REPORT Nº 52/02*
MERITS
CASE 11.753
RAMÓN MARTINEZ VILLAREAL
UNITED STATES
October 10, 2002  

I.          SUMMARY  

1.          On May 16, 1997, the Inter-American Commission on Human Rights (the “Commission”) received a petition from the Center for Justice and International Law (the “Petitioners”) against the United States of America (the "State" or “United States”).  The petition was presented on behalf of Mr. Ramón Martinez Villareal, a Mexican national who is incarcerated on death row in Florence Prison in the State of Arizona.  The petition and information subsequently submitted in the case indicate that on April 27, 1983 Mr. Martinez Villareal was convicted of two counts of first degree murder and one count of first degree burglary, and was sentenced to death on May 20, 1983 for his murder convictions.  The initial petition also stated that Mr. Martinez Villareal was scheduled to be executed on May 21, 1997.  His execution has since been postponed on several occasions and as of the date of this report his death sentence had not yet been carried out.  

2.          The Petitioners have alleged that the State is responsible for violations of Mr. Martinez Villareal’s rights under Articles I, XVIII and XXVI of the American Declaration of the Rights and Duties of Man (hereinafter the "American Declaration"), because his attorney failed to provide him with effective representation, and because Mr. Martinez Villareal suffers from mental illness and was therefore incompetent to stand trial or to be sentenced to death, and remains incompetent to be executed.  The Petitioners have also alleged that the State is responsible for further violations of Mr. Martinez Villareal's rights under Articles I, XVIII and XXVI of the American Declaration because of the State’s failure to comply with its obligations under Article 36 of the Vienna Convention on Consular Relations.  Further, the Petitioners have alleged violations of Mr. Martinez Villareal's rights under Articles XVIII and XXVI of the Declaration as a consequence of the delay in the rendering of a final decision in his case.  Finally, the Petitioners claim violations of Mr. Martinez Villareal's right to equality before the law under Article II of the American Declaration because of the manner in which the death penalty is administered by states in the United States.  

3.          The State claims in response that the Vienna Convention on Consular Relations does not vest any private rights in a criminal defendant and that in any event the Mexican Government was in a position to know about Mr. Martinez Villareal’s case from news media and other sources.  As to the adequacy of Mr. Villareal’s legal representation, the State argues that domestic courts ultimately determined that Mr. Martinez Villareal was procedurally precluded from challenging the adequacy of his legal representation under domestic law because he failed to present the issue in his initial post-conviction review proceedings, with no acceptable cause for the default.  In relation to the Petitioners' contentions respecting Mr. Martinez Villareal's mental competence to be tried and executed, the State argues principally that these allegations are flawed because they assume as true a fact which has never been proven, namely that Mr. Martinez Villareal had mental problems around the time of his trial.  With respect to the Petitioners' allegations respecting the delay in Mr. Martinez Villareal's criminal proceedings, the State contends that such delays are attributable to Mr. Martinez Villareal, and that in any event, arguments that he suffered unduly from delays in his case cannot be grounded in U.S. law. Finally, in respect of the Petitioners' alleged violations of the right to equality under Article II of the Declaration, the State argues that this demonstrates a misunderstanding of the American legal system, as all states in the United States that choose to utilize capital punishment are equally bound to meet the standards for such cases established by the U.S. Supreme Court.  

4.          In Report Nº 108/00 adopted by the Commission on December 4, 2000, the Commission decided to admit the claims raised in the petition in respect of Articles I, II, XVIII and XXVI of the American Declaration and to continue with the analysis of the merits of the case.  

5.          As set forth in this Report, having examined the information provided by the parties and their contentions on the merits of the case, the Commission concludes that the United States is responsible for violations of Articles XVIII and XXVI of the American Declaration in the trial, conviction and sentencing to death of Ramon Martinez Villareal by reason of the State’s failure to inform Mr. Martinez Villareal of his right to consular assistance under Article 36(1)(b) of the Vienna Convention on Consular Relations.  The Commission also concludes that, should the State execute Mr. Martinez Villareal pursuant to the criminal proceedings at issue in this case, the State will perpetrate a grave and irreparable violation of the fundamental right to life under Article I of the American Declaration.  

II.          PROCEEDINGS BEFORE THE COMMISSION  

6.          Upon receipt of the Petitioners' petition, the Commission, by note dated May 19, 1997 advised the State that the Commission had been informed of Mr. Martinez Villareal's May 21, 1997 execution date, and requested that the State stay the execution for humanitarian reasons until the Commission had an opportunity to investigate the matter, or alternatively to commute Mr. Martinez Villareal's death sentence to one of life imprisonment.  

7.          On May 20, 1997, the Commission decided to open Case Nº 11.753 and transmitted the pertinent parts of the petition to the Government of the United States by means of a note of the same date.  The Commission requested the State's observations within 90 days as established by the Commission's prior Regulations. [1]   Also by note dated May 20, 1997 the Commission informed the Petitioners that a case had been opened in respect of their petition, that the State had been advised of the situation set forth in their communication, and that the Commission had requested that the State stay Mr. Martinez Villareal's execution until it had the opportunity to investigate the allegations in the petition, or alternatively that the State commute his death sentence.  

8.          By communication dated July 8, 1997 the Petitioners delivered to the Commission further information respecting Mr. Martinez Villareal's situation.  In a note dated July 22, 1997, the Commission transmitted the pertinent parts of the Petitioners' July 8, 1997 observations to the State, with a response requested within 90 days.  

9.          In a note dated December 18, 1997 the State delivered to the Commission observations on the Petitioners' July 8, 1997 observations.  The State also provided observations on the substance of the Petitioners' petition.  The pertinent parts of the State's response were transmitted to the Petitioners by note dated January 7, 1998 with observations requested within 30 days.  In a letter dated March 19, 1998 the Petitioners requested that the deadline for their observations be extended until March 29, 1998.  

10.          By communication dated March 30, 1998 the Petitioners delivered to the Commission observations respecting the State's December 18, 1997 communication.  In a note dated March 31, 1998, the Commission transmitted the pertinent parts of the Petitioners' observations to the State, with a response requested within 30 days.   

11.          The State responded by note dated September 8, 1998, in which it provided additional information on the admissibility of Mr. Martinez Villareal's petition.  By communication dated November 25, 1998 the Commission transmitted the pertinent parts of the State's observations to the Petitioners, with a response requested within 30 days.  

12.          In a communication dated January 20, 1999 the Petitioners delivered to the Commission a response to the State's September 8, 1998 observations.  By note dated February 5, 1999 the Commission transmitted the pertinent parts of the Petitioners' January 20, 1999 observations to the State, with a response requested within 30 days.  

13.          By note dated October 6, 1999 the State submitted to the Commission observations on the Petitioners' January 20, 1999 response.  In a note dated October 20, 1999 the Commission transmitted the pertinent parts of the State's observations to the Petitioners, with a response requested within 30 days.  

14.          On November 19, 1999 the Petitioners delivered observations on the State's October 6, 1999 response.  The Commission transmitted the Petitioners' observations to the State in a letter dated January 31, 2000 and requested a response within 30 days.  

          15.          In a communication dated August 14, 2000 to the Petitioners, the Commission requested that the Petitioners provide the Commission with information concerning certain aspects of Mr. Martinez Villareal's case, with a response requested within 30 days.  The Commission subsequently reiterated its August 14, 2000 request for information in a further note to the Petitioners dated October 24, 2000.  By letter dated November 13, 2000 the Petitioners responded to the Commission's previous requests for information.  

          16.          On December 4, 2000, during its 109^th period of sessions, the Commission adopted Report N° 108/00 in which it decided to admit the claims in Mr. Martinez Villareal’s petition in respect of Articles I, II, XVIII and XXVI of the American Declaration. The Commission transmitted the report to the parties in a communication dated December 8, 2000 in which the Commission also placed itself at the disposal of the parties with a view to reaching a friendly settlement of the case pursuant to Articles 18 and 20 of the Commission’s Statute.  The Commission requested that the parties provide the Commission with a response within 30 days if they were interested in accepting the Commission’s offer.  As of the date of the present report, the Commission had not received any further information or observations from the Petitioners or the State concerning the Commission’s friendly settlement offer or otherwise.   

17.          By communication dated December 8, 2000 the Commission also transmitted a copy of admissibility Report N° 108/00 to the United Mexican States and requested pursuant to Articles 18(d) and 20(b) of the Commission’s Statute any information that Mexico might have respecting Mr. Villareal’s claim that the United States did not comply with Article 36 of the Vienna Convention on Consular Relations.  As of the date of the present report, the Commission had not received a response from the State of Mexico to the Commission’s December 8, 2000 communication.  

III.          POSITIONS OF THE PARTIES  

A.          Position of the Petitioners  

18.          In their initial petition and subsequent observations, the Petitioners provided information concerning the procedural history of Mr. Martinez Villareal's criminal proceedings.  In this connection, they indicate that in April 1983 the Santa Cruz Superior Court of Arizona found Mr. Martinez Villareal guilty of two counts of first degree murder and one count of first degree burglary, and sentenced him to death for the murder convictions on May 20, 1983.  The Arizona Supreme Court subsequently dismissed Mr. Martinez Villareal's appeals from his conviction and sentence.  

19.          The Petitioners also indicate that Mr. Martinez Villareal brought several petitions for post-conviction relief in the Arizona state courts and in the U.S. federal courts, as outlined in the Commission’s admissibility Report N° 108/00 in this matter. [2] These proceeding were ultimately unsuccessful.  

20.          The Petitioners raise five claims of violations of Mr. Martinez Villareal’s rights in their petition: the failure of the State to provide notice of consular assistance under Article 36(1)(b) of the Vienna Convention on Consular Relations; [3] the failure of the State to provide and guarantee effective assistance of counsel to Mr. Martinez Villareal; the failure of the State to take into account Mr. Martinez Villareal's mental competence at the guilt/innocence and penalty phases of his criminal proceeding and its obligation not to execute Mr. Martinez Villareal due to his mental incompetence; the delay in Mr. Martinez Villareal's execution; and the unequal application of the death penalty throughout the United States.   

1.          Notification under the Vienna Convention on Consular Relations  

21.          The Petitioners allege first that in its Advisory Opinion OC-16/99 of October 1, 1999 [4] the Inter-American Court of Human Rights determined that Article 36(1)(b) of the Vienna Convention on Consular Relations vests an individual right in a detained foreign national to information concerning consular assistance.  The Court concluded further that a State's failure in its obligations in this regard affects the guarantees of due process, and that the application of the death penalty under such conditions would constitute an arbitrary taking of an individual's life.  

22.          The Petitioners assert in this regard that the obligation of a state party to the Vienna Convention on Consular Relations to comply with the notification requirements under Article 36 of that treaty was acknowledged by the United States in its brief to the Inter-American Court in the proceedings pertaining to Advisory Opinion OC-16/99, where, according to the Petitioners, the U.S. stated that the lack of notification may result in a violation of rights.  The United States is said to have concluded that relevant factors in this regard include the ability of the detained national to comprehend English, the quality and character of the legal representation provided and the need for and presence of interpreters and other forms of assistance. [5]    

23.          The Petitioners also claim that the State has not denied that it failed to provide Mr. Martinez Villareal with notice of his rights under Article 36 of the Vienna Convention on Consular Relations.  They point out, however, that the State has steadfastly asserted that Article 36 of the Vienna Convention does not vest a right in the detained foreign national and has shown by its practice that it will not recognize such a right or provide a remedy for its alleged violation.  

24.          The Petitioners assert that the purpose of Article 36 of the Vienna Convention on Consular Relations is threefold, to assist the defendant in his navigation through a foreign and unfamiliar court system, to assist the defense attorney in gathering information from the defendant’s home country, and to oversee the proceedings to ensure that the notions of fundamental fairness and trial procedure are not violated.  In this context, the Petitioners argue that the state of Arizona had an affirmative duty to inform Mr. Martinez Villareal that as a Mexican National he had the right to consult with the Mexican Consulate in the earliest stages of his proceedings, and that the state of Arizona had an affirmative duty to expressly inform the Mexican Consulate that a Mexican National was to be tried for murder.  

25.          Further, the Petitioners contend that particular prejudice resulted in Mr. Martinez Villareal's case as a result of the violation of the Vienna Convention on Consular Relations, as he did not speak or understand English at the time of his trial, was represented by counsel who was by that counsel’s own admission seriously incompetent, and was not provided with translation during his initial hearings.  The Petitioners assert in particular that Mr. Martinez Villareal did not understand which people in the court room comprised the jury or what the purpose of the jury was, and that the voir dire proceedings were not translated into a language that he could understand.  They also claim that the defense attorney did not contact Mr. Martinez Villareal’s family in Mexico and was generally severely inexperienced.  

26.          On this basis, the Petitioners argue that had Mr. Martinez Villareal been informed of his right to consult with the consulate, it would have been possible for the consulate to become involved at the earliest stages of the proceedings, aiding Mr. Martinez Villareal’s defense counsel and protecting his due process rights.  Also on this basis, the Petitioners assert that, by the United States’ own standards as articulated during the OC-16 proceedings, lack of notification in Mr. Martinez Villareal’s case resulted in a violation of his due process rights that should be addressed, but that, according to the Petitioners, the United States will not acknowledge or remedy.  

27.          On this basis, the Petitioners allege that the State should be found in violation of Mr. Martinez Villareal’s rights to a fair trial and to due process under Articles XVIII and XXVI of the American Declaration and that application of the death penalty under these circumstances would arbitrarily deprive Mr. Martinez Villareal of his right to life contrary to Articles I and XXVI of the Declaration.  

2.          Adequacy of Legal Representation  

28.          The Petitioners claim that Mr. Martinez Villareal received ineffective assistance of counsel during his criminal proceedings, contrary to Articles I, II, XVIII and XXVI of the American Declaration.  The Petitioners allege in particular that Mr. Villareal’s trial attorney was inexperienced and failed to investigate Mr. Martinez Villareal's mental competence, despite prevailing evidence that he may be mentally ill.  The Petitioners also refer in this regard to the failure of Mr. Martinez Villareal's attorney to seek a change of venue for his trial and thereby ensure him an impartial trial, despite the publicity and other potentially prejudicial circumstances surrounding his prosecution.  In support of these allegations, the Petitioners provided an affidavit sworn by Mr. Martinez Villareal’s trial attorney on March 19, 1993 in which he attests to his own inexperience and ineffectiveness in representing Mr. Martinez Villareal.  

29.          According to the Petitioners, these deficiencies in representation also had the effect of precluding Mr. Martinez Villareal, on grounds of “procedural default,” from raising before domestic courts his corollary claims of mental illness or incompetence in respect of the guilt/innocence and sentencing phases of his proceeding, also in violation of Articles I, II, XVIII and XXVI of the American Declaration.   

3.          Mr. Martinez Villareal’s Competence to be Tried and Executed  

30.          The Petitioners challenge before the Commission Mr. Martinez Villareal’s competence to be tried, sentenced to death and executed.  In this regard, as part of the domestic procedural history of the case, the Petitioners indicated that a special hearing took place in the Arizona Superior Court on April 6 and May 6 to May 8, 1997 respecting Mr. Martinez Villareal's competence to be executed, and that the Court ultimately found that Mr. Martinez Villareal suffered from mental illness, mental retardation, and/or organic brain damage but that he was nevertheless competent to be executed.  According to the Petitioners, Mr. Martinez Villareal petitioned the Superior Court in relation to this proceeding to allow him to obtain and admit the results of a Magnetic Resonance Image (MRI) of his brain.  The Petitioners claim that an MRI is equivalent to an x-ray of soft tissue, in this case the brain, and could conclusively show whether or not Mr. Martinez Villareal is suffering from deterioration of the frontal lobe.  The Petitioners allege that the Superior Court denied Mr. Martinez Villareal's request and ruled that an MRI would be inadmissible.  

31.          The Petitioners also contend in this connection that a petition for special action was subsequently filed in the Arizona Supreme Court to review the trial court's determination of competency, and the Supreme Court held in a May 16, 1997 decision that the finding was correct.  According to the Petitioners, however, two concurring justices noted that "the evidence makes it clear that defendant is mildly retarded and seriously mentally ill" and stated that "this is a case which raises serious doubts about the propriety of the death sentence."  

32.          Based in part upon these circumstances, the Petitioners allege that Mr. Martinez Villareal has been precluded from obtaining in domestic proceedings evidence of his mental illness in the form of a Magnetic Resonance Imaging scan of his brain, also in violation of his due process rights under the American Declaration.  Further, the Petitioners indicate that this evidence could conclusively show whether or not the victim is suffering from deterioration of the frontal lobe and therefore is mentally ill and has been since birth.  

33.          On these grounds, the Petitioners contend that the State is responsible for violations of Mr. Martinez Villareal’s rights to a fair trial and to due process of law under Articles XVIII and XXVI of the American Declaration for having tried and sentenced him to death for a capital crime.  In this respect, the Petitioners argue that a binding norm of international law has developed among the member states of the OAS and domestically within the United States whereby states are obliged to refrain from executing the mentally incompetent, and that the United States is bound by this norm.  

4.          Delay in Mr. Martinez Villareal’s Execution  

34.          The Petitioners have alleged that there has been unwarranted delay in the rendering of a final decision in Mr. Martinez Villareal's case, which in turn has led to a violation of Mr. Martinez Villareal's right to a fair trial, to due process of law, and to be free from cruel, infamous or unusual punishment contrary to Articles XVIII and XXVI of the American Declaration.  

35.          The Petitioners emphasize in this regard that Mr. Martinez Villareal was sentenced to death on May 20, 1983 and therefore as of the date of filing of their petition had been on death row for 14 years.  As a consequence of this delay, the Petitioners argue that Mr. Martinez Villareal was the victim of unnecessary suffering, stress and trauma, and accordingly that the State failed to comply with its obligation to ensure that the death penalty is imposed in a humane manner.  

36.          The Petitioners also contend in this regard that the prolonged delay in Mr. Martinez Villareal's case is not attributable to him, but rather to the court system in which he has been engaged which permits such delays.  The Petitioners therefore urge that delays of this nature do not bar assertions that the delays have violated Mr. Martinez Villareal’s rights. [6]  

5.          Right to Equal Protection  

37.          The Petitioners allege that the application of the death penalty in circumstances in which Mr. Martinez Villareal's rights under Articles XVIII and XXVI have been violated would contravene his right to life under Article I of the American Declaration, as well as his right to equality before the law under Article II of the Declaration.  According to the Petitioners, this is in part because in the United States, individual states regulate whether and the manner in which the death penalty is implemented, and therefore the penalty is not equally applied in the United States.  

B.          Position of the State  

38.          As a context for its observations, the State provided the Commission with particulars concerning the circumstances of Mr. Martinez Villareal’s crimes.  According to the State, in October of 1982, an American ranch foreman and his assistant were shot to death in Santa Cruz County, Arizona and their truck and some personal belongings were stolen.  Ramon Martinez Villareal, a Mexican national who the State alleges repeatedly entered the United States illegally, was convicted in a jury trial of the two murders and a previous burglary of the Bailey residence where the guns and ammunition used in the murder were also stolen.  The State also claims that Mr. Martinez Villareal pleaded guilty to a subsequent burglary at the Aycock residence.  On May 20, 1983, he was sentenced to death on each of the murder convictions and to consecutive prison terms of 10 years and 2 ½ years on the burglary convictions.  The death penalty was based on two aggravating factors, depravity and commission for pecuniary gain, which were not offset by mitigating factors. [7]  

39.          With respect to the Petitioners' contentions regarding the Vienna Convention on Consular Relations, the State indicates that the Vienna Convention does not vest any private rights in a criminal defendant and therefore that reliance on this instrument by Mr. Martinez Villareal is misplaced.  

40.          More particularly, the State alleges that because no issue of treaty compliance was raised on Mr. Martinez Villareal’s behalf until 1997, little information is available about what steps may have been taken to inform representatives of Mexico about Mr. Martinez Villareal’s case.  The State nevertheless contends that the Mexican Government was in a position to know about Mr. Martinez Villareal’s case from news media and other sources.  The State claims in particular that Mexico maintains consulates in Nogales, where Mr. Martinez Villareal was held and tried, and in Tucson.  The State also makes reference in this connection to one story that was published in the Arizona Daily Star in Tucson on January 8, 1983 indicating that Mr. Martinez Villareal was a Mexican national, that he would be tried for the murders at issue, and that the prosecutor would probably seek the death penalty.  Further, the State relies upon the recorded questioning of the prospective jurors for Mr. Martinez Villareal’s trial, which it claims reflects that there had been substantial news coverage of the case not only in the Star, but also in the local Nogales papers such as the “Herald” and the “International” and the broadcast media, to the point where virtually all of the prospective jurors were aware of the case.  

41.          Moreover, the United States claims that according to the records of the Santa Cruz County Jail Mr. Martinez Villareal was in fact visited by someone from the Mexican consulate on April 19, 1983, the first day of his trial.  Based upon this information, the State argues that it must be assumed that the Mexican consular staffs in both Tucson and Nogales were also aware of the case, even if there had not been formal notification.  

42.          The State also contends that Tom McGrew, a son of one of the victims, had sworn in an affidavit that he personally contacted a Mexican consular officer in Nogales about the case and was told that the “Mexican Government was concerned with the proceedings and would monitor those proceedings.” [8]     

43.          Regarding the Petitioners' claims pertaining to the fairness of Mr. Martinez Villareal's proceedings generally, the State argues that the petition is manifestly groundless because the Petitioners have failed to articulate any international "due process" standard that has allegedly been violated.  The State also contends that according to the record, Mr. Martinez Villareal had been afforded due process consistent with the U.S. Constitution and applicable international norms.  

44.          Further, the State stresses that the domestic courts ultimately determined that Mr. Martinez Villareal was procedurally precluded from challenging the adequacy of his legal representation under domestic law because he failed to present the issue in his initial post-conviction review proceedings, with no acceptable cause for the default.  

45.          With respect to the Petitioners' complaints regarding a change of venue for Mr. Martinez Villareal's trial in particular, the State contends that these arguments ignore the fact that the trial court expended an entire day in the jury selection process, that issues concerning exposure to news accounts and contacts with the families of the victims were part of the voir dire process in choosing the jury members, and that it has not been shown that this process was inadequate or that the jury which heard the case was not impartial. Rather, the State argues that the real question regarding fairness in this context is the prejudicial effect of the publicity not its extensiveness, and that a voir dire is an effective method for determining whether such prejudice has been engendered in the community that a change in venue is necessary. [9]    

46.          In relation to the Petitioners' contentions respecting Mr. Martinez Villareal's mental competence to be tried and executed, the State argues that these allegations are flawed because they assume as true a fact which has never been proven, namely that Mr. Martinez Villareal had mental problems around the time of his trial.  The State claims that this contention is nothing more than “unsupported extrapolation from testimony that he may have mental problems now.” [10] Indeed, the State contends that even the existence of significant current mental problems on Mr. Martinez Villareal’s part has not been satisfactorily proved.  

47.          In this regard, the State points out that no claim of incompetency or mental problems was raised at the time of Mr. Martinez Villareal’s trial and that the judge, who was of Hispanic background, “presumably would be particularly alert to indications of mental disorder in a Hispanic accused such as the Defendant.” [11] As neither the trial judge nor Mr. Martinez Villareal’s attorney perceived anything to suggest to them that Mr. Martinez Villareal suffered from any sort of mental problem and as the transcripts of those hearings do not contain anything indicating that they should have been concerned, the State asserts that there is substantial contemporary evidence that Mr. Martinez Villareal was acting normally at the time of the trial.  The State notes further that the Federal District Court in 1994 concluded that there was insufficient evidence that, at the time of Mr. Martinez Villareal’s trial eleven years earlier, his attorney should have entertained a bona fide doubt at Mr. Martinez Villareal’s capacity to stand trial.  In these circumstances, the State contends that it is unrealistic to suggest that Mr. Martinez Villareal’s attorney would have searched for evidence of yet earlier mental problems in hopes of offering it as mitigation. [12]    

48.          The State also emphasizes that the Pinal County Superior Court, after conducting the 1997 hearing concerning Mr. Martinez Villareal's competence for execution, did not find that Mr. Martinez Villareal actually suffered from mental illness, mental retardation, or organic brain damage.  Rather, according to the State, the Court found credible evidence on both sides of the issue, including credible evidence negating the existence of a legally-significant mental problem.  Moreover, this determination was upheld by the Arizona Supreme Court and the U.S. Supreme Court denied certiorari in May 1997. The State further notes that the Arizona Board of Clemency then heard two days of testimony, including claims regarding Mr. Martinez Villareal's mental condition and effectiveness of trial counsel, but was not persuaded that there were grounds to grant Mr. Martinez Villareal a reprieve or commutation.  

49.          With respect to the Petitioners' allegations respecting the delay in Mr. Martinez Villareal's criminal proceedings, the State contends that such delays are attributable to Mr. Martinez Villareal, and that in any event, arguments that he suffered unduly from delays in his case cannot be grounded in U.S. law.  The State relies in this regard upon jurisprudence from the U.S. courts according to which the existence of appellate delay designed to provide an appellant with procedural safeguards does not violate fundamental human rights, under the Sixth, Eighth or Fourteenth Amendments to the U.S. Constitution or otherwise. [13]

50.          Finally, in respect of the Petitioners' alleged violations of the right to equality under Article II of the Declaration, the State contends that this demonstrates a misunderstanding of the American legal system, as all states in the United States that choose to utilize capital punishment are equally bound to meet the standards for such cases established by the U.S. Supreme Court.  These include decisions applying the Fourteenth Amendment to the U.S. Constitution respecting due process of law, and the Eighth Amendment prohibiting cruel and unusual punishment.  Accordingly, the State suggests that the Petitioners have failed to substantiate a violation of Article II of the Declaration in respect of Mr. Martinez Villareal.

IV.          ANALYSIS  

A.          Standard of Review  

51.          Before addressing the merits of the present case, the Commission wishes to reaffirm and reiterate its well-established doctrine that it will apply a heightened level of scrutiny in deciding capital punishment cases.  As the right to life is widely-recognized as the supreme right of the human being, respect for which the enjoyment of all other rights depends, the Commission considers that it has an enhanced obligation to ensure that any deprivation of life that an OAS member state proposes to perpetrate through the death penalty complies strictly with the requirements of the applicable inter-American human rights instruments, including the American Declaration.  This heightened scrutiny test is consistent with the restrictive approach taken by other international human rights authorities to the imposition of the death penalty, [14] and has been articulated and applied by the Commission in previous capital cases before it. [15]  

52.          This approach requires in particular strict adherence to the rules and principles of due process and fair trials in the context of capital cases.  The Commission has previously emphasized that, due in part to its irrevocable and irreversible nature, the death penalty is a form of punishment that differs in substance as well as in degree in comparison with other means of punishment, and therefore warrants a particularly stringent need for reliability in determining whether a person is responsible for a crime that carries a penalty of death. [16]  

53.          The Commission also notes that this heightened scrutiny test applicable to death penalty cases is not precluded by the Commission's fourth instance formula. According to this formula, the Commission in principle will not review the judgments issued by domestic courts acting within their competence and with due judicial guarantees. [17] Where a possible violation of an individual's rights under applicable inter-American human rights instruments is involved, however, the Commission has consistently held that the fourth instance formula has no application and the Commission may consider the matter. [18]  

54.          The Commission will therefore review the Petitioners’ allegations in the present case with a heightened level of scrutiny, to ensure in particular that the right to life, the right to due process, and the right to a fair trial as prescribed under the American Declaration have been properly respected by the State.

B.       Articles I, XVIII and XXVI of the American Declaration – the Right to Life, the Right to Due Process and a Fair Trial, and the Vienna Convention on Consular Relations  

55.          Articles I, XVIII and XXVI of the American Declaration provide as follows:

Article I – Right to life, liberty and personal security

Every human being has the right to life, liberty and the security of his person.

Article XVIII – Right to a fair trial

Every person may resort to the courts to ensure respect for his legal rights.  There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights.

Article XXVI – Right to due process of law

Every accused person is presumed to be innocent until proven guilty.

Every person accused of an offense has the right to be given an impartial and public hearing, an to be tried by courts previously established in accordance with pre-existing laws, and not to receive cruel, infamous or unusual punishment.  

56.          Among the claims raised by the Petitioners is the allegation that the State failed to comply with Article 36 of the Vienna Convention on Consular Relations in relation to the criminal proceedings against Mr. Martinez Villareal, as a consequence of which the State is said to have violated Mr. Martinez Villareal's rights to due process and a fair trial under Articles XVIII and XXVI of the American Declaration of the Rights and Duties of Man.  The Petitioners also contend that in these circumstances, Mr. Martinez Villareal’s execution would constitute an arbitrary deprivation of life contrary to Articles I and XXVI of the Declaration. 

57.            The text of Article 36 of the Vienna Convention is set forth below:

Article 36

COMMUNICATION AND CONTACT WITH NATIONALS OF THE SENDING STATE

1. With a view to facilitating the exercise of consular functions relating to nationals of the sending State:

(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them.  Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner.  Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay.  The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph;

(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation.  They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment.  Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.

2. The rights referred to in paragraph 1 of this Article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this Article are intended. [19]  

58.          The Commission observes that the United States signed this instrument on April 24, 1963 and deposited its instrument of ratification of the treaty on November 24, 1969 absent any declarations or reservations [20] and therefore is and was at all relevant times bound by its provisions. [21]  

59.          Before proceeding further with the analysis of this issue, the Commission wishes to clarify the jurisdictional basis upon which the Commission considers Mr. Martinez Villareal’s rights and the State’s obligations under the Vienna Convention on Consular Relations.  Neither the Vienna Convention on Consular Relations nor any other international instrument explicitly endows the Commission with jurisdiction to determine violations of that Convention, on the part of the United States or other states parties to the agreement.  Accordingly, based upon the current jurisprudence of the Inter-American Court, the Commission does not consider that it has competence to adjudicate upon the State’s responsibility for violations of the Vienna Convention on Consular Relations per se. [22]  

60.          At the same time, the Commission has previously noted that in interpreting and applying the American Declaration, it is necessary to consider its provisions in the context of developments in the field of international human rights law since the Declaration was first composed and with due regard to other relevant rules of international law applicable to member states against which complaints of violations of the Declaration are properly lodged. [23] Developments in the corpus of international human rights law relevant in interpreting and applying the American Declaration may in turn be drawn from the provisions of other prevailing international and regional human rights instruments.   

61.          In this context, the Commission observes that the Vienna Convention on Consular Relations, as a treaty binding on the United States, prescribes procedural rights and obligations relating to foreign nationals who are arrested or committed to prison or to custody pending trial or are detained in any other manner by states parties to the treaty.  In particular, Article 36(1)(b) of the Vienna Convention on Consular Relations obliges authorities of a receiving State to inform a foreign national in these circumstances without delay of his right to communicate with the consular post of his State, such that if he so requests the competent authorities of the receiving State shall, again without delay, inform the consular post of the sending State of the foreign national’s arrest or detention and forward any communication addressed to the consular post by that person. [24]  

62.          Moreover, the Commission considers that compliance with the rights of a foreign national under the Vienna Convention on Consular Relations is particularly relevant to determining whether a state has complied with the provisions of the American Declaration pertaining to the right to due process and to a fair trial as they apply to a foreign national who has been arrested, committed to prison or to custody pending trial, or is detained in any other manner by that state. [25]    

63.          More particularly, in accordance with the Commission’s previous jurisprudence [26] as well as the terms of pertinent international instruments and general principles of international law, the requisite due process and fair trial protections guaranteed under Articles XVIII and XXVI of the American Declaration include most fundamentally the right of a defendant to be presumed innocent until proven guilty according to law, [27] the right to prior notification in detail of the charges against him, [28] the right to adequate time and means for the preparation of his defense, [29] the right to be tried by a competent, independent and impartial tribunal previously established by law, [30] the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing and to communicate freely and privately with his counsel, [31] and the right not to be compelled to be a witness against himself or to plead guilty. [32]  

64.          The Commission considers that these protections in turn are of such a nature that, in the absence of access to consular assistance, a foreign national may be placed at a considerable disadvantage in the context of a criminal proceeding taken against him or her by a state.  This could arise, for example, by virtue of foreign national’s inability to speak the language of the state, a lack of familiarity with its legal system, or an inability to gather relevant information, such as mitigating evidence, from his or her home country. Disadvantages of this nature could in turn undermine the effectiveness of the foreign national’s due process rights to, for example, understand the charges against him and to adequately prepare his or her defense.  It is also apparent that access to consular assistance could potentially mitigate such disadvantages by such means as the provision of linguistic and legal assistance as well as the identification and collection of pertinent information from the defendant’s state of nationality. [33]  

65.          The Commission finds support for this approach in recent judgments of the Inter-American Court of Human Rights in its Advisory Opinion OC-16/99 [34] and by the International Court of Justice (the “ICJ”) in the LaGrand Case (Germany v. United States), [35] in which these tribunals also had occasion to interpret the Vienna Convention on Consular Relations in the context of capital proceedings.  

66.          The Inter-American Court’s Advisory Opinion OC-16/99 resulted from a request by the government of the United Mexican Republic pursuant to Article 64(1) of the American Convention on Human Rights [36] for an opinion on several questions, among which were the following points relating to the Vienna Convention on Consular Relations:

In relation to the Vienna Convention on Consular Relations:

[…]

4. From the point of view of international law and with regard to aliens, what should be the juridical consequences of the imposition and application of the death penalty in the light of failure to give the notification referred to in Article 36(1)(b) of the Vienna Convention?

[…]

With regard to the International Covenant on Civil and Political Rights:

[…]

10. In connection with the Covenant and with regard to persons of foreign nationality, what should be the juridical consequences of the imposition and application of the death penalty in the light of failure to give the notification referred to in Article 36(1)(b) of the Vienna Convention [on Consular Relations]?

[…]

With regard to the OAS Charter and the American Declaration of the Rights and Duties of States:

12. With regard to aliens in the framework of Article 3(1) of the OAS Charter and Articles I, II and XXVI of the Declaration, what should be the juridical consequences of the imposition and execution of the death penalty when there has been a failure to make the notification referred to in Article 36(1)(b) of the Vienna Convention [on Consular Relations]? [37]

67.          In addressing these aspects of Mexico’s request, the Inter-American Court emphasized the strict standard of due process that must be considered to apply in the prosecution of capital offenses.  The Court recalled in this regard its previous Advisory Opinion OC-3/83, in which it observed that   

the application and imposition of capital punishment are governed by the principle that "no one shall be arbitrarily deprived of his life." Both Article 6 of the International Covenant on Civil and Political Rights and Article 4 of the Convention require strict observance of legal procedure and limit application of this penalty to "the most serious crimes." In both instruments, therefore, there is a marked tendency toward restricting application of the death penalty and ultimately abolishing it. [38]

68.          The Inter-American Court interpreted this tendency as an “internationally recognized principle whereby those States that still have the death penalty must, without exception, exercise the most rigorous control for observance of judicial guarantees in these cases.“ [39] According to the Court, “because execution of the death penalty is irreversible, the strictest and most rigorous enforcement of judicial guarantees is required of the State so that those guarantees are not violated and a human life not arbitrarily taken as a result.” [40]

69.          In respect of a defendant’s right to information under Article 36(1)(b) of the Vienna Convention on Consular Relations in particular, the Court concluded that owing to the linguistic and other disadvantages faced by foreign nationals, this right is among the minimum guarantees essential for foreign nationals to adequately prepare their defense and receive a fair trial.  Accordingly, the Court considered that respect for the requirements of the Vienna Convention on Consular Relations renders it possible for the right to the due process of law upheld in Article 14 of the International Covenant on Civil and Political Rights to have practical effect in tangible cases. [41] It also observed that this obligation becomes all the more imperative here, given the exceptionally grave and irreparable nature of the penalty that one sentenced to death could receive.  If the due process of law, with all its rights and guarantees, must be respected regardless of the circumstances, then its observance becomes all the more important when that supreme entitlement that every human rights treaty and declaration recognizes and protects is at stake: human life. [42]

70.          Based upon this analysis, the Court concluded that a failure to comply with Article 36 of the Vienna Convention on Consular Relations in respect of a particular foreign national in a capital case would give rise to an arbitrary deprivation of life under international human rights principles.  According to the Court

nonobservance of a detained foreign national’s right to information, recognized in Article 36(1)(b) of the Vienna Convention on Consular Relations, is prejudicial to the guarantees of the due process of law; in such circumstances, imposition of the death penalty is a violation of the right not to be "arbitrarily" deprived of one’s life, in the terms of the relevant provisions of the human rights treaties (e.g.  the American Convention on Human Rights, Article 4; the International Covenant on Civil and Political Rights, Article 6) with the juridical consequences inherent in a violation of this nature, i.e., those pertaining to the international responsibility of the State and the duty to make reparations.” [43]

71.          The International Court of Justice likewise recently pronounced judgment in the LaGrand Case (Germany v. United States) [44] in connection with a failure on the part of the United States to adhere to the Vienna Convention on Consular Relations in a specific capital prosecution.  The LaGrand case related to the conviction and sentencing to death in 1984 for first degree murder in Arizona of two German nationals, brothers Karl and Walter LaGrand.  Karl LaGrand was executed on February 24, 1999 and on the day before the scheduled execution date for Walter LaGrand, March 2, 1999, Germany brought the case to the ICJ.

72.          On the merits of the case, Germany alleged that the United States failed to comply with its obligation under Article 36 of the Vienna Convention on Consular Relations to inform the LaGrand brothers upon their arrest and without delay of their right to communicate with the consulate of Germany.  Germany also contended that the LaGrand brothers had been precluded by the U.S. legal doctrine of “procedural default” from raising the Vienna Convention on Consular Relations breach before U.S. courts.  The United States acknowledged its failure to ensure compliance with Vienna Convention on Consular Relations, but argued that the Vienna Convention confers no rights on individual nationals and therefore had no bearing on domestic procedures in criminal cases.  The United States also submitted that it had apologized to Germany and was taking substantial measures aimed at preventing any recurrence.

73.          In its Judgment on the merits of the case, the ICJ found by fourteen votes to one that by not informing the LaGrand brothers without delay following their arrest of their rights under Article 36(1)(b) of the Vienna Convention on Consular Relations the United States breached its obligations to Germany and to the LaGrand brothers under that provision.  It also found that the United States breached its obligation to Germany and to the LaGrand brothers under Article 36(2) of the Vienna Convention on Consular Relations to give full effect under its laws and regulations to the rights under Article 36(1), by not permitting the review and reconsideration of the LaGrand brothers’ convictions and sentences after the violations of the Vienna Convention on Consular Relations had been established.  

74.          In reaching these conclusions, the ICJ found that by its plain terms Article 36 creates individuals rights which, in the context of the ICJ jurisdiction, could be invoked by the national State of the detained person and which had been violated by the United States in respect of the LaGrands:  

The Court notes that Article 36, paragraph 1(b), spells out the obligations the receiving State has towards the detained persons and the sending State.  It provides that, at the request of the detained person, the receiving State must inform the consular post of the sending State of the Individual’s detention “without delay”.  It provides further that any communication by the detained person addressed to the consular post of the sending State must be forwarded to it by authorities of the receiving State “without delay”.  Significantly, this subparagraph ends with the following language: “The said authorities shall inform the person concerned without delay of his rights under this subparagraph” (emphasis added).  Moreover, under Article 36, paragraph 1(c), the sending State’s right to provide consular assistance to the detained person may not be exercised “if he expressly opposes such action”.  The clarity of these provisions, viewed in this context, admits of no doubt.  It follows, as has been held on a number of occasions, that the Court must apply these as they stand. [. . .] Based on the text of these provisions, the Court concludes that Article 36, paragraph 1, creates individual rights, which, by virtue of Article I of the Optional Protocol, may be invoked in this Court by the national State of the detained person.  These rights were violated in the present case. [45]  

75.          Therefore, as with the Inter-American Court of Human Rights, the International Court of Justice recognized that a failure to provide notification under Article 36 of the Vienna Convention on Consular Relations entails breaches of international legal obligations owed to both the sending State and the individual concerned, which may in turn give rise to the international responsibility of the receiving State.  While the ICJ declined to address the potential nature of this right as a human right, [46] the Inter-American Court determined that Article 36(1)(b) of the Vienna Convention on Consular Relations also gives rise to human rights obligations as prescribed in the due process provisions of international human rights treaties. [47]  

76.          The Commission notes that the significance of compliance with the Vienna Convention on Consular Relations for the protection of foreign nationals has been explicitly recognized in other international fora, including the UN Commission on Human Rights [48] and the General Assembly of the Organization of American States. [49] Moreover, in a previous proceeding before the International Court of Justice, the United States itself asserted the existence of a right under Article 36 of the Vienna Convention on Consular Relations on the part of foreign nationals to consular access and emphasized the importance of compliance with those obligations. [50]  

77.          Therefore, the Commission considers that it is appropriate to consider compliance by a state party to the Vienna Convention on Consular Relations with the requirements of Article 36 of that treaty in interpreting and applying the provisions of the American Declaration to a foreign national who has been arrested, committed to prison or to custody pending trial, or is detained in any other manner by that state. [51]   In particular, the Commission may consider the extent to which a state party has given effect to the requirements of Article 36 of the Vienna Convention on Consular Relations for the purpose of evaluating that state’s compliance with a foreign national’s due process rights under Articles XVIII and XXVI of the American Declaration.  

78.          In the circumstances of Mr. Martinez Villareal’s case, the Petitioners have alleged that the State failed to comply with its obligations under Article 36(1)(b) of the Vienna Convention on Consular Relations in respect of Mr. Martinez Villareal’s arrest and subsequent prosecution.  For its part, the State has not contended that the requirements of Article 36(1)(b) of the Vienna Convention on Consular Relations were satisfied in the present case.  The State argues, however, that the publicity surrounding Mr. Martinez Villareal’s trial was such that it should be assumed that the Mexican consular staffs in Tucson and Nogales were aware of the case.  The State also refers in this regard to documentary and other evidence suggesting that consular staff had commented on Mr. Martinez Villareal’s trial and may in fact have visited him on the first day of his trial.

79.          The Commission notes in this respect that the State has not provided the Commission with evidence substantiating its allegations concerning the state of knowledge of the Mexican consular staff in Texas.  Further, in light of the strict standard of due process to which capital defendants are entitled under prevailing international human rights law and the United State’s clear and positive obligation under the Vienna Convention on Consular Relations to ensure formal notification of the initiation of criminal proceedings such as those against Mr. Martinez Villareal, the Commission does not consider it to be appropriate or adequate to rely upon speculation as to whether and to what extent Mexico may have been aware of Mr. Martinez Villareal’s situation.  

80.          Moreover, even if the Mexican consulates had been aware of the proceedings against Mr. Villareal as the State suggests, this would on the State’s submissions have occurred at the earliest at the outset of Mr. Martinez Villareal’s trial and therefore after crucial preliminary stages of his criminal proceedings transpired, including the retaining of his attorney, the presentation of the charges against him and the development of his defense.  It would not have occurred “without delay” as required under Article 36(1)(b) of the Vienna Convention on Consular Relations.  And in any event, conjecture as to the possible state of knowledge of the Mexican consular staff does nothing to address Mr. Martinez Villareal’s independent entitlement to be informed of his right to consular assistance as the individual best placed to gauge his potential need for such support.  

81.          The Commission therefore concludes that the State failed to inform Mr. Martinez Villareal of his rights under Article 36(1)(b) of the Vienna Convention on Consular Relations and likewise failed to inform the Mexican consulates of Mr. Martinez Villareal’s arrest and subsequent prosecution as required under that provision.  

82.          Further, the Commission finds that in the context of Mr. Martinez Villareal’s case, the absence of notification under Article 36(1)(b) of the Vienna Convention on Consular Relations could on the information available have had a significant effect on the fairness of Mr. Martinez Villareal’s criminal proceedings.  According to the record, Mr. Martinez Villareal was a Mexican national who was arrested and tried in the United States, but who did not speak English and was represented by an attorney who did not speak Spanish.  The record also indicates that Mr. Martinez Villareal was not familiar with the U.S. legal system and that this, together with his linguistic limitations, affected his understanding of and participation in the criminal proceedings against him despite the presence of a translator.  The Petitioners claim, for example, that Mr. Villareal did not understand which people in the courtroom comprised the jury or what the purpose of the jury was, and that the voir dire proceedings were not translated into a language that he could understand.  The record also indicates Mr. Martinez Villareal’s attorney failed to contact his family in Mexico and, moreover, personally attested through an affidavit as to his overall inexperience and ineffectiveness in handling Mr. Martinez Villareal’s case.  Further, there is evidence suggesting that Mr. Martinez Villareal suffered from some degree of mental deficiency during at least certain stages of the criminal proceedings against him.

83.          These circumstances strongly suggest that the quality of due process afforded to Mr. Martinez Villareal suffered as a consequence of his status as a foreign national, a circumstance that compliance with the notification requirements under Article 36(1)(b) of the Vienna Convention on Consular Relations may well have mitigated.  The Commission also cannot find that the standard of due process owing to Mr. Martinez Villareal under the American Declaration and under general principles of international law was satisfied based upon the State’s contentions in this matter as to the possible state of knowledge or involvement of Mexican consular officials.

84.          Based upon the foregoing analysis, the Commission concludes that Mr. Villareal’s right to information under Article 36(1)(b) of the Vienna Convention on Consular Relations constituted a fundamental component of the due process standards to which he was entitled under Articles XVIII and XXVI of the American Declaration, and that the State’s failure to respect and ensure this obligation constituted serious violations of Mr. Martinez Villareal’s rights to due process and to a fair trial under these provisions of the Declaration.  

85.          Accordingly, should the State execute Mr. Martinez Villareal based upon the criminal proceedings for which he is presently convicted and sentenced, the Commission finds that this will constitute an arbitrary deprivation of Mr. Martinez Villareal’s life contrary to Article I of the Declaration.  

86.          In a case such as the present, where a defendant’s conviction has occurred as a result of proceedings that fail to satisfy the minimal requirements of fairness and due process, the Commission considers that the appropriate remedy includes a re-trial in accordance with the due process and fair trial protections prescribed under Articles XVIII and XXVI of the American Declaration or, where a re-trial in compliance with these protections is not possible, Mr. Martinez Villareal’s release. [52]  

87.          In light of the Commission’s finding regarding the violation of Mr. Martinez Villareal’s rights to due process and to a fair trial under Article XVIII and XXVI of the Declaration in connection with the absence of notification under Article 36 of the Vienna Convention on Consular Relations, and its corresponding recommendation that Mr. Martinez Villareal be afforded a new trial or alternatively released, the Commission does not consider it necessary to determine the remaining claims raised by the Petitioners in this case.  

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