.

 

16.          The prosecution’s case was based in part upon the evidence of one witness, Dave Morris, who claimed to have grown up with Mr. Sewell and was the only witness to implicate Mr. Sewell in the crime.  In particular, Mr. Morris claimed that on the night before the murder he had been kidnapped by a friend named Toushan and taken to a one room house where he remained overnight.  He also claimed that the next morning he assisted Mr. Sewell and another man named German to deliver a hard cart to Martin Street and was then told to leave.  He pretended to leave but hid instead in order to view what was happening.

 

17.          Also according to the prosecution, at some time after 9:00 am on June 11, 1993, the deceased was sitting in the front passenger seat of a motor car driven by his employee, Dorothy Shim.  They were driving along Martin Street in Spanish Town on the way to the bank.  A female clerk was sitting in the back of the car with a bag containing over half a million dollars.  Mrs. Shim saw a boy struggling with a cart in the middle of the road and stopped the car.  A man then appeared in front of the car pointing a gun in the direction of the car, and several men also appeared behind the car on its left side.  One of these men, who was later identified by Mr. Morris as Mr. Sewell, drew a long gun from a shopping bag containing flowers.  Blood was seen coming from the deceased’s mouth, who told Mrs. Shim that he had been shot in the heart and mouth.  The deceased’s cause of death was a shot gun wound to the chest.  Mr. Sewell then ran from the scene while one of the accomplices pushed himself part way into the car while it was moving but eventually fell.  It appears that during this period the money in the clerk’s possession was stolen as it was missing by the time Mrs. Shim had driven the car to the hospital a few minutes away.

 

18.          Following the shooting, Mr. Morris also fled the scene and the next time he saw Mr. Sewell was when he pointed him out in a cell at the Central Police Station on August 19, 1993, after Mr. Sewell’s arrest on July 9, 1993.  The prosecution alleged that Mr. Sewell sought to avoid being pointed out in a previous identification parade held on July 27, 1993 by arranging with another prison, Christopher Baker, to stand in his place.

 

19.          In his defense, Mr. Sewell made an unsworn statement in which he declared that he was innocent and that he did not know the witness Morris and did not grow up with him.  In addition, Mr. Sewell claimed that at the time of the incident he was engaged at work at a construction site at Naggo’s Head Hellshire, that he had worked there for some minutes before 8:00 a.m. until noon and had heard the news of Cann’s death on the radio just before lunch in the site canteen.  Also according to Mr. Sewell, he had been on the identification parade on July 27 but had not been pointed out, and the defense called an attorney-at-law, Seymour Stewart, who said that he had watched the parade on July 27, 1993 an, that both Baker and Sewell were on the parade but had changed clothes, and that Morris had failed to identify Mr. Sewell.

 

2.          Position of the Petitioners on Admissibility

 

20.          The Petitioners in Mr. Sewell’s case contend that his petition is admissible.  In particular, the Petitioners claim that Mr. Sewell has exhausted all available domestic remedies because his lack of private means and unavailability of legal aid prohibit him from pursuing a Constitutional Motion before the Supreme Court of Jamaica, and that he has otherwise pursued any remedies that may be available to him. [2]

 

21.          The Petitioners also allege that the Constitution of Jamaica is drafted so as to immunize from attack laws and punishments which were lawful before independence, including legislation providing for the mandatory death penalty.  As a consequence, the Petitioners claim that it is not possible to argue in any domestic court that the death penalty is unconstitutional because of its mandatory nature or because it is cruel, unless the way it is to be carried out would not have been lawful before independence.  The Petitioners make similar submissions in respect of the method of execution in Jamaica.

 

22.          Further, according to the Petitioners, the subject matter of Mr. Sewell’s case has not been submitted for examination under any other procedure of international investigation or settlement.

 

3.          Position of the Petitioners on the Merits

 

a.       Articles 4 and 5 of the Convention - Mandatory Nature of the Death Penalty

 

23.          The Petitioners allege that the State acted contrary to Articles 4(1), 4(2), 5(1), 5(2) and 8(1) of the American Convention by sentencing Mr. Sewell to a mandatory death penalty for the crime of capital murder.  In particular, the Petitioners argue that the imposition of the death penalty in Mr. Sewell’s case violates the American Convention because it is not reserved for the most serious offenses as required by Article 4(2) of the Convention and is contrary to Article 4(1) of the Convention, and because executing an individual without an individualized sentencing hearing is cruel and violates his rights under Articles 5(1) and 5(2) of the Convention.

 

24.          In making these submissions, the Petitioners emphasize that, while the Convention does not prohibit the death penalty, and that while their argument is not intended to constitute an attack upon the legality of the death penalty under domestic or international law, this does not relieve a State of its obligation to administer capital punishment in a way that is neither arbitrary nor cruel. 

 

          25.          The Petitioners first argue that the requirement under Article 4(2) of the Convention that the death penalty be imposed only for the most “serious offenses” should be interpreted so as to encompass more than the elements of a criminal offense, and in particular should be interpreted to require consideration of all factors of a criminal offense, including those referable to an individual applicant.  In this regard, the Petitioners submit that as matter of common sense, it is not possible to say that the murder of a prison officer is more serious than and will always be more serious than, for example, the murder of a child.  It therefore follows, argue the Petitioners, that the mandatory death penalty produces arbitrary results, as there is no mechanism whereby like cases are treated alike and unlike cases distinguished. .

 

26.          In addition, it is argued on behalf of Mr. Sewell that the mandatory death penalty violates the prohibition against cruel and unusual punishment or treatment under Article 5 of the Convention.  The Petitioners suggest in this respect that Article 5 of the Convention is based on the idea that each human being has rights that must be respected even when punishment is to be inflicted, and that to order the execution of a person without consideration of an individual’s status violates these principles.

 

27.          In support of their position that the mandatory death penalty for capital murder contravenes the American Convention, the Petitioners refer to decisions of the highest courts of several common law countries, including the United States of America [3] and India, [4] where the death penalty has been retained.  They also rely upon previous decisions by this Commission in cases such as Haniff Hilaire v. Republic of Trinidad and Tobago, Report Nº 66/99 (21 April 1999) and Rudolph Baptiste v. Grenada, Report Nº 38/00 (April 13, 2000).  According to the Petitioners, these authorities support the proposition that Mr. Sewell’s rights under Articles 4(1), 5(1), 5(2) and 8 of the Convention are contravened because his right to life has been interfered with by a sentence of death imposed automatically as a consequence of his conviction for capital murder irrespective of the circumstances. Mr. Sewell’s sentence of death is accordingly cruel, inhuman and degrading and an arbitrary and disproportionate punishment which cannot be a justification for depriving some one of their life.

 

28.          In their March 12, 2001 reply to the State’s February 2, 2001 observations, the Petitioners made several additional arguments.  They submitted in particular that the onus is not on Mr. Sewell to demonstrate an acceptable form of execution, but rather that if Mr. Sewell succeeds on this ground, the duty is on the State Party to carry out the sentence of the Court in such a way that it is compatible with the rights under the Convention.

         

b.       Article 5 of the Convention - Conditions of Detention and Method of Execution in Jamaica

 

          i.          Conditions of Detention

 

29.          The Petitioners allege that the conditions in which Mr. Sewell has been detained by the State constitute a violation of his rights under Article 5 of the Convention to be free from cruel, inhuman or degrading punishment or treatment.  In their submissions, the Petitioners provide information as to the general conditions of detention facilities in Jamaica, as well as information regarding the particular conditions of detention experienced by Mr. Sewell

 

30.          With respect to the conditions of detention facilities in Jamaica generally, the Petitioners refer to reports prepared by various governmental and non-governmental organizations respecting the State's prison conditions.  These include Americas Watch: Prison Conditions in Jamaica (1990); Jamaica Prison Ombudsman: Prison and Lock Ups (1983); Americas Watch: Death Penalty, Prison Conditions and Prison Violence (1993); Jamaica Council for Human Rights: A Report on the Role of the Parliamentary Ombudsman in Jamaica (Summer 1994); and Amnesty International: Proposal for an Inquiry into Death and Ill-treatment of Prisoners in St. Catherine's District Prison (1993).  These reports provide information regarding the physical conditions of the prisons and prisoners, the treatment of prisoners by prison staff, and the status of medical, educational and work facilities and programs in various prisons and lock up facilities in Jamaica.

 

31.          According to the Petitioners, these reports indicate that detention facilities in Jamaica are poor and have not been remedied by the Jamaican government.  They cite, for example, the conclusion by Americas Watch in 1993 that “[t]he conditions in the prisons and lock ups have continued to be extremely poor and in violation of international standards for as long as Americas Watch have been investigating them…”

 

32.          With respect to the conditions of capital prisoners in particular, the Petitioners indicate that all death row inmates in Jamaica are situated on death row in St. Catherine’s District Prison, which was built in the 18^th Century and was formerly a slave market.  The Petitioners submit that generally speaking, death row inmates are deprived of a mattress or other bedding or furniture, that inmates’ cells suffer from inadequate sanitation, ventilation and light, and that prisoners experience poor standards of personal hygiene and are given diets with substandard levels of protein.  In addition, the Petitioners claim that inadequate health and psychiatric care is available to prisoners, and that inmates condemned to death spend long periods in their cells, have no work or education facilities, and are often the subject of threats, beating and other ill-treatment by prison guards.  The Petitioners further claim that any complaint mechanisms that exist in the facilities do not adequately address prisoners’ grievances.

 

33.          With respect to the conditions of detention alleged to have been experienced by Mr. Sewell personally, the Petitioners claim, based in part on an affidavit sworn by Mr. Sewell on February 6, 2001, that his post-conviction detention on death row has subjected him to cruel, inhuman or degrading punishment or treatment contrary to Article 5 of the Convention.

 

34.          In particular, Mr. Sewell claims that he has been on death row for a total of 3 years and 10 months in an 8 foot by 5 foot cell where he is constantly held in solitary confinement.  He has no furniture except for a water jug and a bucket which he uses as a toilet and for all other sanitary purposes and which is only emptied once a day.  He also claims that there is a gutter in front of his cell that is constantly full of stagnant water and that he sleeps and eats in unhygienic conditions.  Moreover, Mr. Sewell claims that he is locked in his cell for 23 ½ hours per day and is only allowed out of his cell for approximately 30 minutes per day when he is expected to empty his slop pail, bathe and take exercise.  His cell is also said to have inadequate ventilation and is therefore hot and uncomfortable, and the food provided to him is “deplorable and inadequate.”

 

35.          In light of these conditions of detention, the Petitioners contend that the State is responsible for violations of Mr. Sewell’s rights under Article 5 of the Convention.  The Petitioners rely in this connection upon several provisions of the United Nations Standard Minimum Rules for the Treatment of Prisoners.  These include Article 10, which states that all accommodation provided for the use of prisoners shall "meet all requirements of health, due regard being paid to climatic conditions and particularly cubic content of air, minimum floor space, lighting, heating and ventilation." [5]   The Petitioners also cite several comments and decisions of the UN Human Rights Committee and the European Court of Human Rights regarding humane treatment in the context of prison conditions.  These include the UN Human Rights Committee’s General Comment on Article 10(1) of the International Covenant on Civil and Political Rights, which states in part that the “humane treatment and respect for the dignity of all persons deprived of their liberty is a basic standard of universal application which cannot depend entirely on material resources.” The Petitioners refer additionally to the Greek Case, [6] in which the European Court of Human Rights found that detention conditions may amount to inhuman treatment, where those conditions involve overcrowding, inadequate toilet and sleeping arrangements, inadequate food and recreation, and incommunicado detention.

 

36.          Based upon these submissions, the Petitioners argue that Mr. Sewell’s treatment has violated his right under Article 5 of the Convention to be free from cruel, inhuman or degrading treatment or punishment.

 

37.          In their March 12, 2001 response to the State’s February 2, 2001 observations in this matter, the Petitioners contend that the affidavits relied upon by the State are the same affidavits relied upon by Jamaica in the case of Neville Lewis before the domestic courts in Jamaica.  The Petitioners argue that the affidavits do not specifically respond to Mr. Sewell’s complaint as set out in his affidavit of February 6, 2001.  In particular, they note that the affidavits relied upon by Jamaica are the same affidavits relied upon by Jamaica in the case of Neville Lewis before the Judicial Committee of the Privy Council, and claim that the Judicial Committee of the Privy Council did not accept the affidavits to refute the Appellants’ allegations that the treatment in prison and the prison conditions in which the Appellants were detained amounted to inhumane or degrading treatment. According to the Petitioners, the Privy Council held that the allegations of inhuman prison conditions should have been determined by the Supreme Court and Court of Appeal in Jamaica by hearing oral evidence and that it was not open to the courts to reject the allegations and disbelieve the appellants based upon affidavit alone.  The Petitioners therefore argue that the evidence relied upon by the State does not refute Mr. Sewell’s complaint that his rights under Article 5 of the Convention have been and are being violated. 

 

          ii.          Method of Execution in Jamaica

 

38.          The Petitioners argue that the execution of the death sentence by hanging, as provided for under Jamaican law, constitutes cruel and inhuman treatment or punishment per se in violation of Articles 5(1) and 5(2) of the Convention.  In this regard, the Petitioners submit that whereas Article 4(2) 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. [7]

 

          39.          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. Sewell’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. Sewell 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.

 

          40.          In the Petitioners’ submission, the execution of Mr. Sewell 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.

 

c.       Articles 7(5) and 8(1) of the Convention - Right to be Tried within a Reasonable Time

 

41.          The Petitioners allege violations of Articles 7(5) and 8(1) of the Convention on the ground that Mr. Sewell was denied the right to be tried within a reasonable time.  They claim that Mr. Sewell was detained by authorities in Jamaica from the date of his arrest until the date of his final appeal to the Judicial Committee of the Privy Council.  In this regard, the Petitioners provided the following chronology of events in Mr. Sewell’s criminal proceedings:

 

June 11, 1993	Death of Errol Cann
July 9, 1993	Mr. Sewell was arrested
August 19, 1993	Mr. Sewell was charged
March 28-April 12, 1995	Mr. Sewell was tried before Panton J. in the Circuit Division of the Gun Court in Kingston
July 15, 1996	Mr. Sewell’s first appeal was argued before the Judicial Committee of the Privy Council
July 31, 1996	Privy Council delivered its judgment in Mr. Sewell’s first appeal
January 13, 20, 1997	Mr. Sewell’s second trial was listed but the case was not reached
March 3, 1997	Mr. Sewell’s second trial was listed again but again was not reached and was adjourned to April 28, 1997
April 28, 1997	Mr. Sewell’s second trial did not commence because “representation to be settled.”
May 9, 1997	Mr. Sewell’s case was listed for mention; representation was now to be Mr. Delano Harrison and July 21, 1997 was proposed as the trial date
July 21, 1997	Mr. Sewell’s second trial was listed but defense counsel was “absent”
November 18, 1997	Trial date was set for December 17, 1997
December 17, 1997	Although counsel and witnesses were present, Mr. Sewell was not produced and the trial was adjourned to January 16, 1998
January 16, 1998	Mr. Sewell’s second trial was postponed at the request of the defense so that witnesses could be secured
March 24, 1998	Mr. Sewell’s second trial commenced and concluded on April 6, 1998 at the Home Circuit Court before Mcintosh J.

 

          42.          Based upon this chronology, the Petitioners allege that Mr. Sewell was subjected to a 4 year and 9 month delay in being brought to trial and that this period was unreasonable.  They also submit that even subtracting the timing for the adjournment in February 1999 because of difficulties over defense witnesses, the overall delay was still unconscionable in light of international standards and that Mr. Sewell has been denied the right to be tried within a reasonable time.

 

43.          The Petitioners also submit that the preponderance delay in Mr. Sewell’s case is attributable to the State and suggest that the evidence in Mr. Sewell’s case was not particularly complex.  In this regard, the Petitioners argue that the State has not offered any adequate explanation for the delay in bringing Mr. Sewell to trial.  They also allege that, while the right to a fair hearing can be substantiated by delay without proof of specific prejudice, the delay in Mr. Sewell’s case resulted in prejudice given that the conviction depended critically upon the evidence of an eye witness who would inevitably have had problems with his memory.

d.       Articles 24 and 25 of the Convention – Denial of Access to Constitutional Motions

 

44.          The Petitioners argue that the State does not provide legal aid for Constitutional Motions, and that this resulted in a denial to Mr. Sewell of access to court and a denial of effective remedies in violation of Articles 24 and 25 of the Convention.

 

45.          The Petitioners recognize that Article 25(1) of the Constitution of Jamaica provides individuals with the legal right to bring a Constitutional Motion before the Jamaican Supreme Court. [8] They argue, however, that notwithstanding this legal right, the remedy is not an effective one in all of the circumstances of the case because the costs of the proceedings are extremely high and beyond Mr. Sewell’s financial means, and because no legal aid is available for these motions.  Consequently, the Petitioners submit that the State's failure to provide legal aid for Constitutional Motions denies the victims access to the courts and hence to an effective remedy for violations of the Constitution or of the American Convention.  The Petitioners also submit in this regard that the principle of effective access to courts is even more indispensable in capital cases, where a defendant's life and liberty are at stake.

 

46.          In support of their arguments, the Petitioners cite decisions of other international human rights tribunals, such as the decision of the European Court of Human Rights in Airey v. Ireland [9] and the U.N. Human Rights Committee in Curry v. Jamaica, [10] for the proposition that individuals must be guaranteed effective access to courts in fact as well as in law, which may require legal assistance in the provision of legal aid.  The Petitioners claim that the unavailability of legal aid in Jamaica in fact deprives the victims of effective access to the courts, and that as a consequence the State is responsible for violations of Articles 24 and 25 of the Convention in respect of Mr. Sewell.

 

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