IACHR ANNUAL REPORT 2008

CHAPTER III - THE PETITION AND CASE SYSTEM

  Status of compliance with the recommendations of the IACHR (Continuation)

Case 12.264, Report N° 1/06, Franz Britton (Guyana)

531.          In Report N° 1/06, dated February 28, 2006 the Commission concluded that agents of the State security forces abducted and/or detained Franz Britton and that during the following six years his whereabouts have not been identified and that, as a result, Guyana violated the rights of Franz Britton to life, liberty, personal liberty, judicial protection, arbitrary arrest and due process of law, all recognized, respectively, in Articles I, XVIII, XXV, XXV and XXVI of the American Declaration.

532.          The Commission issued the following recommendations to the State:

1.  Carry out a serious, impartial and effective investigation by means of the competent organs, to establish the whereabouts of Franz Britton and to identify those responsible for his detention-disappearance, and, by means of appropriate criminal proceedings, to punish those responsible for such grave acts in accordance with the law.

2.  Adopt the necessary legislative or other measures to prevent the recurrence of such events and provide, in all cases, the required due process and effective means of establishing the whereabouts and fate of anyone held in State custody.

3.  Adopt measures to make full reparation for the proven violations, including taking steps to locate the remains of Franz Britton and to inform the family of their whereabouts; making the arrangements necessary to facilitate the wishes of his family as to an appropriate final resting place; and providing reparations for the relatives of Franz Britton including moral and material damages in compensation for the suffering occasioned by Mr. Britton’s disappearance and not knowing his fate.

533.          On November 2, 2007 and November 4, 2008 the Commission requested up-to-date information from the State and the petitioner regarding the compliance with the recommendations issued in this case.  The Commission did not receive a response within the specified timeframe from either party.

534.          Based on the information available, the Commission considers that compliance with the recommendations is pending.

Case 11.335, Report N° 78/02, Guy Malary (Haiti)

535.          In Report N° 78/02 of December 27, 2002, the IACHR concluded that: a) the Haitian State violated the right to life enshrined in Article 4 of the American Convention to the detriment of Mr. Guy Malary;  b) the Haitian State violated the right to a fair trial and the right to judicial protection enshrined in Articles 8(1) and 25 of the American Convention to the detriment of the next-of-kin of Mr. Guy Malary; and c) that these violations of human rights involves that the Haitian State breached the general obligation to respect and guarantee rights under Article 1(1) of the above-cited international instrument, to the detriment of Mr. Guy Malary and his next-of-kin.

536.          The IACHR issued the following recommendations to the State:

1. 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.

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

3. 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.

537.          Despite repeated requests to both parties for information, most recently on November 4, 2008, neither of them has provided the Commission with up-dated information concerning compliance with the Commission’s recommendations in Report N° 78/02.

538.          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 N° 49/01, Leroy Lamey, Kevin Mykoo, Milton Montique and Dalton Daley (Jamaica)

539.          In Report N° 49/01 dated April 4, 2001 the Commission concluded that the State was responsible for: a) violating the rights of the victims in Case Nos. 11.826 (Leroy Lamey), 11.843 (Kevin Mykoo), 11.846 (Milton Montique) and 11.847 (Dalton Daley) under Articles 4(1), 5(1), 5(2) and 8(1), in conjunction with violations of Article 1(1) of the American Convention, by sentencing these victims to a mandatory death penalty; b) violating the rights of the victims in Case Nos. 11.826 (Leroy Lamey), 11.843 (Kevin Mykoo), 11.846 (Milton Montique) and 11.847 (Dalton Daley) under Article 4(6) of the Convention, in conjunction with violations of Article 1(1) of the Convention, by failing to provide these victims with an effective right to apply for amnesty, pardon or commutation of sentence; c) violating the rights of the victims in Case Nos. 11.843 (Kevin Mykoo), 11.846 (Milton Montique) and 11.847 (Dalton Daley) under Article 7(5) and 7(6) of the Convention, in conjunction with violations of Article 1(1) of the Convention, by failing to promptly bring the victims before a judge following their arrests, and by failing to ensure their recourse without delay to a competent court to determine the lawfulness of their detention; d) violating the rights of the victims in Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley) under Articles 7(5) and 8(1) of the Convention, in conjunction with violations of Article 1(1) of the Convention, by reason of the delays in trying the victims; e) violating the rights of the victims in Case Nos. 11.826 (Leroy Lamey), 11.843 (Kevin Mykoo), 11.846 (Milton Montique) and 11.847 (Dalton Daley) under Article 5(1) and 5(2) of the Convention, in conjunction with violations of Article 1(1) of the Convention, by reason of the victims' conditions of detention: f) violating the rights of the victims in Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley) under Articles 8(2)(d) and 8(2)(e) in conjunction with violations of Article 1(1) of the Convention, by denying the victims access to legal counsel for prolonged periods following their arrests; and g) violating the rights of the victims in Case Nos. 11.826 (Leroy Lamey), 11.843 (Kevin Mykoo), 11.846 (Milton Montique) and 11.847 (Dalton Daley) under Articles 8 and 25 of the Convention, in conjunction with violations of Article 1(1) of the Convention, by failing to make legal aid available to these victims to pursue Constitutional Motions. 

540.          The IACHR issued the following recommendations to the State:

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.

541.          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 executed 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.

542.          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.

543.          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.

544.          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.

545.          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.

546.          The Commission points out that in its 2004 and 2005 and 2006 Annual Reports, the Commission stated there had been partial compliance with the Commission’s first, second, and third recommendations. The Commission notes that the last information from the parties following its request for details on compliance with its recommendations was received on January 22, 2007, and that since then it has received no more up-to-date information. 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.

547.          On June 19, 2008, the petitioners for Kevin Mykoo sent a letter where they informed that their client expressed that the environment at his new prison, South Camp, is much better than the previous one.  However, Mr. Mykoo raised the following issues that pertain to the recommendation on conditions of detention: water leaking through the roof of his cell< an infestation of red ants in the cell; and the lack of access to a dentist since 2005.

548.          The IACHR requested updated information to both parties on November 4, 2008, but neither of them replied.

549.          The Commission concludes that the State complied partially with the aforementioned recommendations.

Case 12.069, Report N° 50/01, Damion Thomas (Jamaica)

550.          In Report N° 50/01 dated April 4, 2001 the Commission concluded that the State was responsible for failing to respect the physical, mental and moral integrity of Damion Thomas and, in all of the circumstances, subjecting Damion Thomas to cruel or inhuman punishment or treatment, contrary to Articles 5(1) and 5(2) of the Convention, all in conjunction with violations of the State's obligations under Article 1(1) of the Convention.

551.          The IACHR issued the following recommendations to 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.

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.

552.          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 N° 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.

553.          On November 4, 2008, the IACHR requested updated information from both parties on compliance with the recommendations.  The State did not respond, but the petitioners sent a letter dated November 17, 2008.  In this communication, the petitioners indicated their position as follows:

1.  Damion Thomas has not been granted any remedy by the State of Jamaica, nor has he been granted any compensation;

2.  The State of Jamaica has not conducted any investigation into the facts of the incidents which we denounced to the Commission on behalf of Damion Thomas.  As far as we are aware, responsibility has not been attributed to anyone in respect of the violations of Damion Thomas’ human rights and no remedial measures have been undertaken;

3.  The State of Jamaica has not carried out any review of the practices and procedures of officials involved in the incarceration and supervision of prisoners in Jamaica (in either St. Catherine District prison or the Horizon Remand Centre, to which Damion Thomas was transferred on the 3d March 2007).  Neither are we aware of officials being given any training relating to the humane treatment of prisoners and restrictions on the use of force against them; and

4.  The State of Jamaica has not undertaken any review of the practices and procedures through which prisoners may complain of any alleged mistreatment, or about their conditions of detention.  We therefore understand that complaints of mistreatment by Jamaican prisoners, or complaints about their conditions of detention, are still not being properly investigated and resolved.

554.          Based on the information at its disposal, the Commission considers that there has been partial compliance with the recommendations.

Case 12.183, Report N° 127/01, Joseph Thomas (Jamaica)

555.          In Report N° 127/01, dated December 3, 2001, the Commission concluded that the State was responsible for: a) violating Mr. Thomas' rights under Articles 4(1), 5(1), 5(2) and 8(1) of the Convention, in conjunction with violations of Articles 1(1) and 2 of the Convention, by sentencing him to a mandatory death penalty; b) violating Mr. Thomas' rights under Article 4(6) of the Convention, in conjunction with violations of Articles 1(1) and 2 of the Convention, by failing to provide Mr. Thomas with an effective right to apply for amnesty, pardon or commutation of sentence; c)  violating Mr. Thomas' rights under Articles 5(1) and 5(2) of the Convention, in conjunction with violations of Article 1(1) of the Convention, by reason of his conditions of detention; and d) violating Mr. Thomas' rights under Articles 8(1) and 8(2) of the Convention, in conjunction with violations of Article 1(1) of the Convention, by reason of the manner in which the judge instructed the jury during Mr. Thomas' trial.

556.          The IACHR issued the following recommendations to 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.

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.

557.          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.

558.          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.

559.          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.

560.          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.

561.          In its 2004, 2006 and 2007 Annual Reports, the Commission stated there had been partial compliance with the Commission’s second and third recommendations in Report N° 127/01.  The Commission notes that the last information from the parties following its request for details on compliance with its recommendations was received on January 22, 2007, and that since then it has received no more up-to-date information. 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.

562.          The Commission concludes that the State complied partially with the aforementioned recommendations.

Case 12.275, Report N° 58/02, Denton Aitken (Jamaica)

563.          In Report N° 58/02 dated October 21, 2002, the Commission concluded that the State was responsible for: a) violating Articles 4(1), 5(1), 5(2) and 8(1) of the Convention in respect of Mr. Aitken, in conjunction with violations of Articles 1(1) and 2 of the Convention, by sentencing him to a mandatory death penalty; b) violating Article 4(6) of the Convention in respect of Mr. Aitken, in conjunction with violations of Articles 1(1) and 2 of the Convention, by failing to provide him with an effective right to apply for amnesty, pardon or commutation of sentence; c) violating Articles 5(1) and 5(2) of the Convention in respect of Mr. Aitken, in conjunction with violations of Article 1(1) of the Convention, by reason of his conditions of detention; and d) violating Articles 8(1) and 25 of the Convention in respect of Mr. Aitken, in conjunction with violations of Article 1(1) of the Convention, by reason of the denial to Mr. Aitken of recourse to a Constitutional Motion for the determination of his rights under domestic law and the Convention in connection with the criminal proceedings against him.

564.          The IACHR issued the following recommendations to the State:

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

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

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

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

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

565.          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 Watson, because to do otherwise, would be to apply the law retroactively.

566.          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.

567.          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.

568.          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.

569.          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.

570.          In its 2004, 2005 and 2007 Annual Reports, the Commission stated that there had been partial compliance with the Commission’s first, second, and third recommendations in Report N° 58/02.  The Commission notes that the last information from the parties following its request for details on compliance with its recommendations was received on January 22, 2007, and that since then it has received no more up-to-date information. 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.

571.          The Commission concludes that the State complied partially with the aforementioned recommendations.

Case 12.347, Report N° 76/02, Dave Sewell (Jamaica)

572.          In Report N° 76/02 dated December 27, 2003, the Commission concluded that the State was responsible for: a) violating Articles 4(1), 5(1), 5(2) and 8(1) of the Convention in respect of Mr. Sewell, in conjunction with violations of Articles 1(1) and 2 of the Convention, by sentencing him to a mandatory death penalty; b) violating Articles 5(1) and 5(2) of the Convention in respect of Mr. Sewell, in conjunction with violations of Article 1(1) of the Convention, by reason of his treatment and conditions in detention; c) violating Articles 7(5) and 8(1) of the Convention, in conjunction with violations of Article 1(1) of the Convention, by reason of the delay in trying Mr. Sewell; and d) violating Articles 8(1) and 25 of the Convention in respect of Mr. Sewell, in conjunction with violations of Article 1(1) of the Convention, by reason of the denial to Mr. Sewell of recourse to a Constitutional Motion for the determination of his rights under domestic law and the Convention in connection with the criminal proceedings against him.

573.          The IACHR issued 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.

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 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.

574.          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 Watson, because to do otherwise, would be to apply the law retroactively.

575.          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.

576.          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.

577.          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.

578.          In its 2004, 2005 and 2007 Annual Reports, the Commission stated that there had been partial compliance with the Commission’s first and second recommendations in Report N° 76/02.  The Commission notes that the last information from the parties following its request for details on compliance with its recommendations was received on January 22, 2007, and that since then it has received no more up-to-date information. 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.

579.          The Commission concludes that the State complied partially with the aforementioned recommendations.

Case 12.417, Report N° 41/04, Whitley Myrie (Jamaica)

580.          In Report N° 41/04 of October 12, 2004, the IACHR concluded the State was responsible for: a) violating Mr. Myrie’s rights under Articles 5(1) and 5(2) of the Convention, in conjunction with violations of Article 1(1) of the Convention, because of his conditions of detention; b) violating Mr. Myrie’s rights under Articles 8(1) and 8(2) of the Convention, in conjunction with violations of Article 1(1) of the Convention, due to the trial judge’s failure to ensure that the jury was not present during the voir dire on Mr. Myrie’s statement, and the trial judge’s failure to postpone the trial when Mr. Myrie’s counsel was not present and thereby denying Mr. Myrie full due process during his trial; c) violating Mr. Myrie’s rights under Articles 8(1) and 8(2) of the Convention, in conjunction with violations of Article 1(1) of the Convention, by failing to provide him with the assistance of competent and effective counsel during his trial; and d) violating Mr. Myrie’s rights under Articles 25 and 8 of the Convention, in conjunction with violations of Article 1(1) of the Convention, by failing to provide Mr. Myrie with effective access to a Constitutional Motion for the protection of his fundamental rights.

581.          The IACHR issued the following recommendations to the State:

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.

582.          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.  The Commission notes that the last information from the parties following its request for details on compliance with its recommendations was received on January 22, 2007, and that since then it has received no more up-to-date information.

583.          The Commission, therefore, concludes that compliance with the recommendations of Report 41/04 remains pending.

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

584.          In Report N° 92/05, issued on October 24, 2005, the Commission concluded that the State was responsible for: a) violating Mr. Gayle’s right to life under Article 4 of the Convention, in conjunction with violations of Article 1(1) of the Convention, because of his unlawful killing at the hands of members of the Jamaican security forces; b) violating Mr. Gayle’s right not to be subjected to torture and other inhumane treatment under Articles 5(1) and 5(2) of the Convention, in conjunction with violations of Article 1(1) of the Convention, because of the assault perpetrated upon him by State agents and its effects, which led to his death; c) violating Mr. Gayle’s right to personal liberty under Article 7 of the Convention, in conjunction with violations of Article 1(1) of the Convention, because of his unlawful detention and arrest on false charges; and d) violating Mr. Gayle’s rights to a fair trial and to judicial protection under Articles 8 and 25 of the Convention, in conjunction with violations of Article 1(1) of the Convention, by failing to undertake a prompt, effective, impartial and independent investigation into human rights violations committed against Mr. Gayle and to prosecute and punish those responsible.

585.          The IACHR issued the following recommendations to the State:

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.

586.          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 No. 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. The Commission notes that the last information from the parties following its request for details on compliance with its recommendations was received on January 22, 2007, and that since then it has received no more up-to-date information.

587.          The Commission concludes that the State complied partially with the aforementioned recommendations.

Case 12.447, Report N° 61/06, Derrick Tracey (Jamaica)

588.          In Report N° 61/06, adopted on July 20, 2006, the Commission concluded that the State was responsible for: a) violations of Mr. Tracey’s right to counsel and his right to obtain the appearance of persons who may throw light on the facts contrary to Article 8(2)(d), (e) and (f) of the Convention, in conjunction with Articles 1(1) and 2 of the Convention, in connection with the use of his statement against him at trial; b) violating Mr. Tracey’s right to a fair trial under Article 8(2)(c) of the Convention, in conjunction with a violation of Article 1(1) of the Convention, due to the inadequate time and means provide to Mr. Tracey and his attorney to prepare his defense; and c) violations of Mr. Tracey’s right to a fair trial and his right to judicial protection under Article 8(2)(e) and (h) and 25 of the Convention, in conjunction with a violation of Articles 1(1)  and 2 of the Convention, due to the State’s failure to provide Mr. Tracey with legal counsel to appeal his judgment to a higher court.

589.          The IACHR issued the following recommendations to the State of Jamaica:

1.         Grant an effective remedy, which includes a re-trial of the charges against Mr. Tracey in accordance with the fair trial protections under the American Convention.

2.         Adopt such legislative or other measures as may be necessary to ensure that indigent criminal defendants are afforded their right to legal counsel in accordance with Article 8.2.e of the American Convention, in circumstances in which legal representation is necessary to ensure the right to a fair trial and the right to appeal a judgment to a higher court.

3.         Adopt such legislative or other measures as may be necessary to ensure that any confession of guilt by an accused is valid only if it is given in an environment free from coercion of any kind, in accordance with Article 8.3 of the Convention.

590.          The parties have provided the Commission with no up-to-date information regarding compliance with its recommendations set out in Report 61/06. In light of the available information, the Commission holds that compliance with its recommendations is still pending.

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

591.          In Report No. 53/01, of April 4, 2001, the Commission concluded that the Mexican State had violatated, to the detriment of Ms. Delia Pérez de González and her daughters Ana, Beatriz, and Celia González Pérez, the following rights enshrined in the American Convention: the right to personal liberty (Article 7); the right to humane treatment and protection of honor and dignity (Articles 5 and 11); judicial guarantees and judicial protection (Articles 8 and 25); with respect to Celia González Pérez, the rights of the child (Article 19); all those in conjunction with the general obligation to respect and ensure the rights, provided for in Article 1(1) of the Convention.  In addition, it concluded that the State was responsible for violating Article 8 of the Inter-American Convention to Prevent and Punish Torture.

592.          According to the complaint, on June 4, 1994, a group of soldiers detained the González Pérez sisters and their mother Delia Pérez de González, in the state of Chiapas, to question them, and deprived them of their liberty for two hours. The petitioners allege that during that time the three sisters were separated from their mother, beaten, and raped repeatedly by the soldiers; that on June 30, 1994, the complaint was filed with the Federal Public Ministry (Office of the Attorney General, or “PGR” - Procuraduría General de la República) based on a gynecological medical exam, which was corroborated before that institution by the statements by Ana and Beatriz, the two older sisters; that the case was removed to the Office of the Attorney General for Military Justice (“PGJM”: Procuraduría General de Justicia Militar) in September 1994; and that it finally decided to archive the case given their failure to come forward to make statements once again and to undergo expert gynecological exams. The petitioners argue that the State breached its obligation to investigate the facts alleged, punish the persons responsible, and make reparation for the violations.

593.          The Commission made the following recommendations to the State:

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.

594.          The parties held a working meeting during the 131^st regular period of sessions of the IACHR, and there agreed that the petitioners would collaborate with the State for undertaking the three investigative steps that remain in the context of the military jurisdiction (providing information for a police sketch; the testimony of one of the victims, and an addition to the statement by the victims’ mother) under the assumption that afterwards the case will be fully investigated in the ordinary criminal jurisdiction. The State, for its part, undertook to present observations on the proposed integral reparation for the harm presented by the petitioners in July 2001, which was submitted to the State anew at the working meeting.

595.          On December 8, 2008, the Mexican State reported that the authorities of the State have maintained a constant dialogue with the petitioners’ representatives for the purpose of reaching agreement on the terms and conditions for carrying out the investigative steps in question. It adds that as soon as the State has any additional information it will forward it to the IACHR.

596.          On December 4, 2008, the petitioners reported that in carrying out the agreement that came out of the working meeting, on April 11, 2008, they proposed to the State that the steps pending be carried out in September. In the proposal with the date, they stated the conditions for carrying out the investigative steps, including that the personnel in charge be qualified and have a gender perspective. They add that based on conversations with the State, they traveled to Chiapas on September 10 so these aspects of the investigation could go forward, but they did not due to the lack of interest on the part of the military jurisdiction. They added that the investigation has yet to be removed to the civilian jurisdiction.

597.          In the same note, the petitioners report that the State has yet to respond to their proposal for reparations. The petitioners state their concern over the lack of a response, and describe the precarious economic situation and living conditions of the victims, which include serious health problems stemming from the violations described in the Report by the IACHR, and that they do not yet have medical treatment.

598.          In view of the foregoing, the IACHR concludes that the recommendations noted have yet to be carried out.

Case 12.130, Report No. 2/06, Miguel Orlando Muñoz Guzmán (Mexico)

599.          In Report No. 2/06 of February 28, 2006, the Commission concluded that the record in the case of Miguel Orlando Muñoz Guzmán did not contain elements that would allow one to attribute international responsibility to the Mexican State for his forced disappearance. Accordingly, it did not find the Mexican State responsible for the violation of the rights to life, humane treatment, or personal liberty, to the detriment of Miguel Orlando Muñoz Guzmán; nor of the right to humane treatment of his next-of-kin.  On the other hand, the IACHR determined in that report that the Mexican State was responsible for the violation of the rights to judicial guarantees and judicial protection contained in Articles 8 and 25 of the American Convention, in connection with Article 1(1) of the same international instrument.

600.          According to the complaint, Mr. Miguel Orlando Muñoz Guzmán, a lieutenant in the Mexican Army, disappeared on May 8, 1993, at the age of 25 years. He was last seen on that date by his comrades of the 26^th Battalion of Ciudad Juárez, state of Chihuahua, Mexico, when we was preparing to go on leave. Lt. Muñoz Guzmán’s family indicates that he was an officer devoted to his career, and therefore they call into question the credibility of the Army’s official version, according to which he deserted and then traveled to the United States.  They explain that to date no serious investigation has been carried out in Mexico to determine his whereabouts or to punish the persons responsible for his forced disappearance. They argue that the irregularities that have surrounded this case have been deliberate, with the intent of covering up the persons responsible. They also mention the fact that the family began to receive anonymous threats, which they attribute to members of the military, from the moment they went to report the facts to the authorities.

601.          The IACHR made the following recommendations to the State:

1. Conduct a complete, impartial, and effective investigation in the Mexican general jurisdiction to determine the whereabouts of Miguel Orlando Muñoz Guzmán; and, if it were determined that he was a victim of forced disappearance, to sanction all those responsible for such crime.

2. Provide adequate compensation to the relatives of the family of Miguel Orlando Muñoz Guzmán for the human rights violations established herein.

602.          On November 3, 2008, the IACHR asked both parties to report on measures taken to carry out those recommendations. The State did not respond to that request, and the petitioners responded on December 8, 2008. The information from the petitioners indicates that various meetings have been held with the State in which some agreements have been signed which, however, have not been carried out. The petitioners conclude that the recommendations of the IACHR have not been carried out by the State.

603.          Accordingly, the Commission concludes that the recommendations have yet to be carried out.

Petition 161-02, Report No. 21/07, Paulina del Carmen Ramírez Jacinto (Mexico)

604.          On March 9, 2007, by Report No. 21/07, the Commission approved a friendly settlement agreement in the case of Paulina del Carmen Ramírez Jacinto. In summary, the petitioners alleged that on July 31, 1999, when Paulina del Carmen Ramírez Jacinto was 14 years old, she was the victim of a rape perpetrated in her home. The act was reported immediately to the Agency of the Public Ministry Specialized in Sexual Crimes and Family Violence. The petitioners alleged that he Public Ministry did not inform Paulina del Carmen Ramírez Jacinto or her mother of the existence of emergency oral contraception, and the rape led to a pregnancy. The petitioners state that under Article 136 of the Criminal Code of Baja California, Paulina del Carmen Ramírez Jacinto had the right to a legal abortion, upon authorization from the Public Ministry, since the rape is one of the exceptions in which abortion is not criminalized. Nonetheless, despite the insistence in performing that procedure to which she had a right, representatives of the Public Ministry and of the hospitals to which Paulina Ramírez Jacinto was referred imposed various administrative and psychological barriers, providing false information on the procedure and its consequences, to the point of influencing her decision. Finally, the interruption of the pregnancy was not performed.

605.          According to the friendly settlement agreement, the State undertook as follows:

ONE: The Government of Baja California shall hand over, on March 4, 2006, as consequential damages covering the legal expenses incurred in processing the case and the medical expenses incurred by Paulina del Carmen Ramírez Jacinto and I. R. J. (sic) as a result of the incident, the amount of $60,000 (sixty thousand pesos).

TWO: Paulina del Carmen Ramírez Jacinto acknowledges that the Government of Baja California gave to her, in June and August 2001, as assistance for maintenance expenses and assistance with spending on necessities and school supplies, the amount of $114,000 (one hundred and fourteen thousand pesos).

THREE: Paulina del Carmen Ramírez Jacinto acknowledges that the Government of Baja California gave to her, in June 2001, as support for housing expenses, the amount of $220,000 (two hundred and twenty thousand pesos).

FOUR: Both Paulina del Carmen Ramírez Jacinto and I. R. J. (sic) shall be provided with health services by the Social Services and Security Institute of the Government and Municipal Workers of Baja California State (ISSSTECALI), in which they are both enrolled as of March 13, 2006. For this purpose, the head of ISSSTECALI’s Department of Enrollments and Entitlements shall be the agent of record on behalf of the Government of Baja California.

Said health services shall be given to Paulina del Carmen Ramírez Jacinto and to I. R. J. (sic) on a continuous and permanent basis until I. R. J. (sic) reaches adult age or, should I. R. J. (sic) decide to pursue higher or university studies, until he concludes his higher education.

FIVE: Psychological care for I. R. J. (sic) and Paulina Ramírez Jacinto shall be provided by the specialists of the Mental Health Center of the Baja California State Health Secretariat. For this purpose, they shall be assigned an account executive and they may avail themselves of those services whenever needed at any time following the signature of this agreement.

The account executive to be appointed on March 13, 2006, shall be the head of the Psychology Department of the Mental Health Center, who shall receive them at the premises of that Center (Calle 11 & Río Papaloapan S/N, Fraccionamiento Viña Verde, in Mexicali, Baja California).

SIX: The Government of Baja California shall provide I. R. J., at the start of each academic year, with school supplies, enrollment fees, and text books up to and including the high school level. For this purpose, it will grant, in coupons, at the start of each school year, the amount of $5,290 (five thousand two hundred and ninety pesos), through the offices of the State Secretariat for Education and Social Welfare.

The school supplies to be given to I. R. J. (sic) are those set out in the “List of school supplies” (Annex 1) and any others added to that list over time by the State Secretariat for Education and Social Welfare.

In order for these items to be provided on a timely basis, Paulina del Carmen Ramírez Jacinto shall report to the offices of the relevant school level section in the two weeks prior to the start of the corresponding school year, so she can be given the aforesaid amount.

The Government of Baja California agrees to provide I. R. J. (sic), should he decide to continue with higher or university studies following the conclusion of his high school or vocational education, with the corresponding studies at a public institution. The support shall consist of enrollment fees, transportation, and academic supplies for as long as he continues to obtain passing grades in his studies. This support shall increase over time in accordance with the needs of I. R. J. (sic) and taking into consideration the inflation index published by the Bank of Mexico.

SEVEN: On January 15, 2006, the Government of Baja California handed over, as a one-off presentation, a computer and printer.

EIGHT: On March 4 the Government of Baja California will hand over the sum of $20,000.00 (twenty thousand pesos) through the State Social Development Secretariat’s Productive Projects program, to help Paulina del Carmen Ramírez Jacinto in setting up a microenterprise. In implementing this project, she will receive direct assistance from the aforesaid Productive Projects office.

These advisory services shall be provided by the productive projects director of the Social Development Secretariat, at its premises located on the second floor of the executive branch building (Calzada Independencia No. 994, Civic and Commercial Center, Mexicali, Baja California). This assistance shall be provided in three-hour sessions over four weeks (for a total of four sessions) and shall commence once this agreement has been signed.

NINE: The Government of Baja California shall deliver to Paulina Ramírez on March 31, 2006, the sum of $265,000 (two hundred and sixty-five thousand pesos) as a one-off payment for moral damages.

TEN: The Government of Baja California offered a Public Acknowledgement of Responsibility in accordance with the terms set out in the documents attached to this agreement, published in the local newspapers La Voz de la Frontera and La Crónica on December 30, 2005, (Annex 2) as well as in the Official Gazette of the State of Baja California on February 10, 2006 (Annex 3).

ELEVEN: The Government of Baja California, through the Directorate of Legislative Studies and Projects, shall submit to and promote before the State Congress the legislative proposals submitted by the petitioners and agreed on with the state government.

For this purpose a working committee was set up, comprising both parties; this committee is currently working on a final proposal, which is to be presented no later than the last day of April, 2006. Once the legislative proposal agreed on by the parties has been made available, it will be submitted to the Baja California State Congress on May 16, 2006 (Annex 4; draft under analysis by the parties).

As regards the proposed amendment of Article 79 of the Regulations of the Organic Law of the Office of the Attorney General for Justice and the proposed circular from the Health Secretariat, the Government of the State of Baja California agrees, within the confines of its competence and powers, to begin the corresponding legal formalities as requested by the petitioners during the first half of April 2006 (Annexes 5 and 6).

Additionally, the local government agrees to schedule the training courses to be conducted by the petitioners, as agreed on at the technical analysis meeting held in Mexicali, Baja California, on January 12, 2006.

TWELVE: The Mexican State, through the Health Secretariat, agrees to:

1.         Conduct a national survey, involving state representation, to assess the enforcement of Official Mexican Standard NOM 190-SSA1-1999 regarding medical assistance in cases of domestic violence, and to measure progress with the implementation of the National Program for the Prevention and Attention of Domestic, Sexual, and Violence against Women.

2.         Update the aforesaid Official Standard, to expand its goals and scope and to expressly include sexual violence occurring outside the family context. To this end, the petitioners shall be given the preliminary draft of the amendments to the Standard, so they can present whatever comments they deem relevant to the National Consultative Committee for Standardization and Disease Control and Prevention.

3.         Draw up and deliver a circular from the federal Health Secretariat to the state health services and other sector agencies, in order to strengthen their commitment toward ending violations of the right of women to the legal termination of a pregnancy, to be sent out no later than the second half of March 2006.

4.         Through the National Center for Gender Equality and Reproductive Health, conduct a review of books, indexed scientific articles, postgraduate theses, and documented governmental and civil society reports dealing with abortion in Mexico, in order to prepare an analysis of the information that exists and detect shortcomings in that information, to be delivered to the petitioners in November 2006.

606.          On March 11, 2008, a working meeting was held with the parties. At that meeting the parties agreed that the following points needed follow-up in relation to the friendly settlement agreement:

-           School Support: The sum already set in the agreement shall be paid, for which the government of the State shall develop a mechanism to ensure it is handed over on a timely basis, which will be within 30 days of the beginning of the school year.

-           Legislative Reform: The State will seek to foster lobbying of the new local congress to encourage the amendment of Article 136 of the local Criminal Code, Article 20 (f, XI) of the Code of Criminal Procedure, and add 22 bis and 22 bis 1 of the health law.

-           Training: The State will seek to take initiatives with the appropriate offices to hold training courses, after receiving a proposal from the petitioners.

-           Circular: The State will seek, with the appropriate offices, to see to it that the local circular is published in the official gazette of the State. Both parties undertake to continue a dialogue on this point of the agreement.

-           Productive Project: The State shall inform the petitioners on implementation of this point, and a copy of the permit will be given to them. The State will take up anew the commitment to give the technical training course for the productive project.

607.          The Commission requested up-to-date information from the two parties on November 4, 2008. The State answered with respect to school support, indicating that on July 25 and 30, 2008, Paulina Ramírez Jacinto was given a check in the amount of $ 5,920.00 M.N., as well as a school package.  On the legislative reform, it indicated that on November 20, 2008, the Director of Operation and Legislative Monitoring forwarded to the speaker of the Assembly of the State of Baja California Official Note DLS/CVG/076/2008, by which he asks that the topic be taken up anew, and that impetus be given to that initiative. On the training, it reported that the organization GIRE has had contact with the Secretariat of Interior of the State to agree upon the new timetable of courses that will be given. With respect to the circular to which reference is made in the friendly settlement agreement, the State indicated that it was published in the entry halls of each of the areas, hospitals, and health centers of the Secretariat of Health in the state of Baja California, and it does not consider the possibility of publishing that circular in the Official Gazette of the state of Baja California.

608.          On the productive project, the State indicated that at the meeting held March 11, 2008, the State undertook to seek from the municipal authority a permit required for operating the Ms. Ramírez Jacinto’s grocery business. In addition, the permit was secured from the fire department in April 2008 requested by Ms. Ramírez Jacinto. It indicated that subsequently Ms. Ramírez Jacinto applied for the land use permit, and the state of Baja California is taking the necessary steps vis-à-vis the Bureau of the Municipal Urban Administration for obtaining that permit. Finally, in relation to imparting the technical training course to give Ms. Ramírez Jacinto the basic knowledge for developing her microenterprise, she has been notified of them on two occasions, but has not attended; the course given March 28, 2006, called “Managing my Business,” is the only one she has attended.

609.          The petitioners reported that with respect to school support, the official calendar of the Secretariat of Public Education indicated August 18 as the beginning of courses in the 2008-2009 school year, and that the State has not carried out this point of the agreement. While they indicated that the State delivered what it said it would, the school support was not provided within the time frame committed to by the state government, and moreover the mechanism to be used in coming years to assure timely delivery of that support was not spelled out. With respect to the legislative reform, the petitioners reported that the initiative to amend and add several articles to the Criminal Code, the Code of Criminal Procedure, and the Law on Health of the State was introduced in 2006. Nonetheless, the State has not reported on the actions for giving impetus to that initiative through a “lobbying strategy” as established in the Agreement. They also indicated that the submission of a letter is not a significant action of a strategy that evinces the disposition to push the reform. On the training, the petitioners agree that GIRE has not made contact with the justice or health authorities. They argued that this is due to an environment that is hardly propitious for carrying out trainings by the Executive. As regards the publication of the circular issued by the state Secretariat of Health in the official gazette of the State, which establishes the terms of the delivery of medical services related to the legal interruption of a pregnancy, the petitioners noted that it must be published as an executive regulatory provision in order for it to have general effects, according to the case-law of the Supreme Court of Justice.

610.          With respect to the productive project, the petitioners reported that on several occasions support has been sought from the state government to seek the land use permit for Paulina del Carmen Ramírez Jacinto’s productive project. They indicated that this permit has been sought for two years, yet it has not been possible for it to be issued. In addition, they reported that Paulina del Carmen Ramírez Jacinto was required by the Bureau of Civil Protection to install smoke detectors and fire extinguishers in the grocery store she owns, and that this installation and the respective fine were covered by Paulina Ramírez Jacinto. For this reason they reported that it makes no sense for her to attend a training session.

611.          In view of the foregoing, the Commission concludes that the State has carried out the points agreed upon in part.

Case 11.381, Report No. 100/01, Milton García Fajardo (Nicaragua)

612.          In Report No. 100/01 of October 11 2001, the Commission concluded that the Nicaraguan State: (a) violated, to the detriment of Milton García Fajardo, Cristóbal Ruiz Lazo, Ramón Roa Parajón, Leonel Arguello Luna, César Chavarría Vargas, Francisco Obregón García, Aníbal Reyes Pérez, Mario Sánchez Paz, Frank Cortés, Arnoldo José Cardoza, Leonardo Solis, René Varela, and Orlando Vilchez Florez, the right to humane treatment, contained in Article 5 of the American Convention on Human Rights; and (b) violated, to the detriment of Milton García Fajardo and the 141 workers who are included in this complaint, the rights to judicial guarantees and judicial protection, and economic, social, and cultural rights, protected by Articles 8, 25, and 26 of that international instrument, in relation to the general obligation to respect and ensure the rights, provided for in Article 1(1) of the same Convention.

613.          According to the complaint, on May 26, 1993, the customs workers went on strike after having sought unsuccessfully to negotiate, through the Ministry of Labor, a set of petitions that demanded, among other things, the nominal reclassification of the particular and common positions at the General Bureau of Customs, labor stability, and 20 percent indexing of salaries in keeping with the devaluation. The Ministry of Labor resolved, on May 27, 1993, to declare the strike illegal, arguing that Article 227 of the Labor Code did not permit the exercise of that right for public service workers or workers whose activity is in the collective interest. The petitioners also alleged that the Police made disproportionate use of force during the strike held by the workers on June 9 and 10, 1993.

614.          The Commission made the following recommendations to the State:

1. To conduct a complete, impartial, and effective investigation to establish the criminal responsibility of the persons who inflicted the injuries caused to the detriment of Milton García Fajardo, Cristóbal Ruiz Lazo, Ramón Roa Parajón, Leonel Arguello Luna, César Chavarría Vargas, Francisco Obregón García, Aníbal Reyes Pérez, Mario Sánchez Paz, Frank Cortés, Arnoldo José Cardoza, Leonardo Solis, René Varela and Orlando Vilchez Florez, and to punish those responsible in accordance with Nicaraguan law.

2. To adopt the measures necessary to enable the 142 customs workers who lodged this petition to receive adequate and timely compensation for the violations of their human rights established herein.

615.          On November 3, 2008, the Commission asked the State and the petitioners to submit information on the status of implementation of the recommendations.

616.          The State reported that it has reached an agreement with 113 petitioners, represented by Messrs. Antonio Espinoza González, Wilfredo Pizarro Castillo, Evelio Mendoza Somarriba, Marcio Ediberto Betanco Vásquez, and Héctor Sánchez Baldotano, who showed their representation through a public instrument.  In that agreement, the State undertook to pay the sum of 25,000 córdobas to each of the 144 victims of this case within five years. It also undertook to recognize the contributions not enjoyed and paid into the INSS corresponding to the 14 years not worked, and to make its best efforts to gradually reincorporate former customs workers to public sector employment. The State provided information on the payment of the first two installments to 132 and 133 victims, respectively, as well as the reinstatement of 43 persons to the public service, providing the list of names. The State reports that it has not been able to reach agreement with six petitioners since the proposed compensation presented by the six petitioners is beyond what is possible in view of the economic and social reality of the State.

617.          The State reported that in relation to the investigation into the facts, any claims have prescribed, thus it is impossible to undertake the corresponding investigations.

618.          For their part, the petitioners reported that the State, has yet to investigate or sanction the persons responsible for the injuries caused the victims. As for reparations, the petitioners noted that they were not included in the signing of the agreement on June 7, 2007, and they indicated that the State has not explained what criteria it used to set the amount of compensation, even though it agreed to do so at a working meeting held before the IACHR. They reported that independent of the foregoing, the State has not met the commitments it acquired there, since it has only paid the sum of 50,000 córdobas, has not recognized the social security contributions, and has not reinstated most of the workers to jobs in the public sector.

619.          The IACHR is satisfied to receive the information provided by the State, which reflects progress in implementing the recommendations from Report 100/01. Nonetheless, the Commission urges the State to present the parameters on which it bases the compensation figures in that agreement. As regards the investigation to determine the criminal liability of all the perpetrators of the lesions caused to the detriment of the above-noted victims, the IACHR reminds the State of its duty to investigate and to punish those who turn out to be responsible for human rights violations.

620.          Based on the foregoing, the IACHR concludes that the State has partially carried out its recommendations. 

Case 11.506, Report No. 77/02, Waldemar Gerónimo Pinheiro and José Víctor Dos Santos (Paraguay)

621.          In Report No. 77/02 of December 27, 2002, the Commission concluded that the Paraguayan State: (a) had violated, with respect to Waldemar Gerónimo Pinheiro and José Víctor Dos Santos, the rights to personal liberty and judicial guarantees, enshrined at Articles 7 and 8 of the American Convention, with respect to the facts subsequent to August 24, 1989; and (b) had violated, with respect to Waldemar Gerónimo Pinheiro and José Víctor Dos Santos, the rights of protection from arbitrary arrest and to due process established by Articles XXV and XXVI of the American Declaration on the Rights and Duties of Man for the events that occurred prior to August 24, 1989.

622.          The IACHR made the following recommendations to the State:

1. Make full reparation to Mr. Waldemar Gerónimo Pinheiro, which includes appropriate compensation.

2. Make full reparation to Mr. José Víctor Dos Santos, which includes appropriate compensation.

3. Such reparation should be commensurate with the harm done, which implies that compensation should be greater for Mr. José Víctor Dos Santos, given that he spent eight years in prison, with no legal justification for his detention.

4. Order an investigation to determine who was responsible for the violations ascertained by the Commission and punish them.

5. Take the necessary steps to prevent such violations from recurring.

623.          The parties did not submit information with respect to implementation of the IACHR’s recommendations. Accordingly, the Commission concludes that the recommendations have yet to be carried out.

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