REPORT N^o 38/00
CASE 11.743
RUDOLPH BAPTISTE
GRENADA
April 13, 2000

            I.            SUMMARY 

1.                 This report concerns a capital punishment petition that was presented by letter dated April 23, 1997, to the Inter-American Commission on Human Rights (hereinafter “the Commission”) on behalf of Mr. Rudolph Baptiste, by Saul Lehrfreund Esq., Solicitor of Messrs. Simon Muirhead & Burton, a firm of Solicitors in London, United Kingdom (hereinafter “the petitioners”) against the State of Grenada (hereinafter "the State” or “Grenada”) for alleged violations of Mr. Baptiste’s rights under the American Convention on Human Rights (hereinafter “the Convention") and the American Declaration of the Rights and Duties of Man (hereinafter “the Declaration”). 

2.                 The petitioners claim that on July 11, 1995, Rudolph Baptiste was convicted of the murder of his mother, Ms. Annie Baptiste-Lambert, (hereinafter “the deceased” or “Mr. Baptiste’s mother”) pursuant to Section 234 of the Criminal Code of Grenada.[1]  The petitioners maintain that the murder of Mr. Baptiste’s mother occurred on November 19, 1993, following Mr. Baptiste’s intervention to prevent his mother from further “beating” his thirteen year old younger brother, Deverill, with a belt.  Mr. Baptiste was sentenced to death by hanging, and is awaiting execution at Richmond Hill Prison, in Grenada. The petitioners claim that Mr. Baptiste appealed his conviction to the Court of Appeal in Grenada.  His appeal was dismissed by the Court on November 27, 1995.  

3.                 The petitioners argue that the State has violated Mr. Baptiste’s rights under Articles 4(1), 4(6), 5(1), 5(2), 5(6), 8, and 24 of the Convention and Articles I, II, XVIII, and XXVI of the Declaration, and request that the Commission recommend to the State that it quash Mr. Baptiste’s death sentence and release him from detention.  

4.                 The petitioners contend that if Mr. Baptiste is executed while this petition is pending determination by the Commission, it would result in irreparable damage to him.  The petitioners therefore request that the Commission issue Precautionary Measures pursuant to Article 29(2) of its Regulations against the State and ask the State to suspend Mr. Baptiste’s execution pending the determination of his petition by the Commission. 

II.          PROCEEDINGS BEFORE THE COMMISSION 

5.                 Upon receipt of the petition on April 23, 1997, and the parties’ subsequent submissions, the Commission has complied with the procedural requirements of the American Convention and its Regulations.  It has studied, examined and considered all information submitted by the parties, and has forwarded the pertinent parts of each party’s submissions to the other party.  

6.                 On April 29, 1997, the Commission opened a case in this matter and forwarded the pertinent parts of the petition to the State pursuant to Article 34 of its Regulations. The Commission requested that the State provide it with information within 90 days that would permit the Commission to process and study the petition, including determining whether domestic remedies had been exhausted. The Commission also requested that the State stay Mr. Baptiste’s execution pending an investigation by it of the alleged facts. 

7.                 By letter dated November 3, 1997, the petitioners requested that the Commission conduct an on-site visit to Grenada where Mr. Baptiste is detained. They also requested an oral hearing before the Commission. 

8.                 By communication dated January 23, 1998, the Commission informed the petitioners and the State that a hearing in the case had been scheduled for Friday, February 27, 1998 at 10:00 a.m., during the Commission’s 98^th period of sessions. 

9.                 By letter dated February 10, 1998, the Commission reiterated its request to the State that it provide the Commission within 30 days with information deemed appropriate to determine the facts alleged in the case. 

10.             On February 25, 1998, the Commission forwarded to the State a copy of the petitioners’ arguments on admissibility and merits, which the petitioners intended to present at the hearing on February 27, 1998. 

11.             On February 27, 1998, a hearing was held before the Commission. The State did not attend or participate in the hearing. The petitioners were represented by Barristers of the Bar of England and Wales, namely, Nicholas Blake Barrister, Q.C., and Keir Starmer Esq., and Saul Lehrfreund Esq., an English Solicitor, who presented oral arguments on the admissibility and merits of this petition.  In their presentation, the petitioners reiterated their position on the claims and arguments raised before the Commission, which are discussed in the petitioners’ position in Chapter III of this Report. 

12.             On September 1, 1998, the Commission wrote to the State and again reiterated its request for information as contained in its letters of April 29, 1997, February 10, 1998, and February 25, 1998, asking for a response within 30 days. Again on August 18, 1999, the Commission further reiterated its request to the State for information on the claims raised in the petition, asking for a response within 30 days. 

13.             On September 20, 1999, the Commission wrote to both the State and the petitioners and informed them that it placed itself at their disposal with a view to reaching a friendly settlement of the case pursuant to Article 48(1)(f) of the American Convention on the basis of respect for the human rights recognized therein. The Commission also indicated that if the State and the petitioners were interested in accepting the Commission’s offer, they should provide it with a response within 7 days of receipt of its communication, otherwise the Commission would continue with the consideration of the case.  

14.             On September 24, 1999, in response to the Commission’s offer to assist in a friendly settlement between the parties, the petitioners requested that the Commission  convey to the State that “commutation of Mr. Baptiste’s death sentence is the only appropriate way of reaching a friendly settlement in the case, because of the reasons set forth in the petition which constitutes violations of Articles 4, 5, 8, and 24 of the American Convention, and on the basis of respect for the human rights recognized in the American Convention.” The pertinent parts of this communication were forwarded to the State on September 27, 1999.  

15.             To date, the State has not responded to any of the Commission’s communications, nor has it presented any information to the Commission pertaining to the admissibility and merits of the petition, or the Commission’s offer to facilitate a friendly settlement between the parties.

III.            POSITIONS OF THE PARTIES 

A.            Position of the petitioners 

1.            Background of the case 

16.             According to the petitioners, Mr. Baptiste is twenty two years old and is the eldest son of the deceased, Ms. Annie Baptiste-Lambert. Mr. Baptiste lived with his seventeen year old maternal brother, Anderson, his girlfriend, Bernadette Julien, and their two children, in another house in the same yard where his mother lived. 

17.             The petitioners state that on the morning of November 19, 1993, the deceased was in her house “beating” her thirteen year old son and Mr. Baptiste's younger brother, Deverill, with a belt. Mr. Baptiste decided to intervene to stop the abuse by “wrestling” or “fighting” with his mother, and took the belt from her. The deceased continued  to “quarrel” for most of that morning, and told Mr. Baptiste that she was going to report him to the police.  

18.             As she was leaving the yard at approximately 12:30 p.m. on the same day, the deceased came upon Mr. Baptiste sitting on a stone outside of his house. The deceased approached Mr. Baptiste, slapped him, and said: "Today, today, I must kill you." There were some shoe laces on a clothes line tied together in a “caboya or noose” in the yard, which had been present for several days prior to the incident. Mr. Baptiste pulled the shoe laces from the line, opened the noose, and tried to pass it over his mother’s shoulders to tie both of her hands. While doing so, however, his mother jerked away, causing the laces to draw around her neck and strangle her. Mr. Baptiste claims that he did not intend to do anything more than tie his mother's hands to prevent her from hitting him again. 

19.             Mrs. Roma Findlay, a social worker who had visited the Baptiste family several times in the course of her social work, testified at trial. Based upon her experience, Mrs. Findlay indicated that Mr. Baptiste was the only one of the deceased’s grown children who took an interest in his younger sister, nine-year-old Samantha, who had been living in a children’s home. Mrs. Findlay also testified that Mr. Baptiste was a good brother to Samantha, that he was of “good character,” and that he was not a “violent type of person.”

2.            Position of the petitioners on admissibility 

20.             The petitioners argue that Mr. Baptiste has exhausted the domestic remedies in Grenada because he appealed his July 11, 1995 conviction for capital murder to the Court of Appeal in Grenada, and the Court dismissed his appeal on November 27, 1995. The petitioners also claim that Mr. Baptiste decided not to petition the Judicial Committee of the Privy Council for Special Leave to Appeal, based upon written advice from Tim Owen Esq., an English Barrister that he did not have good grounds upon which to petition the Privy Council.[2] In addition, the petitioners indicate that the Privy Council has no jurisdiction to vary the sentence of death and substitute a lesser sentence, and that there are no domestic remedies available to Mr. Baptiste in respect of his sentence. 

21.             The petitioners also contend that failure of the State Party to provide legal aid for Constitutional Motions denies Mr. Baptiste access to a court and hence to an effective remedy for violations of the American Convention. The petitioners indicate that Section 16(1) of Grenada’s Constitution[3] gives an individual the right to apply to the High Court for redress in respect of alleged Constitutional violations by way of a Constitutional Motion. The petitioners argue, however, that Mr. Baptiste is unable to pursue a Constitutional Motion in the High Court of Grenada because the practical barriers render such a remedy illusory. In particular, the petitioners argue that the Constitution is a complex legal document, and therefore a Constitutional Motion clearly requires expert legal representation to establish a reasonable prospect of success. They also submit that Mr. Baptiste lacks private funding, and that legal aid is unavailable to pursue a Constitutional Motion. Further, the petitioners indicate that there is a dearth of Grenadian lawyers who are prepared to represent Mr. Baptiste without payment. Consequently, according to the petitioners, a Constitutional Motion is not an available remedy for Mr. Baptiste. 

22.             In addition, the petitioners argue that the absence of Legal Aid for an impecunious individual to pursue a Constitutional Motion is sufficient failure on the part of the State to satisfy the Commission that the remedy is not available. In support of their position, the petitioners cite the decisions of the United Nations Human Rights Committee (HRC) in Champagnie, Palmer & Chisolm v. Jamaica, in which the HRC stated as follows: 

With respect  to the authors’ possibility of filing a Constitutional Motion, the Committee considers that, in the absence of  Legal Aid, a Constitutional Motion does not constitute an available remedy in the case.  In light of the above, the Committee finds that it is not precluded by Article 5(2)(b) of the Optional Protocol from considering the communication.[4]

          3.            Position of the petitioners on the merits 

a.         Articles 4, 5, 8 and 24 of the Convention - The mandatory nature of the death penalty and the prerogative of mercy  

i.            The mandatory death penalty 

23.             The petitioners claim that by imposing a mandatory death sentence on Mr. Baptiste upon his conviction for murder, the State violated his rights under Articles 4(1), 4(6), 5(1), 5(2), 5(6), 8 and 24 of the Convention, as well as his rights under Articles I, II, XVIII, and XXVI, of the American Declaration. 

24.             The petitioners referred to the legislative history of the death penalty in Grenada. The petitioners state that until 1974, Grenada was a British Colony whose penal law consisted of the common law and local penal codes as developed in England and Wales, and that pursuant to the (British) Offences Against the Person Act 1861, the penalty for murder was death. The petitioners claim that in the United Kingdom, Section 7 of the Homicide Act 1957 restricted the death penalty in the United Kingdom to the offence of capital murder pursuant to Section 5, or murder committed on more than one occasion under Section 6. The petitioners also indicate that Section 5 of the Homicide Act classified a capital murder as murder by shooting or explosion, murder done in the course or furtherance of theft, murder done for the purpose of resisting or preventing arrest or escaping from custody, and murders of police and prison officers acting in the execution of their duties. 

25.             In addition, the petitioners maintain that Section 2 of the Homicide Act contained provisions for reducing the offence of murder to one of manslaughter, when the murder was committed by a person, who at the time of the commission of crime was suffering from such abnormality of mind so as to substantially impair his mental responsibility for the acts and admission in doing, or being a party to the killing (diminished responsibility).  The petitioners indicate that Section 3 of the Homicide Act 1957 extended the common law defense of provocation whereby murder may be reduced to manslaughter where there is provocation by things done or said causing a person to loose his self control. In addition, the petitioners report that the Homicide Act 1957 was not applied in Grenada before Independence and that no provision has been made for non-capital murder or the defense of diminished responsibility. 

26.             According to the petitioners, Grenada became an independent State on February 7, 1974, when it adopted its Constitution. They also indicate that Chapter I of Grenada’s Constitution provides for the protection of fundamental rights and freedoms of the individual. Article 5 of Grenada’s Constitution in particular provides: 

(1)               No person shall be subjected to torture or to inhuman or degrading punishment or other treatment.

(2)               Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this Article to the extent that the law in question authorizes the infliction of any description of punishment that was lawful in Grenada immediately before the coming into operation of this Constitution. 

27.             In light of the terms of Article 5 of the Constitution, the petitioners indicate that they accept that the sentence of death for murder does not violate the Constitution of Grenada, and that Article 5(2) of Grenada’s Constitution precludes the Courts of Grenada or the Privy Council from interpreting the right to freedom from inhuman or degrading punishment under the Constitution as prohibiting the administration of the death penalty in every case upon a conviction for murder.[5]  At the same time, the petitioners argue that imposing a mandatory death sentence on Mr. Baptiste, without providing him with an opportunity to present evidence of mitigating circumstances relating to him or his offense, violates Mr. Baptiste's rights under Articles 4, 5, 8 and 24 of the Convention.  

28.             In support of their position, the petitioners refer to the practice in other states. They argue, for example, that in the case of Woodson v. North Carolina[6] the United States Supreme Court held that the automatic imposition of the death sentence on all those convicted of a specific offence is inconsistent with “the evolving standards of decency that are the hallmark of a maturing society.”  The petitioners argue that the Supreme Court made it plain that the application of the mandatory death sentence imposed in all cases of murder without objective criteria for its application in particular cases after a fair hearing was unconstitutional.  In addition, the petitioners indicate that the Supreme Court held further that: 

[i]n capital cases the fundamental respect for humanity underlying the eight amendment … requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.[7]

29.             In addition, the petitioners contend that the South African Constitutional Court has gone further and followed the Hungarian Constitutional Court in declaring the death penalty to be unconstitutional per se in Decision 23/1990(X.31). Conversely, in the case of Bachan Singh v. The State of  the Punjab, the Supreme Court of India determined that the death penalty is not unconstitutional per se,[8] in part because there was a judicial discretion as to whether it should be imposed. Based upon these domestic authorities, the petitioners argue that states retaining the death penalty must distinguish between capital and non-capital murder, and must provide a proper sentencing procedure for considering whether the death penalty should be imposed in capital cases.   

30.             In this connection, the petitioners make reference to a 1992 amendment to Jamaica's Offences Against the Person Act 1861, which distinguishes capital from non- capital murder. They contend that if Mr. Baptiste was tried in the United Kingdom or Jamaica, he would have been tried on a charge of “non capital murder,” as his offence was not a murder of such special or heinous character as to merit the death penalty. Finally, the petitioners claim that the law of Belize has introduced judicial discretion in the application of the death penalty.  

31.             The petitioners argue that the American Convention is  a living, breathing and developing instrument reflecting contemporary standards of morality justice and decency and that it shares this quality with other international instruments such as the International Covenant on Civil and Political Rights (hereinafter the "ICCPR") and the European Convention For the Protection of Human Rights and Fundamental Freedoms (hereinafter the "European Convention").[9] The petitioners accept that Article 4 of the American Convention does not render the death penalty per se unlawful. They add, however, that according to commentators,[10] Article 4 of the Convention is more restrictive of the circumstances under which the death penalty can be imposed than the comparable provisions of the ICCPR and the European Convention.  

32.             According to the petitioners, Article 4 of the Convention is expressly abolitionist in its direction and aspiration, and prescribes conditions for the implementation of the death penalty. For example, the death penalty cannot be applied to people below 18 years or over 70 years or for new offences. The petitioners contend that two conditions in particular render the imposition of the mandatory death penalty in Mr. Baptiste's case a violation of Article 4. First, it cannot be considered to have reserved the death penalty only for the "most serious offences," as required under Article 4(2). In addition, it fails to distinguish between different cases of murder or ensure like cases are treated alike, and consequently it is arbitrary and can give rise to unjust discrimination.  

33.             More particularly, the petitioners assert that the drafters of the American Convention, giving due consideration to the abolitionist tendencies of the Hispanic states and the restrictionist tendencies of the United States, intended the term “only for the most serious crimes” under Article 4(2) to go beyond mere legal label and to require some categorization or opportunity to make representations as to whether a particular allegation of murder merited death. Moreover, the petitioners contend that the way in which the death penalty is administered in Grenada renders the deprivation of life arbitrary and contrary to Article 4(1) of the American Convention, and add that the fact that certain sentences of death are lawful under Article 4(2) of the American Convention does not mean that those sentences cannot be considered arbitrary under Article 4(1), or cruel, inhuman or degrading contrary to Article 5 of the American Convention. 

34.             The petitioners argue that similar conclusions can be reached with reference to Article 5 of the American Convention. According to the petitioners, it has long been recognized by judicial authorities that the death penalty has features that prompt the description cruel and inhuman, but that this does not make it unlawfully carried out in conformity with a state’s international obligations.[11] At the same time, the petitioners argue that the death penalty can be rendered illegal because of the manner in which it is imposed. In this regard, the petitioners submit that certain factors pertaining to the manner in which Mr. Baptiste's death sentence has been imposed can be considered to violate Article 5 of the Convention, and to render his execution unlawful under Article 4 of the Convention. These factors include the lapse of time since Mr. Baptiste's sentence was imposed, the conditions of his detention on death row, and the cruelty of sentencing people to death, when there has been a moratorium on application of the death sentence in Grenada for 20 years.  

35.             In addition, the petitioners argue that the mandatory death sentence imposed on Mr. Baptiste violates Articles 8 and 24 of the Convention, on the basis that Grenada’s Constitution does not permit Mr. Baptiste to allege that his execution is unconstitutional as being inhuman or degrading or cruel and unusual, and does not afford Mr. Baptiste a right to a hearing or a trial on the question of whether the death penalty should be either imposed or carried out. The petitioners contend further that the State has violated Mr. Baptiste’s right to equal protection of the law by imposing a mandatory death sentence without any judicial proceedings to establish whether the death penalty should be imposed or carried out in the circumstances of his case. 

36.             The petitioners assert that the mandatory death sentence is an arbitrary and disproportionate punishment unless there is allowance for individual mitigation, and that even a short custodial sentence cannot be imposed without affording such an opportunity for mitigation to be presented before the judicial authority imposing sentence. According to the petitioners, fair and objective criteria are necessary in determining the question of whether a convicted murderer should actually be executed, and that if all murderers are executed, the death penalty would be cruel because it did not allow for any discretion.  The petitioners also argue that a law which is mandatory at the sentencing stage and involves unfettered personal discretion at the commutation stage infringes both principles identified by the United States Supreme Court, and further violates the principle of equality before the law. The petitioners argue that in Grenada, not every person who is sentenced to death is executed and that the Prerogative of Mercy operates to commute a number of sentences.   

37.             Finally, the petitioners suggest that the State should consider converting the moratorium on executions that has existed in Grenada since 1978 into legislative abolition. In this regard, the petitioners indicate that they accept that the State has not abolished the death penalty in its laws and has not applied the death penalty since 1978.  The petitioners argue that for the past twenty years people have been sentenced to death for murder and suffer all the terrors of expectation of a hanging that confinement to the death row cells in Richmond Prison brings, without any real intention on the behalf of the authorities to carry this punishment into effect. The petitioners contend that they respect the humanitarian tendencies of the Government of Grenada that led to the moratorium in the first place, but suggest that the de facto moratorium should be turned into legislative abolition. The petitioners assert that if the State abolishes the death penalty through legislation, Mr. Baptiste's death sentence should be speedily commuted to life imprisonment, so that the agony of suspense relating to his possible execution does not hang over him for years. 

38.             With respect to the particular circumstances of Mr. Baptiste's crime, the petitioners indicate that his state of mind at the time of the offense may have been relevant in determining his punishment. In this connection, the petitioners claim that although Grenada’s law has no provision for the defense of diminished responsibility, Tim Owen, the Barrister from whom Mr. Baptiste sought advice in respect of a possible appeal to the Judicial Committee of the Privy Council, expressed the view that sons rarely kill their mothers. Consequently, Mr. Owen indicated that he would have expected some medical evidence to have been sought and used at trial, if it provided any kind of support for the suggestion that in a situation of stress and upset, Mr. Baptiste snapped and inflicted fatal injuries on his mother.

ii.         The prerogative of mercy 

39.             The petitioners argue that insofar as the rigors of the mandatory death penalty are mitigated by the power of pardon and commutation exercised by the Advisory Committee on the Prerogative of Mercy, as prescribed under Articles 72, 73 and 74[12] of the Constitution of Grenada, there are no criteria for the exercise of such discretion, and no information as to whether such discretion is exercised on an accurate account of the admissible evidence as to the facts relating to the circumstances of the offence. They also claim that there is no right on the part of an offender to make either written or oral comments on the question of pardon, to see or comment on the report of the trial Judge which the Advisory Committee must consider under Article 74(1) of the Grenadian Constitution, or to comment on any reasons identified by the trial judge or others as to whether the sentence of death should be carried out.  

40.             The petitioners indicate in this regard that in the case of Reckley v. Minister of Public Safety Nº 2,[13] the Privy Council specifically held that a condemned man has no right to make representations or attend a hearing before the Advisory Committee on the Prerogative of Mercy established pursuant to Articles 73 and 74 of Grenada’s Constitution. Rather, the Privy Council held that the power of pardon is personal to the responsible Minister and is not subject to judicial review, stating as follows: 

The actual exercise by this designated Minister of his discretion in a death penalty case is different.  To concern with a regime, automatically applicable under the designated Minister, having consulted with the Advisory Committee, decides, in the exercise of his own personal discretion, whether to advise the Governor General that the law should or should not take its course.  Of its very nature, the Minister’s discretion, if exercised in favor of the condemned man, will involve a departure from the law.  Such a decision is taken as an act of mercy or as it used to be said as an act of grace.[14] 

41.             The petitioners also assert that the violation of Mr. Baptiste’s right to equality before the law by reason of the mandatory death penalty is further aggravated by the fact that he has no right to be heard before the Advisory Committee on the Prerogative of Mercy, which itself is alleged to constitute a violation of Article 4(6) of the American Convention.  In this regard, the petitioners argue that it may well be that poorer citizens of Grenada are less likely to receive commutation than wealthier citizens or other forms of discriminatory treatment which exist in the present arrangements, although they are unaware of any empirical studies on this issue as it pertains to Grenada.  The petitioners referred to decisions of the United States Supreme Court and the South African Constitutional Court, in which a tendency of discrimination in the application of the Prerogative of Mercy has been identified. Moreover, the petitioners contend that it must be for the party seeking to deprive Mr. Baptiste of his life to establish the absence of inequality and discrimination in the operation of its penal law.

b.         Article 5 - Conditions of detention  

42.             The petitioners claim that the State has violated Mr. Baptiste’s rights under Articles 5(1) and 5(2) of the Convention, because of his conditions of detention, which they describe as follows:  

He is locked in his cell measuring 9’x6’ on his own for 23 hours a day; he is provided with a bed and mattress, but there is no other furniture whatsoever in his cell; the cell has no windows and no natural lighting, and no ventilation; the only lighting in his cell is provided by a single naked bulb situated in the corridor in front of his cell; he is deprived of adequate sanitation and therefore has to use a bucket; he is allowed one opportunity a day to slop out; he is allowed one hour exercise per day which is taken in a small exercise yard; food provided is inadequate and he is made to eat alone; he is allowed one visitor a month for a duration of 15 minutes and he is allowed to write one letter a month; all prisoners on death row at Richmond Hill Prison are not permitted access to prison services; he is not allowed to use the prison library and he is also denied access to the Chaplan and religious services; there is inadequate medical care and no psychiatric care is provided to prisoners under sentence of death; and there is no adequate complaints mechanism for dealing with prisoners’ complaints.

43.             According to the petitioners, since his incarceration in Richmond Hill Prison, Mr. Baptiste has been detained in conditions that have been condemned by international human rights organizations as being in violation of internationally recognized standards.  The petitioners argue that non-governmental organizations have concluded that the State is in breach of a number of international instruments designed to give those detained a minimum level of protection, because of inadequate accommodations, sanitation, diet and health care. In support of their allegations, the petitioners submitted a notarized Affidavit from Mr. Baptiste dated April 11^th 1997, in which Mr. Baptiste describes his treatment and conditions of his confinement since his arrest and subsequent conviction for murder on July 11^th, 1995. 

44.             The petitioners have also relied upon information regarding prison conditions in the Caribbean generally. In this connection, the petitioners claim that all death row prisoners in Grenada are confined in Richmond Hill Prison, which was built in the 19^th century. They also claim that Richmond Hill Prison was designed to hold 130 prisoners, but that as of October 1996, the prison had a population of 330 prisoners. Further, the petitioners refer to numerous reports prepared by the non-governmental organization, “Caribbean Rights.”  For example, in its 1990 report "Deprived of their Liberty," Caribbean Rights made the following observations about prison conditions in the Caribbean generally, including Grenada:  

In most of the Caribbean prisons visited, prisoners had to use a bucket in front of others and were locked in with the bucket for many hours, often for 15 or 16 hours a day.  This was the case in the men’s prison in St. Vincent, Grenada, Trinidad and South Camp Rehabilitation Centre and St. Catherine District Prison in Jamaica.[15]

In both St. Vincent and Grenada the men’s prison uniform was a blue top and shorts, decent but not very conducive to dignity.

In Grenada, there were no separate punishment cells.  Prisoners on punishment were put in the special security blocks.  Corporal punishment was not available, but punishment were of two types of restricted diet and loss of remission up to 90 days, though it was reported that it was rare for a prisoner to lose that much remission.  There is no appeal machinery against the imposition of punishment.[16]   

45.             Caribbean Rights' 1990 Report also indicated that in 1990, there were approximately 20 prisoners under sentence of death in Grenada, and described conditions on death row in Grenada as follows: 

The prisoners under sentence of death were kept in special security blocks attended by prison officers wearing a different uniform from the prison officers in the rest of the prison, a green combat-type uniform.  There were three such blocks, each with a corridor down the middle and 8 to 10 cells on each  side of the door.  The cell doors are solid with a rectangular aperture at eye level.  The prisoners in the blocks wore the same clothes as the other prisoners, that is a blue shirt and blue shorts.  Upon the arrival of the visiting party, the prison officers in the special security blocks opened the outer door, salute to the senior officer present and recited a military style statement about the numbers locked up and everything being in order.  Then the officer walked down the row shouting the name of each prisoner as he passed.  The prisoner then stood to attention in the middle of the cell, hands behind his back and replied, “Sir.” … The prisoners in the special security blocks are reported to get one hour of exercise a day if possible, sometimes more.”[17] 

46.             Based in part upon these observations, Caribbean Rights reached several conclusions and made several recommendations in respect of the conditions of detention of condemned prisoners in the Caribbean, including the following: 

The treatment of death row prisoners exacerbates a punishment that is already completely unacceptable.  The exceptional inhumanity of the physical conditions as reported in Guyana and Trinidad and seen in St. Vincent and Grenada, constitute an intolerable imposition of cruelty.  It is understandable that high security must be imposed and some surveillance is necessary.  But keeping death sentenced prisoners, sometimes for years, in conditions equivalent to or worse than those of punishment cells, is intolerable.[18] 

The holding of prisoners sentenced to death in the conditions currently obtaining in the special security blocks in Grenada is inappropriate and should cease forthwith.

That subjecting prisoners under sentence of death to living with the lights on for 24 hours a day should cease forthwith.

That restricting the programme of activities of prisoners awaiting sentence of death to one hour of exercise a day, should cease forthwith. 

That prisoners under sentence of death should be entitled to substantial amounts of visiting time with their families.

47.             Similarly, in a December 1991 Report entitled “Improving Prison Conditions in the Caribbean," Caribbean Rights noted several concerns raised by Vivien Stern, the Secretary General of Penal Reform International, regarding the visitation rights of prisoners and their ability to send and receive letters: 

In Grenada, the official visiting allowance is 15 minutes a month for convicted prisoners.  It is 15 minutes a week for unconvicted prisoners.  Normal civilised contact was impossible. The visit took place through grilles with a gap between the two grilles of about 18 inches, through which the visitor and the prisoner had to communicate.  Probably the best they can do in these circumstances is to shout at each other.  Writing letters is another way of keeping contact.  Here too there were severe restrictions.  In Grenada, prisoners can write and receive one letter a month.  All ingoing and outgoing mail was read by censors, even for the most minor offenders.[19] 

48.             In support of their contention that Mr. Baptiste's conditions of detention violate Article 5(1) and 5(2) of the Convention, the petitioners refer to several decisions of the U.N. Human Rights Committee (hereinafter "HRC"), in which the HRC determined that conditions of detention violated Articles 7[20] and 10(1)[21] of the International Covenant on Civil and Political Rights (ICCPR). These cases include Antonaccio v. Uruguay, [22] in which the HRC held that detention in solitary confinement for three months and denial of medical treatment constituted a violation of the Covenant, and De Voituret v. Uruguay,[23] in which the HRC held that solitary confinement for three months in a cell with almost no natural light violated the applicant’s rights under the Covenant. The petitioners also rely upon the decision Mukong v. Cameroon,[24] in which the HRC suggested that conditions of detention which do not meet the United Nations Standard Minimum Rules for the Treatment of Prisoners violate Articles 7 and 10(1) of the ICCPR, and that minimum standards of humane treatment of prisoners apply regardless of a state's level of development: 

As to the conditions of detention in general, the Committee observes that certain minimum standards regarding the conditions of detention must be observed regardless of the State party’s level of development [ i.e. the UN Standard Minimum Rules for the Treatment of Prisoners]. It should be noted that these are minimum requirements which the Committee consider should always be observed, even if economic or budgetary conditions may make compliance with these obligations difficult.[25] 

49.             The petitioners similarly argue that the European Court's jurisprudence in respect of Article 3[26] of the European Convention supports their contention that Mr. Baptiste’s conditions of detention violate his rights under Article 5 of the American Convention. In particular, the petitioners rely upon the Greek Case,[27] in which the Court found conditions of detention amounting to inhumane treatment to include overcrowding, poor hygiene and sleeping arrangements, and inadequate recreation and contact with the outside world. Likewise, in the Cyprus v. Turkey,[28] the Court found that conditions in which food, water, and medical treatment were withheld from detainees constituted inhuman treatment. The petitioners also argue that these cases recognized that a failure to provide adequate medical care may constitute inhuman treatment, even in the absence of any other ill treatment.

50.             Further, the petitioners argue that the conditions under which Mr. Baptiste is detained at Richmond Hill Prison constitute violations of the United Nations Standard Minimum Rules for the Treatment of Prisoners, namely, Rules 10, 11A, 11B, 12, 13, 15, 19, 22(1), 22(2), 22(3), 24, 25(1), 25(2), 26(1), 26 (2), 35(1), 36(1), 36(2), 36(3), 36(4), 57, 71(2) 72(3) and 77.  

51.             Finally, the petitioners observe that Grenada failed to respond to questionnaires sent to OAS member states in connection with the Commission's efforts in 1995 to establish a working group to conduct studies of prison conditions in the Americas. 

52.             With respect to Article 4 of the Convention, the petitioners argue that Mr. Baptiste’s detention in inhuman and degrading conditions renders unlawful the carrying out of his death sentence, and that to carry out his execution in such circumstances would constitute a violation of his rights under Articles 4 and 5 of the American Convention. In support of their position, the petitioners refer to the case of Pratt and Morgan –v- The Attorney General of Jamaica,[29] in which the Privy Council held that prolonged detention under sentence of death would violate the right under the Constitution of Jamaica not to be subjected to inhuman and degrading treatment. The petitioners argue similarly that the lawfulness of Mr. Baptiste's execution cannot be considered in isolation from the detention which preceded it, and that his conditions of detention should be considered to render his execution unlawful in the same manner as prolonged detention on death row.

c.         Article 8 - Unavailability of legal aid for Constitutional Motions  

53.             The petitioners claim that the State has violated Mr. Baptiste's rights under Article 8 of the Convention, because legal aid is not available to enable him to pursue a Constitutional Motion in the domestic courts in Grenada. The petitioners maintain that Mr. Baptiste is indigent and therefore lacks the private resources to bring a Constitutional Motion to challenge violations of his Constitutional rights. The petitioners also contend that there are a dearth of Grenadian lawyers who are willing to represent Mr. Baptiste on a pro bono basis.  The petitioners therefore claim that the failure of the State to provide Legal Aid for Mr. Baptiste to pursue a Constitutional Motion denies Mr. Baptiste an effective remedy, which includes access to the Courts in fact as well as in law. In support of this contention, the petitioners rely upon the decisions of the European Court of Human Rights in the cases Golder v. UK,[30] and Airey v. Ireland,[31] in which the European Court held that Article 6 of the European Convention[32] imposed positive obligations on the States concerned to provide legal aid in the interests of justice.  

54.             The petitioners argue that a similar interpretation of Article 8 of the American Convention is appropriate. In particular, they argue that Constitutional Motions in the circumstances of Mr. Baptiste's case should be considered criminal proceedings for the purposes of Article 8(2) of the Convention, because they arise from earlier criminal proceedings, and might serve to quash his capital sentence. Consequently, the petitioners argue that Article 8(2) of the Convention compels the State to provide legal aid to Mr. Baptiste to pursue a Constitutional Motion relating to the criminal proceedings against him. The petitioners also argue that the fact that Mr. Baptiste will be executed if his Constitutional challenge fails, also weighs in favor of this interpretation.

B.            The position of the State 

55.             The State has not presented any information or arguments to the Commission on the issues of the admissibility and merits of the petition, despite the Commission’s communications to it dated April 29, 1997, January 23, 1998, February 10, 1998, September 1, 1998, and August 18, 1999.

IV.            ANALYSIS 

A.                 Competence of the Commission 

56.             The Commission has subject matter jurisdiction in this case, as the State deposited its instrument of accession to the American Convention on July 18, 1978,[33] and the petitioners allege that the State has violated Articles 4, 5, 8, and 24 of the Convention. The Commission also has temporal jurisdiction, as the petitioners' complaints pertain to acts or omissions that transpired after the State's accession to the Convention. Finally, the Commission has personal jurisdiction, as the victim is a citizen of Grenada and the petitioners were authorized under Article 44 of the Convention to lodge a petition on behalf of Mr. Baptiste. The Commission is therefore fully competent to examine this petition. 

57.             The petitioners have also alleged the violation of Articles I, II, XVIII and XXVI of the Declaration. In this regard, the Commission notes that once the Convention entered into force for the State of Grenada on July 18, 1978, the Convention, and not the Declaration became the source of legal norms for application by the Commission,[34] insofar as the petition alleges violations of substantially identical rights set forth in both instruments and those claimed violations do not involve a continuing situation.[35] In Mr. Baptiste's case, the rights alleged to have been violated by the State under the Declaration are similarly guaranteed in the Convention. In addition, acts or omissions to which the alleged violations relate occurred after the State manifested its consent to be bound by the Convention. Therefore, the Commission declares the petitioners' claims relating to the Declaration inadmissible, and will only consider the petitioners' claims relating to the Convention.

B.                 Admissibility of the petition 

1.         Exhaustion of domestic remedies 

58.             Article 46(1) of the American Convention provides that: “Admission by the Commission of a petition or communication lodged in accordance with Articles 44 or 45 shall be subject to the following requirements: (a) that remedies under domestic law have been pursued and exhausted in accordance with generally recognized principles of international law. The petitioners argue that Mr. Baptiste exhausted the domestic remedies of Grenada on  November 27, 1995, when the Court of Appeal in Grenada dismissed Mr. Baptiste’s appeal against conviction and sentence. The State has failed to provide any observations with respect to the admissibility or merits of the petitioners' petition. As a consequence, the Commission finds that the State tacitly waived its right to object to the exhaustion of domestic remedies.[36] The Commission therefore does not find the petitioners' case to be inadmissible by reason of Article 46(1)(a) of the Convention.

2.         Timeliness of petition 

59.             In accordance with Article 46(1)(b) of the Convention, a petition must be presented within a period of six months from the date on which the complaining party was notified of the final judgment at the domestic level. Where no such judgment has been issued because it has not been possible to exhaust domestic remedies, Article 46(2) of the Convention provides that the 6-month requirement does not apply. In the present case, the State has failed to provide any observations in respect of the admissibility or merits of the petitioners' petition and has failed to demonstrate to the Commission that the petition has not been timely filed.[37] Accordingly, the Commission does not find the petitioners' case to be inadmissible by reason of Article 46(1)(b) of the American Convention.

3.         Duplication of procedures 

60.             The petitioners have indicated that the subject of Baptiste’s petition has not been submitted for examination under any other procedure of international investigation. The State has failed to provide any observations regarding the admissibility or merits of the petitioners' petition, and has therefore not contested the issue of duplication. The Commission therefore finds that the petitioners' case is not inadmissible under Articles 46(1)(c) or Article 47(d) of the Convention.

4.         Colorable claim 

61.             Articles 47(b) and 47(c) state that the Commission shall consider inadmissible any petition or communication  submitted under Articles 44 and 45 if the petition does not state facts that tend to establish a violation of the rights guaranteed by the Convention, and that the statements of the petitioner or of the State indicate that the petition or communication is manifestly groundless or obviously out of order. The petitioners have alleged that the Sate has violated Mr. Baptiste's rights under Article 4, 5, 8 and 24 of the Convention. In addition, the petitioners have provided factual allegations that tend to establish that the alleged violations may be well-founded. The Commission therefore concludes, without prejudging the merits of the case, that the petitioners' case is not barred from consideration under Articles 47(b) or 47(c) of the Convention.

5.         Conclusions on admissibility  

62.             As noted previously, the State has not replied to the Commission’s communications to it of April 29, 1997, January 23, 1998, February 10, 1998, September 1, 1998, and August 18, 1999, to provide the Commission with information that the State deemed relevant pertaining to the exhaustion of domestic remedies and the claims raised in the petition, nor has the State responded to the Commission's communications in respect of the possibility of a friendly settlement in the case. As a consequence, in determining the admissibility of this case, the Commission has presumed the facts as reported in the petition to be true, provided that the evidence does not lead to a different conclusion, in accordance with Article 42 of the Commission's Regulations.  

63.             In accordance with the foregoing analysis of the requirements of Articles 46 and 47 of the Convention and the applicable provisions of the Commission's Regulations, the Commission decides to declare admissible the claims relating to the Convention presented on behalf of Mr. Baptiste.

C.                The merits of the petition 

1.  Standard of review  

64.             Before addressing the merits of this case, the Commission deems it advisable to articulate its standard of review in capital punishment cases. In this regard, the Commission is of the view that it must apply a heightened level of scrutiny in such cases. The right to life is widely-recognized as the supreme right of the human being, and the conditio sine qua non to the enjoyment of all other rights.[38] The Commission therefore considers that it has an enhanced obligation to ensure that any deprivation of life perpetrated by a State Party through the death penalty complies strictly with the provisions of the Convention, including in particular the right to life provisions of Article 4, the guarantees of humane treatment under Article 5, and the due process and judicial protections guaranteed under Articles 8 and 25 of the Convention. This “heightened scrutiny” test is consistent with the restrictive approach to the death penalty provisions of human rights treaties advocated by other international authorities.[39] In particular, the Inter-American Court has concluded that the American Convention has adopted an approach in respect of the death penalty that is “incremental” in character, whereby, “without going so far as to abolish the death penalty, the Convention imposes restrictions designed to delimit strictly its application and scope, in order to reduce the application of the penalty to bring about its gradual disappearance.”[40] 

65.             The Commission also notes that the heightened scrutiny test is not precluded by the fourth instance formula adopted by the Commission. Pursuant to the “fourth instance formula,” the Commission in principle will not review the judgments issued by the domestic courts acting within their competence and with due judicial guarantees.[41] The fourth instance formula does not, however, preclude the Commission from considering a case where the petitioner’s allegations entail a possible violation of any of the rights set forth in the American Convention.  In the case of Clifton Wright, for example, a Jamaican citizen who alleged that a judicial error resulted in a death sentence against him, the Commission concluded that the conviction and sentence were undermined by the record in the case, but that the appeals process in Jamaica did not permit for a correction of the situation. Consequently, the Commission found that Jamaica had violated the petitioner’s right to judicial protection under Article 25 of the Convention, and recommended that the Government of Jamaica order an investigation of the matter and afford Mr. Wright a judicial remedy to have the inconsistency corrected. Because Mr. Wright had been denied effective domestic judicial protection, and was the victim of a discrete human rights violation under the American Convention, the fourth instance formula did not apply in his case.[42] 

66.             The Commission will therefore review Mr. Baptiste’s allegations pertaining to the imposition of capital punishment with a heightened level of scrutiny, to ensure that the right to life as prescribed under the American Convention is properly respected. In addition, the fourth instance formula will not preclude the Commission from adjudicating Mr. Baptiste’s rights insofar as those claims disclose possible violations of the Convention.

2.         Alleged violations of the American Convention 

67.             As detailed previously, the petitioners allege: (i) violations of Articles 4, 5, 8, and 24 of the Convention, relating to the mandatory nature of the death penalty and the process for granting amnesty, pardon or commutation of sentence in Grenada; (ii) violations of Article 5 of the Convention pertaining to Mr. Baptiste’s conditions of detention; and (iii) violations of Article 8 of the Convention, relating to the unavailability of legal aid for Constitutional Motions in Grenada. 

68.             As noted previously, the State has not replied to the Commission’s communications to it of April 29, 1997, January 23, 1998, February 10, 1998, September 1, 1998, and August 18, 1999, to provide the Commission with information that the State deemed relevant pertaining to the exhaustion of domestic remedies and the claims raised in the petition, nor has the State responded to the Commission's communications regarding the possibility of a friendly settlement in the case. As a consequence, in determining the merits of the petitioners' allegations, the Commission will presume the facts as reported in the petition to be true, provided that the evidence does not lead to a different conclusion, in accordance with Article 42 of the Commission's Regulations.

a.            Articles 4, 5, 8 and 24 - The mandatory death penalty 

i.          Mr. Baptiste was sentenced to a mandatory death penalty 

69.             Mr. Baptiste was convicted of murder pursuant to Section 234 of the Criminal Code of Grenada, which provides that "[w]hoever commits murder shall be liable to suffer death and sentenced to death."[43] The crime of murder in Grenada can therefore be regarded as subject to a “mandatory death penalty,” namely a death sentence that the law compels  the sentencing authority to impose based solely upon the category of crime for which the defendant is found responsible. Once a defendant is found guilty of the crime of murder, the death penalty must be imposed. Accordingly, mitigating circumstances cannot be taken into account by a court in imposing the death sentence.  

70.             As indicated in Part III of this Report, Mr. Baptiste has alleged that because he was sentenced to a mandatory death penalty for the crime of murder, the State violated  his rights pursuant to Articles 4(1), 4(2), 4(6), 5(1), 5(2), 8 and 24 of the American Convention. Mr. Baptiste has  also argued that the process for granting amnesty, pardon or commutation of sentence in Grenada does not provide an adequate opportunity for considering individual circumstances, and in itself violates Article 4(6) of the Convention.  

71.             The Commission will first analyze the compatibility of the mandatory death sentence for the crime of murder with Articles 4, 5 and 8 of the Convention, in light of the terms of those provisions, their underlying principles, and relevant international and domestic precedents. The Commission will then determine whether the State has violated Mr. Baptiste’s rights under the Convention, because of the manner in which Mr. Baptiste was sentenced to death.

II. Articles 4, 5, and 8 of the American Convention and the mandatory death penalty 

72.             In light of the allegations raised by Mr. Baptiste, the Commission must first ascertain whether the practice of imposing the death penalty for the crime of murder through mandatory sentencing is compatible with Article 4 (right to life), Article 5 (right to humane treatment), and Article 8 (right to a fair trial) of the American Convention and the principles underlying those provisions: 

Article 4 of the American Convention provides as follows:

Article 4. Right to Life

(1)      Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.

(2)      In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes and pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime. The application of such punishment shall not be extended to crimes to which it does not presently apply.

 (3)     The death penalty shall not be reestablished in states that have abolished it. 

(4)      In no case shall capital punishment be inflicted for political offenses or related common crimes. Capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age or over 70 years of age; nor shall it be applied to pregnant women.

(5)      Every person condemned to death shall have the right to apply for amnesty, pardon, or commutation of sentence, which may be granted in all cases. Capital punishment shall not be imposed while such a petition is pending decision by the competent authority. 

73.             Article 4 of the Convention permits States Parties that have not abolished the death penalty to continue to impose it. At the same time, the Convention strictly regulates the manner in which the death penalty may be imposed by States Parties in their respective States. This restrictive approach under the Convention to the perpetuation of the death penalty mirrors the treatment of the death penalty generally under contemporary international and, as Part IV of this Report will indicate, domestic practice.  

74.             More particularly, drawing in part upon the past experience of international human rights bodies, several general principles of interpretation can be identified in respect of the death penalty provisions of international human rights instruments in general, and Article 4 of the Convention in particular. First, the supervisory bodies of international human rights instruments have subjected the death penalty provisions of their governing instruments to a rule of restrictive interpretation. In its Advisory Opinion on Restrictions to the Death Penalty under Articles 4(1) and 4(4) of the Convention, for example, the Inter-American Court of Human Rights adopted a restrictive approach to Article 4 of the Convention, finding that “the text of the article as a whole reveals a clear tendency to restrict the scope of this penalty both as far as its imposition and its application are concerned”.[44]  

75.             Other international human rights supervisory bodies have similarly afforded a strict interpretation of the death penalty provisions in human rights treaties. The U.N. Human Rights Committee has held in the context of Article 6 of the ICCPR, which parallels Article 4 of the Convention in certain respects,[45] that the law must strictly control and limit the circumstances in which a person may be deprived of his life by the authorities of the state.[46] The Committee has accordingly determined that the imposition of a sentence of death upon conclusion of a trial in which the provisions of the Covenant have not been respected constitutes, if no further appeal against the sentence is possible, a violation of Article 6 of the Covenant. Its recommended remedies in such cases have included  release,[47] and commutation of the death sentence.[48] The U.N. Special Rapporteur on Extra-Judicial, Summary or Arbitrary Executions has likewise emphasized that proceedings leading to the imposition of capital punishment must conform to the highest standards of independence, competence, objectivity and impartiality of judges and juries and other strict requirements of due process.[49] This Commission has similarly closely scrutinized the circumstances of death penalty cases to ensure strict compliance with the requirements of due process and judicial protection.[50]   

76.             It is also generally recognized that the death penalty is a form of punishment that differs in substance as well as in degree in comparison to other forms of punishment. It is the absolute form of punishment that results in the forfeiture of the most valuable of rights, the right to life, and once implemented, is irrevocable and irreparable. As the United States Supreme Court has observed, “the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.”[51] In the Commission's view, the fact that the death penalty is an exceptional form of punishment must also be considered in interpreting Article 4 of the Convention.

77.             Finally, with respect to the restrictions prescribed in Article 4 of the American Convention in particular, the Inter-American Court has identified three principal limitations explicitly prescribed in Article 4 on the ability of States Parties to the Convention to impose the death penalty: 

Thus, three types of limitations can be seen to be applicable to States Parties which have not abolished the death penalty. First, the imposition or application of this sanction is subject to certain procedural requirements whose compliance must be strictly observed and reviewed. Second, the application of the death penalty must be limited to the most serious common crimes not related to political offenses. Finally, certain considerations involving the person of the defendant, which may bar the imposition or application of the death penalty, must be taken into account.[52] [emphasis added] 

78.             The Court’s observations therefore accentuate the significance of strict adherence to and review of due process guarantees in implementing the death penalty in accordance with Article 4 of the Convention. Moreover, as part of that process, the Court suggests that certain circumstances of individual offenses and individual defendants may bar the imposition or application of the death penalty altogether, and therefore must be taken into account in sentencing an individual to death.  

79.             It is in light of the foregoing interpretive rules and principles that the Commission must determine whether the practice of imposing the death penalty through mandatory sentencing is compatible with the terms of Articles 4, 5 and 8 of the Convention and the principles underlying those provisions.  

80.             In the Commission’s view, several aspects of imposing mandatory death penalties for the crime of murder are problematic in the context of a proper interpretation and application of the Convention. First, it is well-recognized that the crime of murder can be perpetrated in the context of a wide variety of mitigating and aggravating circumstances, with varying degrees of gravity and culpability.[53] This conclusion is illustrated by the broad definition of murder under Grenada’s law, as the unlawful killing of another person with the intent to kill or to cause unlawful harm or injury.[54] It is also illustrated by the circumstances of Mr. Baptiste’s case. Notwithstanding the existence of such disparities, however, the mandatory death penalty seeks to impose capital punishment in all cases of murder, without distinction. It subjects an individual who, for example, commits a murder in a spontaneous act of passion or anger, to the equivalent and exceptional punishment as an individual who executes a murder after carefully planning and premeditation. 

81.             Mandatory sentencing by its very nature precludes consideration by a court of whether the death penalty is an appropriate, or indeed permissible, form of punishment in the circumstances of a particular offender or offense. Moreover,  by reason of its compulsory and automatic application, a mandatory sentence cannot be the subject of an effective review by a higher court. Once a mandatory sentence is imposed, all that remains for a higher court to review is whether the defendant was found guilty of a crime for which the sentence was mandated.  

82.             In the Commission’s view, these aspects of mandatory death sentences cannot be reconciled with Article 4 of the Convention, in several respects. As noted above, the mandatory death penalty in Grenada imposes the death penalty on all individuals convicted of murder, despite the fact that the crime of murder can be committed with varying degrees of gravity and culpability. Not only does this practice fails to reflect the exceptional nature of the death penalty as a form of punishment, but, in the view of the Commission, it results in the arbitrary deprivation of life, contrary to Article 4(1) of the Convention.  

83.             More particularly, imposing a mandatory penalty of death for all crimes of murder prohibits a reasoned consideration of each individual case to determine the propriety of the punishment in the circumstances, despite the fact that murder can be committed under widely-differing circumstances. By its nature, then, this process eliminates any reasoned basis for sentencing a particular individual to death and fails to allow for a rational and proportionate connection between individual offenders, their offenses, and the punishment imposed on them. Implementing the death penalty in this manner therefore results in the arbitrary deprivation of life, within the ordinary meaning of that term and in the context of the object and purpose of Article 4(1) of the Convention. 

84.             Accepted principles of treaty interpretation suggest that sentencing individuals to the death penalty through mandatory sentencing and absent consideration of the individual circumstances of each offender and offense leads to the arbitrary deprivation of life within the meaning of Article 4(1) of the Convention. Article 31(1) of the Vienna Convention on the Law of Treaties provides that a treaty shall be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.” The ordinary meaning of the term “arbitrary” connotes an action or decision that is based on random or convenient selection or choice rather than on reason or nature.[55] The U.N. Human Rights Committee suggested a similar meaning for the term arbitrary in the context of Article 6(1) of the ICCPR, in the case Kindler v. Canada.[56] In that case, the complainant, a citizen of the United States, was ordered extradited from Canada to face a possible death sentence in the State of Pennsylvania for a conviction of murder. The Committee found that Canada did not violate the complainant’s right under Article 6(1) of the ICCPR not to be arbitrarily deprived of his life, by extraditing him to the United States without seeking assurances from the United States’ Government that the death penalty would not be imposed. At the same time, the Committee suggested that the decision not to refuse extradition or to seek assurances must be shown to have been based upon a reasoned consideration of the circumstances of Mr. Kindler’s case: 

While States must be mindful of the possibilities for the protection of life when exercising their discretion in the application of extradition treaties, the Committee does not find that the terms of article 6 of the Covenant necessarily require Canada to refuse to extradite or to seek assurances. The Committee notes that the extradition of Mr. Kindler would have violated Canada’s obligations under article 6 of the Covenant, if the decision to extradite without assurances would have been taken arbitrarily or summarily. The evidence before the Committee reveals, however, that the Minister of Justice reached a decision after hearing argument in favor of seeking assurances. The Committee further takes note of the reasons given by Canada not to seek assurances in Mr. Kindler’s case, in particular, the absence of exceptional circumstances, the availability of due process, and the importance of not providing a safe haven for those accused of or found guilty of murder.[57] 

85.             The Committee has therefore suggested that an arbitrary decision includes one that is taken in the absence of a reasoned consideration of the circumstances of the case in respect of which the decision is made. In this respect, the mandatory death penalty can be regarded as arbitrary within the ordinary meaning of that term. The decision to sentence a person to death is not based  upon a reasoned consideration of a particular defendant’s case, or upon objective standards that guide courts in identifying circumstances in which the death penalty may or may not be an appropriate punishment.  Rather, the penalty flows automatically once the elements of the offense of murder have been established, regardless of the relative degree of gravity of the offense or culpability of the offender. 

86.             The mandatory death penalty cannot be reconciled with Article 4 of the Convention in another significant respect. As noted previously, the Inter-American Court has emphasized several restrictions upon the implementation of the death penalty that flow directly from the terms of Article 4 of the Convention. These include considerations relating to the nature of a particular offense, for example whether it can be considered a political or related common offense, as well as factors relating to the circumstances of an individual offender, for example whether the offender was under the age of 18 or pregnant at the time he or she committed the crime for which the death penalty may be imposed.  Article 4 of the Convention itself presumes that before capital punishment may be lawfully imposed, there must be an opportunity to consider certain of the individual circumstances of an offender or an offense. By its very nature, however, mandatory sentencing imposes the death penalty for all crimes of murder and thereby precludes consideration of these or any other circumstances of a particular offender or offense in sentencing the individual to death.  

87.             Similarly, by reason of its compulsory nature, the imposition of a mandatory death sentence precludes any effective review by a higher court as to the propriety of a sentence of death in the circumstances of a particular case. As indicated previously, once a mandatory death sentence is imposed, all that remains for a higher court to review is whether the defendant was properly found guilty of a crime for which the sentence of death was mandated.  There is no opportunity for a reviewing tribunal to consider whether the death penalty was an appropriate punishment in the circumstances of the particular offense or offender. This consequence cannot be reconciled with the fundamental principles of due process under Articles 4 and 8 of the Convention that govern the imposition of the death penalty, which, as the Inter-American Court has recognized, include strict observance and review of the procedural requirements governing the imposition or application of the death penalty. The absence of effective review further illustrates the arbitrary nature of implementing the death penalty through mandatory sentencing, and lead the Commission to conclude that this practice cannot be reconciled with the terms of Article 4 of the Convention and its underlying principles.  

88.             The Commission is also of the view that imposing the death penalty in all cases of murder is not consistent with the terms of Article 5 of the Convention or its underlying principles. Article 5 of the Convention provides as follows: 

Article 5 – Right to Humane Treatment 

(1) Every person has the right to have his physical, mental, and moral integrity respected.

(2) No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.

(3) Punishment shall not be extended to any person other than the criminal.

(4) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall be subject to separate treatment appropriate to their status as unconvicted persons.

(5) Minors while subject to criminal proceedings shall be separated from adults and brought before specialized tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors.

(6) Punishments consisting of deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoners.