ANNUAL REPORT OF THE IACHR 2006

CASE 11.335, Report Nº 78/02 Guy Malary (Haiti)

300. In Report Nº 78/02 of December 27, 2002, the IACHR made the following recommendations to the Haitian State:

a) Carry out a full, prompt, impartial, and effective investigation within the Haitian ordinary criminal jurisdiction in order to establish the responsibility of the authors of the violation of the right to life of Mr. Guy Malary and punish all those responsible.

b) Provide full reparation to the next-of-kin of the victim, inter alia, the payment of just compensation.

c) Adopt the measures necessary to carry out programs targeting the competent judicial authorities responsible for judicial investigations and auxiliary proceedings, in order for them to conduct criminal proceedings in the accordance with international instruments on human rights.

301. The parties have not provided the Commission with up-dated information concerning compliance with the Commission’s recommendations in Report 78/02. Based upon the information available, the Commission considers that compliance with the Commission’s recommendations is pending.

CASES 11.826, 11.843, 11.846 and 11.847, Report Nº 49/01, Leroy Lamey, Kevin Mykoo, Milton Montique and Dalton Daley (Jamaica)

302. In Report Nº 49/01 dated April 4, 2001 the Commission recommended that the State of Jamaica:

1. Grant the victims an effective remedy which included commutation of their death sentences and compensation;

2. Adopt such legislative or other measures as may be necessary to ensure that the death penalty is not imposed in violation of the rights and freedoms guaranteed under the Convention, including Articles 4, 5 and 8, in particular that no person is sentenced to death pursuant to a mandatory sentencing law;

3. Adopt such legislative or other measures as may be necessary to ensure that the right under Article 4.6 of the Convention to apply for amnesty, pardon or commutation of sentence is given effect in Jamaica;

4. Adopt such legislative or other measures as may be necessary to ensure that the victims' rights to humane treatment under Articles 5.1 and 5.2 of the Convention, particularly in relation to their conditions of detention, are given effect in Jamaica;

5. Adopt such legislative or other measures as may be necessary to ensure that the right to a fair hearing under Article 8.1 of the Convention and the right to judicial protection under Article 25 of the Convention are given effect in Jamaica in relation to recourse to Constitutional Motions.

303. By note dated January 22, 2007, the State informed the Commission that by virtue of the ruling of the Judicial Committee of the Privy Council in Pratt & Morgan v. the Attorney General of Jamaica [1993], in any instance where the period between a sentence of death and the time of execution exceeds five years, the carrying out of that execution will be presumed to be inhuman and degrading punishment and therefore inconsistent with Jamaican law. Consequently, as a matter of course, death row convicts will have their sentence of death automatically commuted to life imprisonment, once the sentence has not been effected within a five-year period after sentence. Furthermore, the State expressed that it regarded the first recommendation as “vague and incoherent” considering that the Commission has not set out the purpose for compensation or the underlying principles on which this compensatory package should be based. According to the State, if the Commission’s argument is that compensation is due because the State has not provided an effective remedy in death penalty cases, this point is unfounded because as a result of the decision in Lambert Watson v. R [2004] the mandatory death penalty was declared unconstitutional and that the law was revised. Therefore, the State would only contemplate compensation for those persons given a mandatory sentence of death after the ruling in Lambert Watson, because to do otherwise, would be to apply the law retroactively.

304. Concerning the second recommendation, the State informed that it had adopted legislative measures to ensure that the mandatory death penalty is not imposed with amendments to the Offences Against the Persons Act 1992, the Parole Act 1978, the Criminal Justice [Reform] Act of 1978 and the Gun Court Act 1974, pursuant to the Offences Against the Persons (Amendment) Act 2005 and the Offences Against the Persons (Amendment) Act 2006. Specifically, the State indicated that the present legislation effectively discarded the two-classification of murder into categories of capital murder, which attracted an automatic and obligatory sentence, and non-capital murder, and, therefore, the sentence of death is now optional for all cases in which previously involved mandatory death sentences. In this regard, the State indicated that the court is mandated, before passing sentence, to hear submissions, representations and evidence from the prosecution and the defense in relation to the issue of the sentence to be passed. In addition, the State of Jamaica informed that whenever a sentence of life imprisonment is imposed, the court has the duty to specify the period of imprisonment that should be served before the offender is eligible for parole. The State similarly indicated that provisions have been made for a review of all mandatory sentences of death previously imposed under the Offences Against the Persons (Amendment) Act 1992 and that a result, sentences have been quashed and a judicial determination has been made, or is to be made, as to the appropriate sentence to be imposed for each convict.

305. With regard to the Commission’s third recommendation, the State informed that the Governor General is empowered under Section 90 of the Jamaican Constitution to grant pardon to any person convicted of any offence, grant respite to any person either indefinitely or for a specified period from the execution of any punishment imposed on that person, or, to substitute a less severe form of punishment for that imposed on any person. The Governor General acts in this on the recommendation of the Jamaican Privy Council under Section 91 of the Constitution. The State referred that the ruling of the Judicial Committee of the Privy Council in Neville Lewis v. The Attorney General of Jamaica [2000], regarding fair and proper procedures for the grant of mercy, has become part of Jamaican law, individuals are given notice of hearings and the opportunity to present submissions on their behalf. The State also pointed out that by virtue of the Offences Against the Persons (Amendment ) Act 2005, there is no longer a mandatory sentence of death in Jamaica and that judicial consideration of submissions, representation and evidence, as to the appropriateness of the sentence to be passed, is required in all circumstances where a sentence of death may be imposed. Furthermore, the State indicated that persons sentenced to death in Jamaica have always enjoyed a right of appeal against sentence, which is evidenced by the several death row cases that have gone before the Court of Appeal and the Judicial Committee of the Privy Council. Appeal from a sentence of death can and has led to either confirmation or to a quashing of the sentence and the substitution of a more appropriate sentence. According to the State, it effectively guarantees persons condemned to death the right to seek a review of their sentence which can lead to the commutation of their sentence.

306. In respect of the Commission’s fourth recommendation, the State pointed out that Leroy Lamey, Kevin Mykoo, Milton Montique and Dalton Daley are inmates that have benefited under the Lambert Watson v. Jamaica [2004]. The State indicated that as a result of the decision in Lambert Watson decision, all persons on “death row” were removed from “death row” and placed within general prison population, pending the outcome of the hearings as to the appropriateness of the death sentence previously imposed mandatorily. Furthermore, the State indicated that generally, the conditions of detention comply with the standards of humane treatment and that the Inspectorate Unit of the Jamaican Correctional Services continues to monitor conformity to the requisite standards of order, cleanliness and adequacy of space, bedding, ventilation and lighting in all correctional facilities and where necessary the Unit makes recommendations for systematic improvements.

307. Finally, concerning the fifth recommendation, the State indicated that it retained the view that judicial protections and fair hearing procedures are effectively guaranteed under the laws of Jamaica. As to the provision of legal aid assistance to persons wishing to bring Constitutional Motions, the State expressed it is not adverse to giving consideration to such a course of action but maintained, however, that this is not a requirement of Article 8 of the Convention.

308. The Commission points out that in its 2004 and 2005 Annual Reports, the Commission stated there had been partial compliance with the Commission’s first, second, and third recommendations. Based upon the latest information presented by the State, the Commission now considers that there has been compliance with the Commission’s second recommendation with the adoption of legislative measures to ensure that no person is sentenced to death pursuant to a mandatory sentencing law. With respect to the remaining recommendations, however, the Commission notes that the latest communication presented by the State of Jamaica, for the most part, reiterates the information provided in its previous response considered by the Commission in its 2004 Annual Report. In light of the foregoing, the Commission reaffirms that there has been partial compliance with the first and third recommendation and that compliance with the fourth and fifth recommendations set forth in report N° 49/01 is pending.

CASE 12.069, Report Nº 50/01, Damion Thomas (Jamaica)

309. In Report Nº 50/01 dated April 4, 2001 the Commission recommended that the State:

1. Grant the victim an effective remedy, which included compensation;

2. Conduct thorough and impartial investigations into the facts of the pertinent incidents denounced by the Petitioners in order to determine and attribute responsibility to those accountable for the violations concerned and undertake appropriate remedial measures;

3. Review its practices and procedures to ensure that officials involved in the incarceration and supervision of persons imprisoned in Jamaica are provided with appropriate training concerning the standards of humane treatment of such persons, including restrictions on the use of force against such persons; and

4. Review its practices and procedures to ensure that complaints made by prisoners concerning alleged mistreatment by prison officials and other conditions of their detention are properly investigated and resolved.

310. In a letter dated December 21, 2006, Mr. Damion Thomas’ representatives indicated that, based upon information available to them and to the best of their knowledge, the State of Jamaica had not taken any steps to comply with the four recommendations contained in Report Nº 50/01. By note dated January 22, 2007, the State indicated that it regarded the first recommendation as “vague and incoherent” considering that the Commission has not set out the purpose for compensation or the underlying principles on which this compensatory package should be based. As to the second recommendation, the State indicated that it had taken the initiative to bring the matter concerning Mr. Damion Thomas to the attention of the Office of the Public Defender, the one empowered under Jamaican law to receive and investigate complaints from inmates. With regard to the Commission’s third recommendation, the State indicated that the Inspectorate Unit of the Correctional Services Department periodically undertakes awareness training exercises for all Correctional Officers to raise awareness of the standards of humane treatment set by the United Nations, international treaties and Jamaican law. Concerning the fourth recommendation, the State informed that periodic reviews of various internal and external prisoner complaints mechanisms continue to be a part of the agenda of the Jamaican Correctional services. The mechanisms include internal investigations of complaints by the superintendent of Correctional Services and the Inspectorate Unit of the correctional services.

311. In its 2004 and 2005 Annual Reports, the Commission indicated that based upon the information available, there had been partial compliance with the third and fourth recommendations transcribed above. The Commission notes that the latest communication presented by the State of Jamaica, for the most part, is a reiteration of the information provided in its previous response considered by the Commission in its 2004 Annual Report. Accordingly, the Commission considers that there has been partial compliance with the second, third and fourth recommendations.

CASE 12.183, Report Nº 127/01, Joseph Thomas (Jamaica)

312. In Report Nº 127/01 dated December 3, 2001, the Commission recommended that the State:

1. Grant the victim an effective remedy, which included a re-trial in accordance with the due process protections prescribed under Article 8 of the Convention or, where a re-trial in compliance with these protections is not possible, his release, and compensation;

2. Adopt such legislative or other measures as may be necessary to ensure that the death penalty is not imposed in contravention of the rights and freedoms guaranteed under the Convention, including and in particular Articles 4, 5 and 8;

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

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

313. By communication dated January 22, 2007, the State expressed its reservation with the recommendation that Mr. Joseph Thomas be granted an effective remedy which includes a re-trial or in the alternative, his release and compensation. In this regard, the State indicated that after Mr. Joseph Thomas’ first trial leading to his conviction, the case was brought before the Jamaican Court of Appeal and also before the Jamaican Privy Council Mercy Committee. According to the State, at both appellate hearings Mr. Thomas raised the issue of the judge’s conduct at the summing up and the failure to hold an identification parade, and that Mr. Joseph Thomas was unsuccessful on both occasions. Given this situation, the State indicated that it can grant no further remedies to Mr. Joseph Thomas through the courts nor grant him compensation without a judicial order.

314. Concerning the second recommendation transcribed above, the State of Jamaica indicated it had adopted legislative measures to ensure that the mandatory death penalty is not imposed with amendments to the Offences Against the Persons Act 1992, the Parole Act 1978, the Criminal Justice [Reform] Act of 1978 and the Gun Court Act 1974, pursuant to the Offences Against the Persons (Amendment) Act 2005 and the Offences Against the Persons (Amendment) Act 2006. Specifically, the State informed the Commission that the pre-existing legislation classified all cases of murder into categories of capital murder, which attracted an automatic and obligatory sentence, and non-capital murder. The present legislative effectively discarded this two-tiered classification of murder and, therefore, the sentence of death is now optional for all cases in which previously involved mandatory death sentences. In this regard, the State indicated that the court is mandated, before passing sentence, to hear submissions, representations and evidence from the prosecution and the defense in relation to the issue of the sentence to be passed. In addition, the State informed that whenever a sentence of life imprisonment is imposed, the court has the duty to specify the period of imprisonment that should be served before the offender is eligible for parole. The State similarly indicated that provisions has been made for a review of all mandatory sentences of death previously imposed under the Offences Against the Persons (Amendment) Act 1992 and that a result, these sentences have been quashed and a judicial determination has been made, or is to be made, as to the appropriate sentence to be imposed for each convict.

315. With regard to the Commission’s third recommendation, the State informed that the Governor General is empowered under Section 90 of the Jamaican Constitution to grant pardon to any person convicted of any offence, grant respite to any person either indefinitely or for a specified period from the execution of any punishment imposed on that person, or, to substitute a less severe form of punishment for that imposed on any person. The Governor General acts in this on the recommendation of the Jamaican Privy Council under Section 91 of the Constitution. The State referred that the ruling of the Judicial Committee of the Privy Council in Neville Lewis v. The Attorney General of Jamaica (2000), regarding fair and proper procedures for the grant of mercy, has become part of Jamaican law, individuals are given notice of hearings and the opportunity to present submissions on their behalf. According to the State, it effectively guarantees persons condemned to death the right to seek a review of their sentence which can lead to the commutation of their sentence.

316. Concerning the fourth recommendation, the State pointed out that Mr. Joseph Thomas is one of the inmates to benefit under the Lambert Watson v. Jamaica [2004]. The State indicated that as a result of the decision in Lambert Watson decision, all persons on “death row” were removed from “death row” and placed within general prison population, pending the outcome of the hearings as to the appropriateness of the death sentence previously imposed mandatorily. The State similarly referred that by virtue of the ruling of the Judicial Committee of the Privy Council in Pratt & Morgan v. the Attorney General of Jamaica [1993], in any instance where the period between a sentence of death and the time of execution exceeds five years, the carrying out of that execution will be presumed to be inhuman and degrading punishment and therefore inconsistent with Jamaican law. Consequently, as a matter of course, death row convicts will have their sentence of death automatically commuted to life imprisonment, once the sentence has not been effected within a five-year period after sentence. Finally, the State indicated that generally, the conditions of detention comply with the standards of humane treatment and that the Inspectorate Unit of the Jamaican Correctional Services continues to monitor conformity to the requisite standards of order, cleanliness and adequacy of space, bedding, ventilation and lighting in all correctional facilities and where necessary the Unit makes recommendations for systematic improvements.

317. In its 2004 and 2005 Annual Report, the Commission stated there had been partial compliance with the Commission’s second and third recommendations in Report N° 127/01. Based upon the latest information presented by the State, the Commission now considers that there has been compliance with the Commission’s second recommendation with the adoption of legislative measures to ensure that no person is sentenced to death pursuant to a mandatory sentencing law. With respect to the remaining recommendations, however, the Commission notes that the latest communication presented by the State of Jamaica, for the most part, reiterates the information provided in its previous response considered by the Commission in its 2004 Annual Report. In light of the foregoing, the Commission reaffirms that there has been partial compliance with the third recommendation and that compliance with the remaining recommendations is pending.

CASE 12.275, Report Nº 58/02, Denton Aitken (Jamaica)

318. In Report Nº 58/02 dated October 21, 2002, the Commission recommended that the State:

1. Grant Mr. Aitken an effective remedy which includes commutation of sentence and compensation.

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

5. Adopt such legislative or other measures as may be necessary to ensure that the right to a fair hearing under Article 8(1) of the Convention and the right to judicial protection under Article 25 of the Convention are given effect in Jamaica in relation to recourse to Constitutional Motions in accordance with the Commission’s analysis in this report.

319. By note dated January 22, 2007, the State of Jamaica indicated that by virtue of the ruling of the Judicial Committee of the Privy Council in Pratt & Morgan v. the Attorney General of Jamaica [1993], in any instance where the period between a sentence of death and the time of execution exceeds five years, the carrying out of that execution will be presumed to be inhuman and degrading punishment and therefore inconsistent with Jamaican law. Consequently, as a matter of course, death row convicts will have their sentence of death automatically commuted to life imprisonment, once the sentence has not been effected within a five-year period after sentence. Furthermore, the State expressed that it regarded the first recommendation that compensation be granted to Denton Aitken, as “vague and incoherent” because the Commission has not set out the purpose for compensation or the underlying principles on which this compensatory package should be based. According to the State, if the Commission’s argument is that compensation is due because the State has not provided an effective remedy in death penalty cases, this point is founded on a false premise because as a result of the decision in Lambert Watson v. Jamaica [2004], the mandatory death penalty was declared unconstitutional in Jamaica and that the law of Jamaica was revised. Therefore, the State would only contemplate compensation for those persons given a mandatory sentence of death after the ruling in Lambert Waston, because to do otherwise, would be to apply the law retroactively.

320. Concerning the second recommendation transcribed above, the State of Jamaica indicated that it had adopted legislative measures to ensure that the mandatory death penalty is not imposed with amendments to the Offences Against the Persons Act 1992, the Parole Act 1978, the Criminal Justice [Reform] Act of 1978 and the Gun Court Act 1974, pursuant to the Offences Against the Persons (Amendment) Act 2005 and the Offences Against the Persons (Amendment) Act 2006. Specifically, the State informed the Commission that the pre-existing legislation classified all cases of murder into categories of capital murder, which attracted an automatic and obligatory sentence, and non-capital murder. The present legislative effectively discarded this two-tiered classification of murder and, therefore, the sentence of death is now optional for all cases in which previously involved mandatory death sentences. In this regard, the State indicated that the court is mandated, before passing sentence, to hear submissions, representations and evidence from the prosecution and the defense in relation to the issue of the sentence to be passed. In addition, the State informed that whenever a sentence of life imprisonment is imposed, the court has the duty to specify the period of imprisonment that should be served before the offender is eligible for parole. The State similarly indicated that provisions have been made for a review of all mandatory sentences of death previously imposed under the Offences Against the Persons (Amendment) Act 1992 and that a result, sentences have been quashed and a judicial determination has been made, or is to be made, as to the appropriate sentence to be imposed for each convict.

321. With regard to the Commission’s third recommendation, the State informed that, pursuant to a recommendation of the Jamaican Privy Council under Section 91 of the Constitution, the Governor General is empowered under Section 90 of the Jamaican Constitution to grant pardon to any person convicted of any offence, grant respite to any person either indefinitely or for a specified period from the execution of any punishment imposed on that person, or, to substitute a less severe form of punishment for that imposed on any person. The State referred that the ruling of the Judicial Committee of the Privy Council in Neville Lewis v. The Attorney General of Jamaica (2000), regarding fair and proper procedures for the grant of mercy, has become part of Jamaican law, individuals are given notice of hearings and the opportunity to present submissions on their behalf. According to the State, it effectively guarantees persons condemned to death the right to seek a review of their sentence which can lead to the commutation of their sentence.

322. With respect to the Commission’s fourth recommendation, the State indicated that by virtue of the Lambert Watson decision, all persons on “death row” were removed from “death row” and placed within general prison population, pending the outcome of the hearings as to the appropriateness of the death sentence previously imposed mandatorily. The State also indicated that generally, the conditions of detention comply with the standards of humane treatment and that the Inspectorate Unit of the Jamaican Correctional Services continues to monitor conformity to the requisite standards of order, cleanliness and adequacy of space, bedding, ventilation and lighting in all correctional facilities and where necessary the Unit makes recommendations for systematic improvements.

323. Concerning the fifth recommendation, the State indicated that it retained the view that judicial protections and fair hearing procedures are effectively guaranteed under the laws of Jamaica. With regard to the provision of legal aid assistance to persons wishing to bring Constitutional Motions, the State expressed it is not adverse to giving consideration to such a course of action but maintained, however, that this is not a requirement of Article 8 of the Convention.

324. In its 2004 and 2005 Annual Report, the Commission stated that there had been partial compliance with the Commission’s first, second, and third recommendations in Report N° 58/02. Based upon the latest information presented by the State, the Commission now considers that there has been compliance with the Commission’s second recommendation with the adoption of legislative measures to ensure that no person is sentenced to death pursuant to a mandatory sentencing law. With respect to the remaining recommendations, the Commission notes that the latest communication presented by the State of Jamaica, for the most part, reiterates the information provided in its previous response considered by the Commission in its 2004 Annual Report. In light of the foregoing, the Commission reaffirms that there has been partial compliance with the first and third recommendation and that compliance with the remaining recommendations, however, is pending.

CASE 12.347, Report Nº 76/02, Dave Sewell (Jamaica)

325. In Report Nº 76/02 dated December 27, 2003, the Commission made the following recommendations to the State:

1. Grant Mr. Sewell an effective remedy which includes commutation of sentence in relation to the mandatory death sentence imposed upon Mr. Sewell, and compensation in respect of the remaining violations of Mr. Sewell’s rights under the American Convention as concluded above.

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

4. Adopt such legislative or other measures as may be necessary to ensure that the right to a fair hearing under Article 8(1) of the Convention and the right to judicial protection under Article 25 of the Convention are given effect in Jamaica in relation to recourse to Constitutional Motions in accordance with the Commission’s analysis in this report.

326. By note dated January 22, 2007, the State informed the Commission that by virtue of the ruling of the Judicial Committee of the Privy Council in Pratt & Morgan v. the Attorney General of Jamaica [1993], in any instance where the period between a sentence of death and the time of execution exceeds five years, the carrying out of that execution will be presumed to be inhuman and degrading punishment and therefore inconsistent with Jamaican law. Consequently, as a matter of course, death row convicts will have their sentence of death automatically commuted to life imprisonment, once the sentence has not been effected within a five-year period after sentence. Furthermore, the State expressed that it regarded the first recommendation that compensation be granted to Mr. Sewell, as vague and incoherent because the Commission has not set out the purpose for compensation or the underlying principles on which this compensatory package should be based. According to the State, if the Commission’s argument is that compensation is due because the State has not provided an effective remedy in death penalty cases, this point is founded on a false premise because as a result of the decision in Lambert Watson v. Jamaica [2005] 1 A.C. 472, the mandatory death penalty was been declared unconstitutional in Jamaica and that the law of Jamaica was revised. Therefore, the State would only contemplate compensation for those persons given a mandatory sentence of death after the ruling in Lambert Waston, because to do otherwise, would be to apply the law retroactively.

327. Concerning the second recommendation transcribed above, the State of Jamaica indicated that it had adopted legislative measures to ensure that the mandatory death penalty is not imposed with amendments to the Offences Against the Persons Act 1992, the Parole Act 1978, the Criminal Justice [Reform] Act of 1978 and the Gun Court Act 1974, pursuant to the Offences Against the Persons (Amendment) Act 2005 and the Offences Against the Persons (Amendment) Act 2006. Specifically, the State informed the Commission that the pre-existing legislation classified all cases of murder into categories of capital murder, which attracted an automatic and obligatory sentence, and non-capital murder. The present legislative change effectively discarded this two-tiered classification of murder and, therefore, the sentence of death is now optional for all cases in which previously involved mandatory death sentences. In this regard, the State indicated that the court is mandated, before passing sentence, to hear submissions, representations and evidence from the prosecution and the defense in relation to the issue of the sentence to be passed. In addition, the State informed that whenever a sentence of life imprisonment is imposed, the court has the duty to specify the period of imprisonment that should be served before the offender is eligible for parole. The State similarly indicated that provisions have been made for a review of all mandatory sentences of death previously imposed under the Offences Against the Persons (Amendment) Act 1992 and that a result, sentences have been quashed and a judicial determination has been made, or is to be made, as to the appropriate sentence to be imposed for each convict.

328. With regard to the Commission’s third recommendation, the State pointed out that Mr. Sewell is one of the inmates to benefit under the Lambert Watson v. Jamaica [2005] 1 A.C. 472 decision. The State indicated that as a result of the decision in Lambert Watson decision, all persons on “death row” were removed from “death row” and placed within general prison population, pending the outcome of the hearings as to the appropriateness of the death sentence previously imposed mandatorily. The State similarly referred that by virtue of the ruling of the Judicial Committee of the Privy Council in Pratt & Morgan v. the Attorney General of Jamaica [1993], in any instance where the period between a sentence of death and the time of execution exceeds five years, the carrying out of that execution will be presumed to be inhuman and degrading punishment and therefore inconsistent with Jamaican law. Consequently, as a matter of course, death row convicts will have their sentence of death automatically commuted to life imprisonment, once the sentence has not been effected within a five-year period after sentence. Finally, the State indicated that generally, the conditions of detention comply with the standards of humane treatment and that the Inspectorate Unit of the Jamaican Correctional Services continues to monitor conformity to the requisite standards of order, cleanliness and adequacy of space, bedding, ventilation and lighting in all correctional facilities and where necessary the Unit makes recommendations for systematic improvements.

329. Finally, concerning the fourth recommendation, the State indicated that it retained the view that judicial protections and fair hearing procedures are effectively guaranteed under the laws of Jamaica. As to the provision of legal aid assistance to persons wishing to bring Constitutional Motions, the State expressed it is not adverse to giving consideration to such a course of action but maintained, however, that this is not a requirement of Article 8 of the Convention.

330. In its 2004 and 2005 Annual Report, the Commission stated that there had been partial compliance with the Commission’s first and second recommendations in Report N° 76/02. Based upon the latest information presented by the State, the Commission considers that the adoption of legislative measures to ensure that no person is sentenced to death pursuant to a mandatory sentencing law has led to compliance with the Commission’s second recommendation. With respect to the remaining recommendations, however, the Commission notes that the latest communication presented by the State of Jamaica does not provide new information on compliance, but instead reiterates the information provided in it previous response that was considered by the Commission in its 2004 Annual Report. In light of the foregoing, the Commission reaffirms that there has been partial compliance with the first recommendation and that compliance with the third and fourth recommendations set forth in Report N° 76/02 remains pending.

CASE 12.417, Report Nº 41/04, Whitley Myrie (Jamaica)

331. In Report Nº 41/04 of October 12, 2004, the IACHR made the following recommendations to the State of Jamaica:

1. Grant Mr. Myrie an effective remedy, which includes a re-trial in accordance with the due process protections prescribed under Article 8 of the Convention or, where a re-trial in compliance with these protections is not possible, his release, and compensation.

2. Adopt such legislative or other measures as may be necessary to ensure that Mr. Myrie’s conditions of detention comply with international standards of humane treatment under Article 5 of the American Convention and other pertinent instruments, as articulated in the present report.

3. Adopt such legislative or other measures as may be necessary to ensure that the right to judicial protection under Article 25 of the Convention and the right to a fair hearing under Article 8(1) of the Convention are given effect in Jamaica in relation to recourse to Constitutional Motions.

332. By note dated January 22, 2007, the State expressed its reservation with the recommendation that Mr. Myrie be granted an effective remedy which includes a re-trial or in the alternative, his release and compensation. In this regard, the State indicated that after Mr. Myrie’s first trial leading to his conviction, the case was brought before the Jamaican Court of Appeal where Mr. Myrie was successful in having his sentence of death commuted to life imprisonment. Given this situation, the State indicated that it can grant no further remedies to Mr. Myrie through the courts nor grant him compensation without a judicial order. Furthermore, according to the State, the recommendation for compensation is vague and incoherent because the Commission has not set out the purpose for compensation or the underlying principles on which this compensatory package should be based. Concerning the Commission’s second recommendation transcribed above, the State indicated that generally, the conditions of detention comply with the standards of humane treatment and that the Inspectorate Unit of the Jamaican Correctional Services continues to monitor conformity to the requisite standards of order, cleanliness and adequacy of space, bedding, ventilation and lighting in all correctional facilities and where necessary the Unit makes recommendations for systematic improvements. With regard to the third recommendation, the State indicated that it retained the view that judicial protections and fair hearing procedures are effectively guaranteed under the laws of Jamaica. As to the provision of legal aid assistance to persons wishing to bring Constitutional Motions, the State expressed it is not adverse to giving consideration to such a course of action but maintained, however, that this is not a requirement of Article 8 of the Convention. Based on the observations presented by the State, the Commission considers that compliance with the recommendations set forth in Report N° 41/04 is pending.

CASE 12.418, Report N° 92/05, Michael Gayle (Jamaica)

333. In Report N° 92/05, issued on October 24, 2005, the Commission made the following recommendations to the State of Jamaica:

1. Grant an effective remedy, which includes the payment of compensation for moral damages suffered by Michael Gayle’s mother and next-of-kin, Jenny Cameron, and a public apology by the State to the family of Michael Gayle.

2. Adopt such legislative or other measures as may be necessary to undertake a thorough and impartial investigation into the human rights violations committed against Mr. Gayle, for the purpose of identifying, prosecuting and punishing all the persons who may be responsible for those violations.

3. Adopt such legislative or other measures as may be necessary to prevent future violations of the nature committed against Mr. Gayle, including training for members of Jamaican security forces in international standards for the use of force and the prohibition of torture and other cruel, inhuman or degrading treatment of punishment, summary executions and arbitrary detention, and undertaking appropriate reforms to the procedures for investigating and prosecuting deprivations of life committed by members of Jamaica’s security forces to ensure that they are thorough, prompt and impartial, in accordance with the findings in the present report. In this respect, the Commission specifically recommends that the State review and strengthen the Public Police Complaints Authority in order to ensure that it is capable of effectively and independently investigating human rights abuses committed by members of the Jamaican security forces.

334. In communication dated December 29, 2006, the State indicated that compensation had already been paid to Michael Gayle’s mother and next-of-kin, Jenny Cameron, and did not accept the Commission’s recommendation that the matter of compensation be “revisited between the parties.” The State specified that the matter was settled by arm’s length negotiations, the sum offered was in keeping with Jamaican precedents and rules, and it was accepted by Ms. Cameron when she had the opportunity to challenge it. In addition, the State informed the Commission that a public apology was given by the Attorney General and Minister of Justice and was published in full in the Sunday Herald, March 14-20, 2004, under the heading “The Michael Gayle Case,” and reported with substantial quotation in the Daily Gleaner, dated March 11, 2004, under the heading “Government ‘regrets’ Michael Gayle’s Death.” Again the State did not agree with the Commission’s recommendation that this matter be “revisited between the parties.” With regard to recommendation N° 2 transcribed above, the State informed the IACHR that thorough and impartial investigations were carried out in the Michael Gayle case. Additionally, the State indicated that training of members of the security forces is sufficient and appropriate to bring those members up to international standards and that it has in place appropriate procedures for the pursuit of against members of the security forces for wrongful killing, though there are significant concerning the garnering and safeguarding of evidence in some cases. With respect to the strengthening of the Public Police Authority, the State informed that draft legislation concerning the creation of an investigative agency independent of the police force that will investigate matters concerning police abuse and related accusations brought against representatives is currently being discussed in various Ministries of Government. In a letter dated January 9, 2007, the Petitioners informed the Commission that the State had not taken any steps to comply with the Commission’s recommendation transcribed above. Based upon the information available, the Commission considers there has been partial compliance with the first recommendation set forth in Report N° 92/05.

CASE 11.565, Report Nº 53/01, González Pérez Sisters (Mexico)

335. On April 4, 2001, the Inter-American Commission approved Report Nº 53/01 on the referenced case, in which it made the following recommendations:

1. Conduct a full, impartial and effective investigation in the ordinary criminal jurisdiction of Mexico to determine the responsibility of all those involved in violating the human rights of Ana, Beatriz and Celia González Pérez and Delia Pérez de González.

2. Provide adequate compensation to Ana, Beatriz and Celia González Pérez and to Delia Pérez de González for the human rights violations established herein.

336. On October 19, 2005, the IACHR held a working meeting with both parties present to follow up on Report Nº 53/01. At that meeting, the Inter-American Commission verified in the presence of the parties that the recommendations were still pending, both as regards the complete, impartial, and effective investigation in the Mexican ordinary criminal courts to determine the responsibility of all the perpetrators of the human rights violations to the detriment of Ana, Beatriz and Celia González Pérez and Delia Pérez de González, and the corresponding reparations.[1] At that working meeting, the petitioners also expressed their concern over the state of health of the González Pérez sisters and their mother. After the Commission consulted with the State on this matter, the State agreed to take steps to provide humanitarian aid to these women. In 2005,[2] the parties reported that the investigations had made no substantive progress. The petitioners in turn reported that during a meeting with the State, it had indicated that “the due reparations would not be granted until the investigations were completed, since only then could the State bring action to recover payments against the agents responsible for the human rights violations suffered by the victims.”

337. On January 12, 2007, the petitioners sent information indicating that no humanitarian aid had been provided to the victims. The IACHR requested information from the State in this regard, and it responded by referring to an agreement signed by the partiers that states that “it is the wish of the State’s representatives and the petitioner to establish that the humanitarian aid offered in this document should in no way be related to the petition or complaint filed in favor of the represented parties with international organizations and agencies [...].” On this point, in view of the agreement of the parties, the Commission will not make a decision as to compliance or noncompliance.

338. As regards compliance with the IACHR’s recommendations, the petitioners indicate that they have not been complied with. The Mexican State reported for its part that “in December 2006, a working meeting with the participation of the petitioners was held in the offices of this department, in order to pursue the pending procedures and formalities [...]. On February 16, 2007, the Foreign Ministry convened a working meeting with the representatives of the authority involved, and they testified to their desire to continue working though the pending procedures. They pledged to request once again, through a cooperation mechanism, the support of the Fiscalía General de Justicia [Public Prosecutor’s Office] of Chiapas, so that that institution would take responsibility for carrying out the procedures in question, in accordance with the characteristics, conditions, and issues agreed on earlier. These procedures are expected to take place between March and April 2007 […].”

339. The Mexican State did not submit information on compliance with the Commission’s second recommendation on granting adequate reparations to Ana, Beatriz and Celia González Pérez and to Delia Pérez de González for the human rights violations established herein.

340. Based on the information received from the parties, the Inter-American Commission concludes that compliance with the recommendations in this case is still pending. The IACHR appreciates the efforts that both parties have made and continue making to achieve this objective, but it considers it necessary to repeat that these efforts must be based on the factual and legal conclusions of Report 53/01 regarding the violations suffered by the González Pérez sisters.

CASE 11.807, Report Nº 69/03, José Alberto Guadarrama García (Mexico)

341. On October 10, 2003, the Inter-American Commission approved Report Nº 69/03 on the referenced case, in which it decided:

1. To approve the friendly settlement agreement signed by the parties on October 30, 1998, as well as the final friendly settlement agreement signed on February 27, 2003.

2. To monitor the points in the agreement that have not been fully satisfied.

342. On November 22, 2006, the Inter-American Commission sent a letter to the parties, specifically concerning compliance with agreement point “a” of paragraph three, which states that one objective is the apprehension of José Luis Velásquez Beltrán, identified as one of the authors of the abduction and subsequent extrajudicial execution of José Alberto Guadarrama García.

343. On December 22, 2006, the Mexican State replied that “pursuant to the outstanding arrest warrant for José Luis Velásquez Beltrán […] the PGJ-MOR took the following measures: on December 4, 2002, a working meeting was held between representatives of the Mexican Government and of the next-of-kin of José Alberto Guadarrama García, where […] the latter were informed of the measures already taken and that will be taken to apprehend José Luís Velásquez Beltrán. It was also observed that the information obtained from the inquiry conducted by the PGJ-MOR with a view to his apprehension was based on two theories: the first was that he was probably in the United States; the second was that he was in the State of Guerrero. Accordingly, from time to time, the investigating agent’s staff went to that state, specifically to the towns of Chipancingo, Chilapa, Acapulco and Zihuatanejo. These leads were found to be pure speculation.” The State also reported that “while the friendly settlement proceeding was in progress, local authorities permanently staked out the private residence of José Luis Velásquez Beltrán to establish his whereabouts. It was also considered that Velásquez Beltrán might have gone to the United States. Therefore, on December 7, 1998, the PGR-MOR requested the assistance of a Deputy Prosecutor with the FBI to conduct an investigation to establish whether there was any indication that Velásquez Beltrán had been in that country, although there was no information to suggest that he had traveled to the United States. Continuing the investigations to establish the whereabouts of Velásquez Beltrán, his own family believed that he had disappeared. They said that they had not heard from him or had news of him for eight years. The last time they saw him, he was heading off to work dressed in U.S. military fatigues.”

344. The State reports that “on July 24, another working meeting was held where the apprehension of José Luis Velásquez Beltrán was discussed. The petitioners’ representatives claimed to have seen him in the State of Morelos. The representatives of the PGJ- MOR reacted by giving the direct telephone numbers of high-ranking officials with the institution (a prosecutor and his private secretary) to the next-of-kin of Guadarrama García so that if they learned his whereabouts they might report it immediately. The PGR-MOR has not received any telephone call or news of his whereabouts.” It adds that “on March 31, 2005, the PGJ-MOR’s Director of Arrests reported that since the time the order for the arrest of José Luis Velásquez was received (November 10, 1997), staff under his command had continued to take the measures necessary to capture him. The matter is also being studied by representatives of the Office of the Deputy Director for Human Rights of the PGJ-MOR. For four years now, they have been focusing on conducting inquiries and operations in partnership with the various State Prosecutor’s Offices nationwide and with the Technical Secretariat of the National Conference for Justice and the General Bureau of Extradition and Legal Assistance, both under the Office of the Attorney General of the Nation, so as to provide support in searching for and apprehending José Luis Velásquez Beltrán, both in Mexico and in the United States.”

345. The petitioners, for their part, did not supply any information regarding compliance with point “a” of paragraph three of the agreement, in which the capture of José Luis Velásquez Beltrán is declared to be one of the objectives of the agreement.

346. The Inter-American Commission takes note of the information received from both parties and appreciates the support that each has given to comply with the points of the friendly settlement agreement. However, the information received indicates that José Luis Velásquez Beltrán has still not been apprehended and no one has been punished for the violations of José Alberto Guadarrama García’s human rights.

[TABLE OF CONTENTS | PREVIOUS | NEXT]

[1] The position of the Inter-American Commission was published in its Report on the 123rd session. See IACHR, Press Release Nº 35/03, paragraph IV, “Follow-Up on Recommendations,” p. 13.

[2] IACHR, 2005 Annual Report, follow-up on case 11.565, Report Nº 53/01.