... continued b.
Articles
4, 5, 7 and 8 - delay in victims' criminal proceedings 66.
The petitioners in four of the cases that are the subject of this Report,
Case Nos. 12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey),
12.107 (Carl Baker) and 12.126 (Dwight Fletcher), have alleged violations of one
or more of Articles 7(4), 7(5), 7(6) and 8(1) of the Convention, on the ground
that the victims were denied the right to be brought promptly before a judge
subsequent to their arrest, were denied the right to be tried within a
reasonable time, and have been subjected to
prolonged periods of detention. In each of these cases, the victims were
detained by authorities in Jamaica from the date of their arrest to the date of
their final appeal before the Judicial Committee of the Privy Council. The
delays alleged to have occurred in victims' criminal proceedings are set out
below, based upon the history of the victims' proceedings as described in Part
III.A.1 of this Report. Table
4
67.
In each of these cases, the Petitioners have alleged that the delays in
bringing the victims before a judge subsequent to their arrests and in trying
the victims were unreasonable. As a
consequence, it is alleged that the State has violated the victims' rights to be
brought promptly before a judge and the right to trial within a reasonable time
under Articles 7(5), 7(6) and 8(1) of the Convention. Cumulatively, they submit that the delay in each case is
wholly attributable to the State, and suggest that the evidence in the criminal
cases was not particularly complex. The petitioners also argue that the State
has not offered any explanation for the delay. Some of the Petitioners argue
further that the delays in trying the victims, including the time that the
Petitioners have been detained on death row, constitute cruel, inhuman or
degrading punishment or treatment contrary to Article 5 of the Convention and
therefore render the victims' executions unlawful. 68.
In presenting their arguments, the Petitioners have intimated that the
right to be tried within a reasonable time applies to all trial and all appeal
proceedings, and therefore the entire delay between the date of the victims'
arrests and the date on which their petitions for Special Leave to Appeal to the
Judicial Committee of the Privy Council were dismissed should be taken into
account in determining whether the State has violated Article 7(5), 7(6) and
8(1) of the Convention. In support
of their positions in this regard, the Petitioners refer to the United Nations
Human Rights Committee's decision in the case Paul
Kelly v. Jamaica,[31]
in which the Committee reaffirmed that in all cases, and in capital cases in
particular, the accused is entitled to trial and appeal proceedings without
undue delay, whatever the result of the judicial proceedings. 69.
In several cases, the Petitioners provide specific examples of the manner
in which they were denied their rights to be brought promptly before a judge and
to be tried within a reasonable time. The
particulars of the allegations in each of the cases are as follows: Desmond McKenzie (Case
12.023) 70.
The petitioners in Case 12.023 (Desmond McKenzie) claim that Mr. McKenzie
was not brought before a judge until three weeks after his arrest, in violation
of Article 7(5) and 7(6) of the Convention.
The Petitioners cite the United Nations Human Rights Committee’s
decision in Peter Grant v. Jamaica,[32]
where the Committee held that one week in detention without being brought before
a judge violated the victim's right to be brought promptly before a judge. They
also refer to the Committee's decision in Paul Kelly v. Jamaica,[33]
in which Committee Member Wennergren defined "promptly" as not more
than two to three days. 71.
In their observations on the State's contention that the victim was
permitted to visit a hospital following his arrest and therefore was not
detained, the Petitioners indicate that Mr. McKenzie was not freed from custody.
While the Petitioners acknowledge that the victim was taken to a hospital
following his arrest, they claim that he was handcuffed and accompanied by
police officers. The petitioners
also indicate that the victim was under guard while he was at the hospital, and
that at the end of his visit he was returned to prison. The petitioners
therefore maintain that Mr. McKenzie was in police custody from the date of his
arrest until the date of his trial. They also maintain that he was not brought
"promptly before a judge…[to] decide without delay on the lawfulness of
his arrest or detention…," pursuant to Articles 7(5) and 7(6), until
three weeks after his arrest. 72.
In response to the State's contention that, even if Mr. McKenzie was
always in custody, his detention was not detrimental to him because he was
permitted to visit the hospital, the Petitioners assert that to provide medical
treatment does not constitute exceptional treatment for a prisoner. Rather, they
maintain it amounts to a standard necessity for the proper and human treatment
of a person in custody. The
petitioners submit further that the State's arguments do not justify the delay
in bringing Mr. McKenzie before a judge concerning the lawfulness of his arrest
and detention. Moreover, they note that the State failed to give reasons for the
two to three week delay between the time the victim was released from the
hospital and the time he was brought before a judge. 73.
Finally, the Petitioners allege that the 30 month delay between Mr.
McKenzie's arrest and his conviction on his second trial was excessive, contrary
to Articles 5(2) and 7(5) of the Convention, and that the entire 4 year and 8
month delay that elapsed between his arrest and the determination of his final
appeal contravenes Article 5 of the Convention as cruel, inhuman or degrading
punishment or treatment. They argue in this regard that the need for a re-trial
was the fault of the State and cannot constitute an excuse for the delay.
The petitioners rely on the decision in Pratt
& Morgan v. Attorney General for Jamaica,[34]
in which the Judicial Committee of the Privy Council held that executing a
prisoner who has been held on death row for a prolonged period would violate the
prohibition on inhuman and degrading punishment under Section 17(1) of the
Constitution of Jamaica. Andrew Downer and
Alphonso Tracey (Case 12.044) 74.
The petitioners in Case 12.044 (Andrew Downer and Alphonso Tracey) claim
that there was a prolonged delay in bringing the victims before a judge after
their respective arrests, as well as in bringing them to trial.
The petitioners indicate that Mr. Downer was arrested on April 30, 1991.
He was taken to a hospital after the police detained him for questioning, and he
was returned to the police station, on May 8, 1991. He was not, however, brought
before a judge until June 10, 1991. Mr.
Tracey was arrested on May 5, 1991, but he was not brought before a judge until
June 10, 1991. Consequently, more
than a month passed before the victims were brought before a judge in order to
review their arrests and the lawfulness of their detention. The petitioners
declare that, even though the State denies that such a delay constitutes a
violation of Article 7(5), it is the State's burden to give detailed reasons as
to why the State claims that the one-month period following their arrests did
not constitute an unreasonable delay. The petitioners claim that the mere denial
of a delay is not enough. 75.
Additionally, the Petitioners argue that the victims were denied a speedy
trial contrary to Articles 7(5) and 8(1) of the Convention, as a result of the
delay of over three and a half years in bringing the victims to trial. The
petitioners indicate that the case was based on the evidence of only one
witness, that there was little investigation done by the police, and that there
was no complicated forensic evidence against the victims. Citing the
Commission's decision in the case Gimenez
v. Argentina,[35]
the Petitioners argue that the State has failed to discharge its burden of
justifying the delay by reference to sufficient relevant criteria. Dwight Fletcher (Case
12.126) 76.
The petitioners in Case 12.126 (Dwight Fletcher) allege that the State
failed to comply with the requirements of Articles 7(4), 7(5) and 8(1) of the
Convention. The petitioners indicate that Mr. Fletcher was not brought before a
judge to review the lawfulness of his detention until three weeks after his
arrest. They also claim that this was a delay of two years and nine months
between the victim's arrest and his conviction, and that a further two years and
five months passed from the date of his conviction to the date of the Privy
Council's ruling on his appeal. The petitioners therefore claim that the State
failed to bring the victim promptly before a judge, or to hold a trial
"within a reasonable time", as required under Articles 7 and 8 of the
Convention. 77.
The petitioners also argue that the victim's detention on death row since
his August 2, 1996 conviction violates Articles 5(1) and 5(2) of the Convention. Carl Baker (Case
12.107) 78.
The petitioners in Case 12.107 (Carl Baker) assert that the right to be
tried within a reasonable time and without undue delay pursuant to Article 8(1)
of the Convention extends to all appeal proceedings. The petitioners further
indicate that there was a delay of one year and three months from the victim's
arrest until his trial, and claim that this was unreasonable as contrary to
Article 8(1) of the Convention. 79.
In response to the State's claim in its reply to the petition that part
of the delay in trying the victim was due to the convening of a preliminary
inquiry, the Petitioners indicate that the preliminary inquiry would not, and
should not, take one year and three months in the circumstances of the victim's
case. As indicated by the State, the purpose of a preliminary inquiry is to
establish basic facts in order to determine whether a prima
facie case can be made out against the defendant. The petitioners concede that in cases where there are many
witnesses and complicated evidence, the preliminary inquiry could take several
months. In this case, however, the
Petitioners indicate that there were only five witnesses apart from the victim,
two of whom were detectives. Therefore,
the Petitioners suggest that the State has failed to justify a delay of one year
and three months in the victim's trial. c. Article 5 -
conditions of detention and method of execution 80.
The petitioners in each of the five cases that are the subject of this
Report also allege that the conditions in which the victims have been detained
by the State constitute a violation of each victims' rights under Article 5(1)
of the Convention to have his physical, mental and moral integrity respected, as
well as the right not to be subjected to cruel, inhuman or degrading punishment
or treatment under Article 5(2) of the Convention. In their submissions, the Petitioners provide information as
to the general conditions of detention facilities in Jamaica.
The petitioners also provide information as to the particular conditions
of detention experienced by the victims in each of their cases. Finally, the
Petitioners in Case 12.023 (Desmond McKenzie) allege that the State violated
Articles 5(4) and 5(6) of the Convention, also in relation to the victim's
conditions of detention.
i.
Allegations of fact 81.
With respect to the conditions of detention facilities in Jamaica
generally, the Petitioners refer to reports prepared by various governmental and
non-governmental organizations respecting the State's prison conditions. These
include Americas Watch: Prison Conditions
in Jamaica (1990); Jamaica Prison Ombudsman: Prison and Lock Ups (1983); Americas Watch: Death Penalty, Prison Conditions and Prison Violence (1993); Jamaica
Council for Human Rights: A Report on the
Role of the Parliamentary Ombudsman in Jamaica (Summer 1994); Amnesty
International: Proposal for an Inquiry
into Death and Ill-treatment of Prisoners in St. Catherine's District Prison
(1993), and Americas Watch: Human Rights
in Jamaica (April 1993). These reports include information regarding the
physical conditions of the prisons and prisoners, the treatment of prisoners by
prison staff, and the status of medical, educational and work facilities and
programs in various prisons and lock up facilities in Jamaica. 82.
According to these reports, conditions of detention facilities in Jamaica
are poor, and in many instances fall short of the standards prescribed by the
United Nations Minimum Standards for the Treatment of Prisoners. The Jamaica
Council for Human Rights, for example, stated in 1994 that "Although
Jamaica faces a grave lack of resources, and still implements the death penalty,
this does not absolve the government from ensuring the humane treatment of
persons in state custody." Furthermore, the Jamaica Prison Ombudsman noted
that "no genuine effort has been made by the immediate Ministry (the
Corrections Ministry) or associated Ministries to alleviate the grave problems
listed." 83.
The petitioners cumulatively report that the victims are detained on
death row in St. Catherine's District Prison, which was built in the 18th
century and was formerly a slave market. The
petitioners submit that the victims are locked in their cells for 23 hours a
day, and are deprived of a mattress or other bedding and adequate sanitation.
They also claim that the victims' cells have inadequate ventilation and no
electric light. No medical or psychiatric care is provided to prisoners, and the
food and water provided for prisoners are inadequate. The petitioners also state
that there are no adequate or effective complaint mechanisms for dealing with
prisoners' complaints. 84.
The petitioners in all of the cases also provided particulars of the
conditions of detention alleged to have been experienced by the victims in these
cases, as set out below: Desmond McKenzie (Case
12.023) 85.
The Petitioners in Case 12.023 (Desmond McKenzie) allege violations of
Articles 5(1), 5(2), 5(4) and 5(6) of the Convention, because of poor prison
conditions, ill-treatment suffered by the victim during his detention, and the
fact that the victim was detained with convicted persons during his pre-trial
detention. The petitioners allege that during Mr. McKenzie's pre-trial detention
he was subjected to inhuman and degrading treatment when he was required to
share cells with 12 to 15 other prisoners in Chapelton, May Pen and Four Paths
lock ups, and in St. Catherine's District Prison. The petitioners claim that the
victim, while on remand, was detained with convicted prisoners in St.
Catherine's District Prison contrary to Article 5(4) of the Convention. They
claim further that the cells in which the victim was detained had foul odors and
were infested with flies and maggots. The cells also had no electric light, no
furniture or bedding other than two concrete slabs, and the prison
"toilets" and corridors were covered in maggots and flies. The
petitioners also state that the only manner for prisoners to bathe was with a
garden hose and that there were no exercise facilities and no educational
facilities or books. The victim indicates that he was beaten at Four Paths lock
up, but that he was unable to identify the officers who assaulted him.
86.
On another occasion, the Petitioners claimed that the victim was held in
a 9ft. by 6ft. cell at St. Catherine’s District Prison that he shared with 2
other prisoners. The toilet was outside the cell and there was no bucket to use
as a toilet inside the cell. Consequently, the victim starved himself most of
the time to avoid having to go to the bathroom. There were no washing facilities
and no exercise or educational facilities. Moreover, the Petitioners indicate
that the victim was subject to beatings. For example, the Petitioners claim that
on February 28, 1995, a prisoner broke down a fence. The next morning,
unidentified warders entered the victim's cell and beat him with batons, and
repeated this conduct in the neighboring cell. The victim received a cut on his
head which stopped bleeding that day, and he had stomach pains for four days and
bruises on his back. He requested to see a doctor but he was denied treatment.
The victim also claims that he made complaints to the supervising warder,
but nothing came of these complaints.
87.
According to the Petitioners, the victim has also had back problems since
the beginning of his detention, which are very painful. The victim claims that
in the morning, he has to walk on his hands and knees until his back warms up.
The victim states that he has complained for over four years to the State about
his problems and that nothing has happened. The victim has only been able to see
a doctor once, who prescribed him medicine, but the prison authorities will not
give the medicine to him. The
victim also claims that he has had ring worm in his left ankle and foot for
about three years, and that each time he puts his name on a list to see a
doctor, he is unsuccessful. He tries not to complain because if he does he runs
the risk of being beaten or being denied food or water. The petitioners also
allege a violation of Article 5(6) of the Convention because there are no
educational facilities where the victim is being held, and therefore argue that
this constitutes a failure of the State to impose a sentence which aims for
reform and social re-adaptation of prisoners.
88.
The Petitioners have also submitted information regarding three specific
incidents of abuse against the victim. The petitioners indicate that on March 5,
1997, subsequent to an attempted prison breakout by four other inmates, the
victim was beaten and his spectacles were destroyed and not replaced for 14
months after numerous requests. In addition, the victim's belongings, including
his clothes, toothpaste, toothbrush, trial transcript and personal and legal
correspondence were destroyed or burned. The
victim states that he complained to the local ombudsman on March 10, 1997,
August 7, 1997, and October 13, 1997, but that prison authorities have failed to
investigate this incident. After
this incident, the victim was denied medical treatment. The Petitioners also
claim that without his spectacles, the victim could not read or write, and
therefore had difficulty preparing for his appeal. The Petitioners therefore
allege that the destruction of the victim's correspondence, trial transcript and
spectacles also violated his right under Article 8(2)(d) of the Convention to
defend himself and to communicate freely and privately with his counsel. 89.
Also according to the Petitioners, on August 3, 1997 the victim was
subject to an assault and threats by a warder named Ferguson. The petitioners
allege that the victim was released from his cell to bathe, but that Warder
Ferguson subsequently locked the victim back in his cell while the victim still
had shampoo in his hair. Warder Ferguson then opened the victim's cell and told
him to get out. When the victim refused, Warder Ferguson entered the victim's
cell and smashed his light bulb. The warder then locked the cell and told the
victim that he must not catch him out of his cell, because the warder would kill
the victim before the Government could do so. The warder added that he could
kill anyone without getting into trouble. The victim reported the incident to
the Department of Correction Services that same day. 90.
The Petitioners also submit that on April 3, 1998, the victim was locked
in his cell while it was being sprayed with insecticide. The victim indicates
that during this time it was difficult to breath, and that he was forced to eat
his meals in that environment. The
victim was not released from his cell until the next day, and then only for one
hour. Andrew Downer and
Alphonso Tracey (Case 12.044) 91.
The petitioners in Case 12.044 (Andrew Downer and Alphonso Tracey) allege
violations of Articles 5(1) and 5(2) of the Convention because the State refused
to afford Mr. Downer adequate medical treatment during his questioning and
detention, which they allege constitutes torture and cruel and inhuman
treatment. The petitioners submit that the prison authorities refused to treat
Mr. Downer with regard to a gun wound in his stomach, which he received during
the attempted robbery the night before he was arrested. Rather, the police took
the victim to the police station lock up where he was detained for questioning.
Eventually, the victim was transferred to the Kingston Public Hospital for
treatment and remained in the hospital for 8 days. He was then returned to
detention in an unsanitary cell even though his injuries were still serious and
required attention. On death row,
Mr. Downer complained to prison authorities 6 times during a 5 month period
before he was able to tell a doctor of his pain.[36]
The petitioners maintain that Mr. Downer continues to suffer pain as a result of
his gun shot injuries, and that prison authorities continue to refuse him proper
medical care.[37]
92.
Finally, the Petitioners allege that the victims are locked in their
cells for 23 hours per day, and are deprived of a mattress or other bedding. The
victims are also deprived of adequate sanitation, and are forced to use a bucket
as a toilet. The petitioners claim that the cells have inadequate ventilation
and no electric light, that no medical or psychiatric care is provided to
prisoners, and that the food and water provided for prisoners are inadequate. Carl Baker (Case
12.107) 93.
The petitioners in Case 12.107 (Carl Baker) allege that the victim's
prison conditions violate his right to humane treatment under Article 5 of the
Convention, as well as Rules 86 through 91 of Jamaica's Correctional Institution (Adult Correctional Centre) Rules 1991. The
petitioners allege that Mr. Baker has been detained in appalling conditions
since his arrest. They also allege that Mr. Baker has been subjected to cruel,
inhuman and degrading treatment by police officers in lock ups and warders at
St. Catherine's District Prison. The
petitioners submit that the victim has been subjected to mental and physical
torture both by the police before
trial, by warders while on remand at St. Elizabeth's lock up and by warders at
St. Catherine's District Prison, and that he continues to suffer threats of
further physical abuse. The victim has been assaulted while on remand at St.
Catherine's prison and he is deprived of proper medical treatment.
He has regularly been threatened by prison staff and the most recent
threats on his life have been as a result of making complaints to his lawyers,
the prison superintendent and governmental authorities about the treatment he is
subjected to in prison. 94.
For example, the Petitioners allege that on August 11, 1995, the first
day of questioning by the police following his arrest, the victim was beaten
while held in custody. Similarly, the Petitioners claim that the victim was
severely beaten and his belongings were destroyed by prison officials following
an attempted escape from prison by other inmates on March 5, 1997. The victim is
said to have reported the incident to the Parliamentary Ombudsman, but no
response to his complaint has been received. Also, according to the Petitioners,
a warder named Mr. Onnis threatened the victim with death on March 16, 1999, and
told the victim that he has no rights at the prison because he was brought there
to die. Further, the Petitioners
indicate that on April 7, 1999, and again on April 9, 1999, the victim's section
of the prison was searched by officials, including warders, police officers and
soldiers. They claim that the warders spilled the victim's drinking water over
his papers, documents and bedding. When the victim called out during the search,
a soldier threatened him at gunpoint, telling him to be quiet because he was a
condemned man who had been brought to the prison to die. The petitioners also
indicate that the victim received an unprovoked beating to his face and stomach
by a warder, Mr. Burke, and was told that he would be killed the next time
anything happened on death row. 95.
With respect to his prison conditions, the Petitioners state that the
victim is locked in his cell 23 hours per day and that he is deprived of proper
medical care, in part because his medication is out of date. They claim that
there is inadequate ventilation and lighting in the victim's cell, and that the
victim is deprived of proper bedding and adequate sanitation, as he must use a
bucket as a toilet. The victim's food and water is inadequate and dirty, and his
visiting time with his family is restricted to one visit per month and two or
three minutes per visit. The petitioners also allege that there is no proper
mechanism for addressing complaints by prisoners about prison conditions. Dwight Fletcher (Case
12.126) 96.
The petitioners in Case 12.126 (Dwight Fletcher) allege violations of
Articles 5(1), 5(2) and 5(4) because of the victim's treatment while in
detention, and the fact that he was detained with convicted prisoners prior to
his conviction. With respect to Article 5(4) of the Convention, the Petitioners
allege that the victim was held with convicted prisoners during his pre-trial
detention, at St. Catherine's District Prison, General Penitentiary and
Mandeville Police Station. 97.
The petitioners have also referred to specific instances during which the
victim was beaten and threatened while in detention. The petitioners submit, for
example, that subsequent to his arrest on November 21, 1993, Mr. Fletcher was
kicked and beaten with batons at Montego Bay police station by Sgt. Bowen and
two other officers, first at the station and later at a location by riverside.
During this incident, the officers fired shots against the victim's ear, removed
his handcuffs and told him to run, but he refused. They continued beating the
victim and they "ground" his fingers with the heals of their boots.
When the officers took him back to the police station, Supt. Morrison asked him
if he was ready to tell them where "Watson" was. At this time, the
victim had been beaten so badly that he could not recognize his own name, and
they continued to beat him until he was unconscious.
98.
Similarly, the Petitioners indicate that the victim was taken to
Mandeville police station on November 22, 1993, where Corporal Anderson visited
his cell, took him out to the corridor and beat the victim in his stomach until
he could not get up. Subsequently, on November 24, 1993, another police officer,
Detective Daley, took the victim to Deputy Supt. Campbell's office, where they
questioned the victim and beat him until blood came out of his ears when he
would not sign a document with writing on it. After a week in Mandeville, the
victim was taken to the Porus police station where he was handcuffed, denied
food for three to four days, and was not permitted to use the bathroom. The
petitioners describe several other specific incidents during the victim's
pre-trial detention when he was beaten and threatened at various police stations
and lock ups, including Mandeville police station, Cross Keys police station,
and Kendal prison. 99.
The Petitioners also refer to instances of abuse suffered by the victim
during his post-conviction detention. For example, at St. Catherine's District
Prison in 1997, the Petitioners allege that the victim was beaten by over two
dozen warders during a prison riot at that institution and sustained injuries
all over his body. As the victim had only been detained at the prison for one
week, however, he was not able to identify any of the warders involved in the
incident. In addition, the Petitioners state that the victim's cell was searched
on April 8, 1999, and that during the search the warders destroyed the victim's
trial transcript and other legal documents by pouring water over them. The
petitioners add that a warder named Corporal Kennedy stripped the victim naked
from the waist down and lifted him into the air by his testicles, causing the
victim great pain. The victim reported the incident to another warder, Samuel
Heslop, on April 12, 1999, who authorized him to attend the prison surgery, but
the victim was denied access to the prison surgery by a medical staff warder. 100.
With respect to the victim's prison conditions generally, the Petitioners
claim that he is kept in solitary confinement in a 9ft. by 6ft. cell for 23
hours a day. The victim has no bedding on which to sleep, with the exception of
a foam mattress, and must use a bucket as a toilet. There is inadequate
ventilation and no electric light in his cell. Moreover, his food and water are
inadequate and he is not given the correct medication prescribed to him by a
doctor. The petitioners also claims there is no adequate mechanism for
addressing prisoner's complaints about prison conditions. Anthony Rose (Case
12.146) 101.
The Petitioners in Case 12.146 (Anthony Rose) argue that the victim's
conditions of detention violate Article 5 of the Convention as well as the
United Nations Standard Minimum Rules for the Treatment of Prisoners. The
petitioners assert that the victim's conditions of detention are far below
humane standards. He is locked in a 8ft. by 5ft. cell, which is full of
cockroaches and other insects, for 23 hours a day. The victim is deprived of a
mattress and sleeps on a slab of concrete, with a gutter full of waste in front
of his cell which has a foul odor. The victim is also deprived of adequate
sanitation and must use a bucket as a toilet. The cells have inadequate
ventilation and no electric light, and the victim is served water with
impurities and deplorable food such as spoiled meat. The petitioners also allege
that there is a lack of medical and psychiatric care at the prisons. This is
based in part on the fact that the victim has made two requests to see a doctor
at the prison, and on each occasion it took approximately four months to see a
doctor. The petitioners also claim that there is no adequate or effective
complaint mechanism for dealing with prisoner complaints. 102.
Furthermore, the Petitioners allege that the victim's rights under
Articles 5(1) and 5(2) of the Convention have been violated, because the
execution of the death sentence by hanging is cruel, inhuman and degrading
punishment. In this regard, the Petitioners claim that the victim is denied the
right to argue in any domestic court that execution of the death sentence by
hanging is unconstitutional since Section 17(2) of the Constitution of Jamaica[38]
is drafted so as to immunize from attack laws which pre-dated Independence.
Consequently, the Petitioners maintain that an argument concerning the
practice of hanging can only be made before the Commission under the American
Convention. 103.
In support of their position that execution by hanging constitutes cruel,
inhuman or degrading punishment or treatment, the Petitioners provided
affidavits from three doctors, who describe the physical effects of hanging.
These include a sworn affidavit by Dr. Harold Hillman on April 28, 1999, in
which Dr. Hillman makes several detailed observations in respect of the
physiological impact of hanging on a prisoner. He notes, for example, that death
during hanging results from slow strangulation and asphyxiation, during which
the prisoner experiences humiliating and degrading physical reactions such as
sweating, drooling and twitching. In addition, as the noose is placed between
the chin and larynx, the prisoner cannot cry out because his vocal chords are
obstructed and compressed, and this causes great distress. According to Dr.
Hillman, hanging is also humiliating because the prisoner is masked and his
wrists and ankles are bound, and as a consequence the prisoner cannot react to
his pain, distress and feeling of asphyxia by the usual physiological responses
of crying out or moving violently. 104.
The petitioners also argue that even though Article 4(2) of the
Convention permits the death penalty in countries that have not abolished it,
Article 4 cannot conflict with Article 5 of the Convention. The petitioners
claim that execution by hanging contravenes internationally accepted standards
of humane conduct, as prescribed in Article 5(2) of the Convention, and
consequently that Article 4(2) of the Convention cannot be relied upon by the
State to authorize hanging as a method of execution. In support of this
position, the Petitioners cite the decision of the United Nations Human Rights
Committee in the case Ng v. Canada,[39]
in which the Committee stated that "when imposing capital punishment, the
execution of the sentence… must be carried out in such a way as to cause the
least possible physical and mental suffering." ii. Allegations of
Law 105.
In respect of the legal standards that should be considered in
determining whether prison conditions constitute violations of Article 5 of the
Convention, the Petitioners in the cases before the Commission cumulatively rely
upon several provisions of the United Nations Standard Minimum Rules for the
Treatment of Prisoners. These include Article 10, which states that all
accommodation provided for the use of prisoners shall "meet all
requirements of health, due regard being paid to climatic conditions and
particularly cubic content of air, minimum floor space, lighting, heating and
ventilation."[40]
The petitioners also cite several decisions of the U.N. Human Rights Committee
and the European Court of Human Rights regarding humane treatment in the context
of prison conditions. These include the case Mukong v. Cameroon,[41]
in which the U.N. Human Rights Committee noted that certain minimum conditions
of detention must be observed regardless of a State Party’s level of
development. They also referred to the Greek
Case,[42] in which the European Commission and Court of Human
Rights found that prison conditions may amount to inhuman treatment, where those
conditions involve overcrowding, inadequate toilet and sleeping arrangements,
inadequate food and recreation, and incommunicado detention.
106.
Moreover, the Petitioners in Case Nos. 12.023 (Desmond McKenzie), 12.044
(Andrew Downer and Alphonso Tracey), 12.107 (Carl Baker), and 12.126 (Dwight
Fletcher) submit that the detention of the victims in these cases in inhumane
and degrading conditions should be considered to render the carrying out of
their death sentences unlawful, in the same manner that prolonged
post-conviction detention was found by the Judicial Committee of the Privy
Council in the Pratt and Morgan [1994]
2 A.C. 1 (P.C.) case to render a subsequent execution unlawful.
d.
Articles 8(1) and 8(2) - Right to a fair trial 107.
The petitioners in the five cases within this Report argue that the State
has violated the rights of the victims in those cases to a fair trial under
Article 8 of the Convention, based upon one or more of several grounds: that the
trial judge was not competent or impartial; that the victims were not notified
of the charges against them; that the victims were not provided with adequate
time and facilities to prepare their defenses; and that the victims were not
provided with competent legal representation during their criminal proceedings.
Some of the Petitioners have also argued that the violations of the victims'
rights under Article 8 of the Convention render their executions arbitrary
contrary to Article 4 of the Convention. 108.
The particulars of the complaints in each case are as follows: Desmond McKenzie (Case
12.023) 109.
The Petitioners claim that the State violated Mr. McKenzie's right to a
fair trial because the trial judge lacked impartiality, and because Mr. McKenzie
was provided with inadequate legal representation. More particularly, the
Petitioners argue that the State violated Mr. McKenzie's rights under Article
8(1) of the Convention, because the trial judge's treatment of the evidence, his
comments and summary of the facts during the trial, and his conduct generally
was biased and prejudicial. The petitioners claim that the judge ridiculed Mr.
McKenzie's attorney and told the jury that Mr. McKenzie's case was not one of an
accidental murder, which was the basis of Mr. McKenzie's defense. The
petitioners therefore claim a denial of a fair trial based on a lack of justice
and impartiality. 110.
In support of their position, the Petitioners claim in their submission
to the Commission dated August 18, 1998, that the State "conceded"
that the judge's instructions to the jury in Mr. McKenzie's trial were biased.
The petitioners state that this concession supports their submissions under
Article 8(1) of the Convention, and therefore that executing Mr. McKenzie would
violate Article 4 of the Convention. They also reject the State's contention
that the concession was erroneous. Rather, the Petitioners suggest that in all
of the circumstances the concession was made in good faith at the time and
therefore the State should be estopped from amending its position in its
original reply to the petition. The petitioners suggest that the Commission
should either review Mr. McKenzie's case on the basis of the original
submission, or resolve any doubts as to the State's intention in its reply in
the victim’s favor. 111.
Additionally, the Petitioners claim that the State is responsible for
violating Article 8(2) of the Convention, because Mr. McKenzie was provided with
inadequate legal representation. The petitioners claim that the trial judge
would not grant a short adjournment on the first day of Mr. McKenzie's trial,
even though his legal representatives were either not present or not available.
Since his lawyers were absent and the judge would not adjourn the trial, Mr.
McKenzie was forced to conduct a cross examination of the prosecution's
principal witness, Marlene Dawson, without any prior experience or legal
knowledge.[43] 112.
In response to the State's observations, the Petitioners recognize that
the right to counsel under the Constitution of Jamaica is not an absolute right,
as was held by the Judicial Committee of the Privy Council in the case Robinson
v. R.[44]
The Petitioners argue, however, that the accused in the Robinson case had a history of requesting adjournments. In Mr.
McKenzie's case, on the other hand, this was his first request for an
adjournment. The petitioners claim that this fact was not properly considered by
the trial judge in refusing the adjournment. 113.
The petitioners claim further that the violations of Article 8 concerning
the victim also constitute violations of Articles 4 and 5 of the Convention, on
the basis that it is cruel and inhuman treatment to sentence a person to death
after an unfair trial, and that it results in the arbitrary deprivation of life. Andrew Downer and
Alphonso Tracey (Case 12.044) 114.
The petitioners in Case 12.044 (Andrew Downer and Alphonso Tracey) claim
that the State denied the victims the
right to be notified in detail of the charges against them contrary to Article
8(2)(b) of the Convention. The
petitioners indicate that the indictment against them was amended during their
trial, in violation of their right to a fair trial. The amendment occurred during trial, after Mr. Riley and one
of the officers who attended the victim's identification parade testified. The
prosecution amended the charges to include the charge of murder in the course or
furtherance of robbery, after the judge ruled that there was no case for murder
in the course or furtherance of the act of terrorism. The trial judge allowed
the amendment over the objections of defense counsel. As a
consequence, the Petitioners argue that the victims were deprived of their
right to proper notification in detail of the charges against them in order to
allow them the necessary time and means to prepare their defense and examine
witnesses in conformity with such charges. 115.
The petitioners also claim that a violation of Article 8 results in a
violation of Article 4 of the Convention because their case involves the
mandatory application of the death penalty.
The petitioners argue that the imposition of a sentence of death after a
trial in which provisions of the Convention have been violated constitutes an
arbitrary deprivation of life.[45] Carl Baker (Case
12.107) 116.
The petitioners in Case 12.107 (Carl Baker) claim that the State has
violated the victim's rights under Article 8 of the Convention, because the
court which tried the victim was incompetent and because the victim received
inadequate legal representation. More
particularly, the Petitioners argue that the State violated Mr. Baker's rights
under Article 8(1) because the trial judge was not aware of sentencing
procedures. The petitioners argue that the trial judge in Mr. Baker's case did
not know that the charge for which
Mr. Baker was found guilty required a mandatory death sentence.
The judge had sentenced Mr. Baker to life in prison, but, two and a half
hours later and at the request of the prosecution, re-sentenced Mr. Baker to
death. The petitioners argue that for the victim to have proper notice of the
charges against him, the information must include the likely punishment imposed
if he is found guilty. Additionally, the Petitioners maintain that in order for a
trial to be fair, the accused, his representative, and the judge should be aware
of the sentence which must be imposed in the event of a guilty verdict.
Therefore, the Petitioners argue that the tribunal was led by an incompetent
judge and Mr. Baker was deprived of a fair trial contrary to Article 8(1) of the
Convention. 117.
The petitioners argue further that the State violated the victim's rights
under Article 8(2) of the Convention, because of inadequate legal representation
and inadequate time and facilities for preparation of the victim's defense. The
petitioners argue that the victim's counsel failed to warn him at any stage of
the trial that, if convicted of the three murders, the victim faced the death
penalty. The petitioners also claim that the victim could only meet with counsel
twice before trial for approximately 15 to 20 minutes each time, and that his
counsel did not show him the prosecution's statements or discuss them at either
of these meetings. The petitioners indicate further that the victim did not see
counsel before or during appeal, despite the fact that he wrote to him. In
support of their position, the Petitioners cite the decision of the United
Nations Human Rights Committee in the case of Paul Kelly v. Jamaica,[46]
which declared that there is no right for the accused to choose counsel provided
free of charge by the State, but "measures must be taken to ensure that
Counsel, once assigned, proves effective representation in the interests of
justice." The petitioners also
cite the decision of the United Nations Human Rights Committee in the case of Aston
v. Jamaica[47]
in, which it declared that "In cases in which a capital sentence may be
pronounced, it is axiomatic that sufficient time must be granted to the accused
and his counsel to prepare the Defence for trial; this requirement applies to
all stages of the judicial proceedings" The petitioners therefore claim the
victim's lack of opportunity to communicate with counsel, seriously prejudiced
the provision of effective legal representation for the victim. 118.
Furthermore, the Petitioners allege a violation of Article 8(2)(f) of the
Convention. They claim that the State failed to ensure that a particular
individual, Edward Morgan, appeared as a witness at trial, after it was
discovered that Mr. Morgan's witness statement could not be found in the court
file. Edward Morgan was the person who first saw the victim after the victim
fled the fire. The petitioners maintain that, rather than obtain the appearance
of Mr. Morgan, a detective was permitted to give hearsay evidence regarding what
Mr. Morgan said to him. Moreover, the judge directed the jury during his summing
up that they could rely on the detective's statements as circumstantial
evidence. The petitioners claim further that the victim's counsel failed to give
the victim an opportunity to respond to the hearsay evidence. Finally, the
Petitioners argue that a violation of Article 8 of the Convention also
constitutes a violation of Article 5 of the Convention, for reason of the cruel
manner in which the victim was sentenced. Dwight Fletcher (Case
12.126) 119.
The petitioners in Case 12. 126 (Dwight Fletcher) allege violations of
Article 8 because of inadequate legal representation and inadequate time and
facilities in preparing the victim's defense.
The petitioners argue that Mr. Fletcher was not provided with legal
representation during his preliminary hearing, and that he was held in detention
for eighteen months before he was permitted to contact an attorney. The
petitioners also claim that prior to his appeal, the victim was only able to
meet once with his new attorney for approximately 25 minutes in a crowded cell,
which was not conducive for the facilities necessary to prepare for trial.[48] 120.
Additionally, the Petitioners indicate that despite the victim's
requests, his alibi witnesses were not called at trial, and allege that this
constitutes a violation of Article 8(2)(f) of the Convention. They also complain
that the prosecution called a witness at the victim's re-trial who had
previously been found guilty of perjury in Mr. Fletcher's first trial and who
claimed to have identified the victim in a dark football field. The petitioners argue that the victim's attorney did not
challenge the use of such a witness, nor did the attorney enter evidence
concerning the prosecution's use of
a perjured witness. Anthony Rose (Case
12.146) 121.
In Case 12.146 (Anthony Rose), the Petitioners allege that the victim's
rights under Articles 8(2)(c) and 8(2)(e) of the Convention have been violated,
because of inadequate legal representation and inadequate time and means for
preparing the victim's defense. The petitioners maintain that death penalty
cases require a higher standard with regard to the time and means necessary for
the preparation of trial. In this regard, the Petitioners claim that the victim
only saw his attorney in court during trial, and that the victim's attorney
blamed their infrequent contact on the limited means provided by the legal aid
system in Jamaica. The petitioners argue that this standard of legal assistance
is not in accordance with international human rights jurisprudence, or with the
statements of the United Nation's Special Rapporteur on extrajudicial, summary
and arbitrary executions, namely that at all stages defendants charged with
capital offences must benefit from "an adequate provision for State funded
legal aid by competent defense lawyers."[49]
e. Articles
2, 8, 24 and 25 - unavailability of legal aid for Constitutional Motions 122.
The petitioners in the five cases current before the Commission argue
that the State does not provide legal aid for Constitutional Motions, and that
this results in a denial of access to court and a denial of effective remedies,
in violation of one or more of Articles 2, 8, 24 and 25 of the Convention. 123.
More particularly, the Petitioners recognize that Article 25(1) of the
Constitution of Jamaica provides individuals with the legal right to bring a
Constitutional Motion before the Supreme Court. They argue, however, that there
is no practical opportunity for the victims to pursue a Constitutional Motion
because the proceedings are extremely expensive and beyond the victims' means,
and because no legal aid is available for these motions. Consequently, the Petitioners submit that the State's failure
to provide legal aid for Constitutional Motions denies the victims access to the
courts and hence to an effective remedy for violations of the Constitution or of
the American Convention. The petitioners also submit in this regard that the
principle of effective access to courts is even more indispensable in capital
cases, where a defendant's life and liberty are at stake. 124.
In support of their arguments, the Petitioners cite decisions of other
international human rights tribunals, such as the decision of the European Court
of Human Rights in Airey v. Ireland,[50]
for the proposition that individuals must be guaranteed effective access to
courts in fact as well as in law. The petitioners claim that the unavailability
of legal aid in Jamaica in fact deprives the victims of effective access to the
courts, and that the State is responsible for violations of Article 25 of the
Convention. 125.
Finally, the Petitioners argue that the fact that some attorneys take pro
bono cases does not relieve Jamaica of its obligation to provide legal aid
with regard to Constitutional Motions. They also claim in this regard that very
few attorneys in Jamaica accept requests to take Constitutional Motions pro
bono 126.
In response to the State's contention that Constitutional Motions are not
criminal proceedings to which the right to legal counsel under Article 8(2)(e)
of the Convention applies, the Petitioners maintain that a Constitutional Motion
is a criminal proceeding. They argue that a Constitutional Motion in the context
of the victims' cases arises because of an earlier criminal proceeding and that
it could influence and change a ruling on a previous criminal proceeding, for
example by quashing a capital sentence. As a consequence, the Petitioners argue
that Constitutional Motions should be considered criminal proceedings for the
purposes of Article 8(2)(e) of the Convention. B. Positions of
the State 1.
Position of the State on admissibility 127.
The State provided observations in each of the cases that are the subject
of this Report. The State made reference to the issue of admissibility in only
three of the five cases, Case 12.107 (Carl Baker), 12.126 (Dwight Fletcher) and
12.146 (Anthony Rose). In Case
12.107 (Carl Baker), the State contended that domestic remedies were exhausted
when the victim's petition to the Judicial Committee of the Privy Council was
dismissed.[51]
In Case 12.126 (Dwight Fletcher), the State declared that it waived the
issue of admissibility, and proceeded to respond to the merits of the petition,
in order to expedite the examination of the allegations.[52] In Case
12.146 (Anthony Rose), the State declared that it deferred its right to address
the admissibility of the victim's petition, but in the interest of time
proceeded to address the merits of the victim's petition.[53]
Since its original submissions to the Commission in Case 12.146 (Anthony
Rose), the State has not revisited the issue of admissibility. 128.
In the two remaining cases, Case Nos. 12.023 (Desmond McKenzie) and
12.044 (Andrew Downer and Alphonso Tracey), the State has remained silent on the
issue of admissibility. 2. Position of the
State on the merits a.
Articles 4, 5, 8, 24 and 25 - mandatory nature of the death penalty and
the prerogative of mercy 129.
The State does not deny that the death penalty in Jamaica is mandatory
for capital and multiple non-capital murders. Nonetheless, the State argues that
the application of the mandatory death penalty in cases of capital murder is not
arbitrary because there are established categories of capital murder, and there
is nothing arbitrary about the differentiation between capital and non-capital
murder. The State claims that the passage of the Offences Against the Persons (Amendment) Act 1992 retained capital
punishment for certain offences within the State's sovereign rights. The State
also indicates that Article 4 of the Convention does not prohibit the death
penalty, it merely imposes limitations on its implementation. The State
therefore argues that the mandatory death penalty does not violate the American
Convention because it applies to serious offences and the State can demand a
high penalty in such cases. The State also argues that the opportunity to offer
a plea in mitigation is provided for through the Prerogative of Mercy.
130.
In addition, the State cites section 17(2) of the Constitution of
Jamaica, which preserves punishments that pre-date independence as lawful and
shields them from constitutional challenge as constituting torture or inhuman or
degrading treatment or punishment. Section 17 of the Constitution of Jamaica
states: 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 section to the extent that
the law in question authorizes the infliction of any description of punishment
which was lawful in Jamaica immediately before the appointed day. 131.
In addition to the above provisions of the Jamaican Constitution, the
State relies upon several decisions of the Judicial Committee of the Privy
Council, including Pratt v. Attorney
General for Jamaica, in which, according to the State, it was held that
hanging by law pre-dates Jamaican Independence and therefore cannot be
considered an inhumane form of punishment. Furthermore, the State submits that
the existence of Article 6 of International Covenant on Civil and Political
Rights is evidence that the international community does not regard the death
penalty as inhuman or degrading punishment.
Consequently, as the victim was duly convicted of capital murder and
sentenced to death, the State denies that the mandatory nature of the death
penalty is arbitrary, cruel, inhuman, degrading and a breach of the victim's
right not to be arbitrarily deprived of his life.
132.
In addition, in relation to Article 4(6) of the Convention, the State
does not accept the Petitioners' argument that the victims' rights have been
violated because of the courts' failure to accept and review mitigating
circumstances with regard to sentencing at the trial stage. The State maintains
that there is a procedure for offering pleas in mitigation, namely the
Prerogative of Mercy. Additionally,
the State denies the Petitioners' allegation that there is no criteria governing
the executive's discretion with regard to the process of mercy. The State claims
that clear criteria in the exercise of the Prerogative of Mercy is prescribed
under Sections 90 and 91 of the Jamaican Constitution, which state:
90(1)
The Governor General may, in Her Majesty's name and on Her Majesty's behalf (a)
grant to any person convicted of any offence against the law of Jamaica a
pardon, either free or subject to lawful conditions; (b) grant to any person a
respite, either indefinite or for a specified period, from the execution of any
punishment imposed on that person for such an offence; (c) substitute a less
severe form of punishment for that imposed on any person for such an offence; or
(d) remit the whole or part of any punishment imposed on any person for such an
offence or any penalty or forfeiture otherwise due to the Crown on account of
such an offence. (2) In the
exercise of the powers conferred on him by this section the Governor General
shall act on the recommendation of the Privy Council. 91(1)
Where any person has been sentenced to death for an offence against the law of
Jamaica, the Governor General shall cause a written report of the case from the
trial judge, together with such other information derived from the record of the
case or elsewhere as the Governor General may require to be forwarded to the
Privy Council so that the Privy Council may advise him in accordance with the
provisions of section 90 of this Constitution. (2) The power of requiring information conferred on the
Governor General by subsection (1) of this section shall be exercised by him on
the recommendation of the Privy Council or, in any case in which in his judgment
the matter is too urgent to admit such recommendation being obtained by the time
within which it may be necessary for him to act, in his discretion. The
State argues that the Prerogative of Mercy is not subject to procedural
guarantees, because it is outside the judicial process. In support of this
argument, the State cites the decision of the Judicial Committee of the Privy
Council in de Freitas v. Benny,[54]
in which it was held that "[m]ercy is not the subject of legal rights.
It begins where legal rights end." 133.
The State indicates that the Prerogative of Mercy is an additional remedy
to those available through the legal process, in that it constitutes an exercise
of executive discretion, and an extrajudicial remedy not subject to principles
of natural justice. The State also contends that the Prerogative of Mercy in
Jamaica is not inconsistent with Article 4(6) of the Convention. The State
argues that its only duty is to make the process available as an opportunity to
re-examine the victim's case, and therefore maintains that it does not matter
that it is not a legal remedy. Nevertheless,
the State denies that the process is arbitrary or unavailable. It says that
every offender can apply for mercy an unlimited amount of times, and that
written representations are frequently submitted by accused persons, their
attorneys and human rights organizations. The State also indicates that matters
such as the victim's relevant physical and mental health are considered by the
Jamaican Privy Council, and that it examines all aspects of an offender's case
and evidence based on testimony given before a court of law, by way of the trial
judge's report on the offender's case. 134.
At the same time, in its response to Case 12.146 (Anthony Rose), the
State confirms that the Prerogative of Mercy is a purely discretionary act. The
State recognizes in this regard that the victim has no legal right to be
notified of the date upon which the Jamaican Privy Council is to consider his
case, no right to an oral hearing before the Privy Council or to be supplied
with any material placed before the Privy Council at his hearing, and no right
to submit representations in advance of the hearings. However, the State denies
that the right to apply for mercy is illusory and ineffective, as nothing in
fact precludes offenders from placing information before the Privy Council.
135.
With respect to Case 12.107 (Carl Baker), the State specifically denies
the Petitioners' contention that the Prerogative of Mercy is exercised only with
respect to women, but rather indicates that men may also claim the benefit of
mercy. 136.
Finally, in relation to the violations of Article 4(3) of the Convention
alleged by the Petitioners, the State argues that there has been no
reintroduction of the death penalty in Jamaica. The State claims that a
moratorium on executions was put in place while it was considering whether to
abolish the death penalty, and that the vote in the Jamaican Parliament was
decidedly in favor of retaining the death penalty. The State therefore contends
that the death penalty was never abolished in Jamaica. b. Articles 5, 7,
and 8 - delay in the victims' criminal proceedings 137.
In relation to the cases in which the victims allege the delays in their
criminal proceedings violate one or more of Articles 5, 7 and 8 of the
Convention, the State argues cumulatively that such delays are not sufficient to
result in commutation of the victims' sentences.
Additionally, the State indicates that according to the decision of the
Judicial Committee of the Privy Council in
Pratt v. Attorney General for Jamaica, prolonged judicial proceedings per
se do not constitute cruel and inhuman treatment.
Thus, while the State indicates that it will investigate allegations of
delay in the victims' criminal proceedings, it argues that even if a delay is
determined by the State or by the Commission to have been unreasonable, it would
not be sufficient to result in commutation of the death sentence. 138.
The State has also provided further submissions with respect to the
allegations and circumstances of particular petitioners: a. With respect to Case 12.023 (Desmond McKenzie), concerning the failure to
bring the victim promptly before a judge subsequent to his arrest, the State
denies a breach of the Convention. The
State claims there is no violation since the victim was "freed on
bail" at least 5 days after his arrest so his wife could take him to the
May Pen Hospital. Therefore, the State maintains that there is no breach of the
Convention, even if the victim first appeared before a magistrate three weeks
after his arrest. The State notes
the Petitioners' assertion that the victim was continuously in police detention
during his visit to the hospital, but argues the delay was not detrimental to
him since he was able to receive medical attention. The State suggests that this
illustrates that there was never a deprivation of the victim's liberty. b. With respect to Case 12.044 (Andrew Downer and Alphonso Tracey), the
State initially denied that the victims were brought before a judge one month
after their respective arrests. It recognized, however, that the 3 ½ year delay
to bring victims to trial was "longer than desirable", and indicated
that it would investigate the matter and inform the Commission of its findings.
After investigating the matter, the State confirmed that Andrew Downer and
Alphonso Tracey were arrested on May 4, 1991, and April 30, 1991, respectively,
and that they first appeared before a judge on June 17, 1991, just over one
month after their arrests. The State also confirmed that a preliminary inquiry
was held in the victims' case between September 25, 1991, and January 6, 1992,
and that, after appearing in Court on a "number of occasions", the
victims' trial began on December 15, 1994. Based upon its investigation, the
State suggests that officials were not idle during the pre-trial period.
In any event, the State emphasized that even if the delay is found to be
unreasonable, it would not be sufficient reason to commute the victims' death
sentences. c. With respect to Case 12.107 (Carl Baker), in which the Petitioners argue
that the delay in the victim's criminal proceedings contravened Article 8(1) of
the Convention, the State emphasizes that the delay of one year and three months
from the time the victim was arrested to his trial date did not violate the
Convention. The State argues that the victim's right to a hearing within a
reasonable time was not violated, because the delay resulted from the need to
conduct a preliminary inquiry and to fully investigate whether there was a prima
facie case to justify trial. Subsequent
to the Petitioners' request for a more detailed response concerning the
preliminary inquiry, the State submitted to the Commission that it had nothing
further to add concerning the allegation. Additionally,
the State maintains that a delay of one year and three months between the
victim's date of conviction and the hearing of his appeal is not a breach of the
Convention, indicating that a reasonable period must be allowed for the
exhaustion of domestic remedies, including appeals.
Furthermore, the State indicates that the victim's period of detention on
death row does not rise to the level of the 5-year period mentioned in the Pratt v. Attorney General for Jamaica decision, and thus should not
result in commutation. d. With respect to Case 12.126 (Dwight Fletcher), the State emphasizes that
even if there was an unreasonable delay in the victim's case, it is not
sufficient to commute his death sentence. Nevertheless, the State indicated that
it would investigate the allegation that the victim was detained for three weeks
prior to being brought before a judge. The State also denies that the two and a
half years spent by the victim on death row constitutes cruel or unusual
treatment. It notes in this regard that the victim's time on death row falls far
below, for example, the delay of four years and ten months that the Judicial
Committee of the Privy Council found constituted cruel and unusual treatment in
the case Guerra v. Baptiste and Others.[55]
continued... [ Table of Contents | Previous | Next ] [30] Mr. McKenzie was arrested October 19, 1993. He was originally tried from April 22, 1995 to May 4, 1995, but the jury was unable to reach a majority decision. He was re-tried commencing on March 13, 1996, and convicted on April 2, 1996. [31] U.N.H.R.C., Paul Kelly v. Jamaica, Communication Nº 253/1987 (8 April 1991). [32] U.N.H.R.C., Peter Grant v. Jamaica, Communication Nº 597/1994, U.N. Doc. CCPR/C/56/D/597/194(1996). [33] Paul Kelly v. Jamaica, supra. [34] Pratt & Morgan v. Attorney General for Jamaica [1944] 2 AC 1 (J.C.P.C.). [35] I/A Comm. H.R., Gimenez v. Argentina, Case 11.2454, Annual Report 1995, at 33. [36] Mr. Downer claims to have requested medical attention for his gun wound on June 12, 1996, June 13, 1996, July 12, 1996, July 25, 1996, August 5, 1996 and August 6, 1996. Mr. Downer saw a doctor on November 25, 1996. [37]
In support of their position, the Petitioners cite the decisions of the United
Nations Human Rights Committee in the cases Antonaccio
v. Uruguay, Doc. A/37/40, and Ambrosini
v. Uruguay, Doc. A/37/40, in which the Committee held that the detention
and questioning of persons who are obviously in need of treatment violates
Articles 7 and 10(1) of the International Covenant on Civil and Political
Rights. [38] Constitution of Jamaica, supra, Section 17(1) (providing that "[n]o person shall be subjected to torture or to inhuman or degrading punishment or other treatment."); Section 17(2) (providing that "[n]othing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question authorizes the infliction of any description of punishment which was lawful in Jamaica immediately before the appointed day."). [39] U.N.H.R.C., Ng v. Canada, Communication Nº 469/1991, U.N.Doc. CCPR/C/49/D/469/1991 (1994). [40] The petitioners additionally allege violations of Articles 11(a), 11(b), 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 of the United Nations Standard Minimum Rule for the Treatment of Prisoners. [41] U.N.H.R.C., Mukong v. Cameroon, Communication Nº 458/1991, U.N. Doc. CCPR/C/51/D/458/1991 (1994). [42] Greek Case 12 Y.B. 1 (1969) (Eur. Court H.R.) [43] The petitioners cite the United Nations Human Rights Committee's decision in the case Paul Kelly v. Jamaica, Communication Nº 253/1987, in which the Committee stated that "it is axiomatic that legal assistance should be made available to a prisoner under sentence of death. This applies to all the stages of the judicial proceedings." The petitioners also refer to the Privy Council's decision in the case Dunkley and Robinson v. The Queen [1995] AC 419, in which the Privy Council held that "where a defendant faces a capital charge and is left unrepresented through no fault of his own the interests of justice require that in all but the most exceptional cases there be a reasonable adjournment to enable him to try and secure alternative representation." [44] Frank Robinson v. R. [1985] 1 A.C. 957. [45] The petitioners cite General Comment 6(16) of the United Nations Human Rights Committee, which states that "the procedural guarantees therein [Article 14 of the ICCPR] prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence, and the right to review by a higher tribunal." [46] Paul Kelly v. Jamaica, supra. [47] U.N.H.R.C., Aston v. Jamaica, Communication Nº 283/1988. [48] In support of their position, the Petitioners also cite the U.N. Human Rights Committee decision in the case Aston Little v. Jamaica, supra. [49] Report of the Special Rapporteur on ExtraJudicial, Summary or Arbitrary Executions, UN. Doc. E/CN.4/ at para. 547. [50] Airey v. Ireland [1979] 2 E.H.R.R. 305. [51] In Case 12.107 (Carl Baker), the State's response to the petition dated March 18, 1999 stated that, "[o]n the issue of admissibility of the communication, the Ministry deems all domestic remedies exhausted when the author's petition to the Privy Council was dismissed on January 20, 1999." [52] In Case 12.126 (Dwight Fletcher), the State's response to the petition dated May 3, 1999 stated that, "[i]n order to expedite the examination of these allegations, the Ministry will waive the issue of admissibility and proceed to respond to the merits of the petition." [53] In Case 12.146 (Anthony Rose), the State's response to the petition dated June 10, 1999, stated that "[t]he Ministry at this time defers its right to address the admissibility of the applicant's petition, however in the interest of time it will address the merits of the applicant's petition." [54] de Freitas v. Benny [1976] 2 A.C. 239. [55] In its observations in Case 12.126 (Dwight Fletcher), the State claims in respect of the delay in the Guerra case that "[t]his was 4 years and 10 months following his conviction and there was a delay in the case because notes of the evidence at his trial were not available for appeal until over 4 years. In Mr. Fletcher's case the post-trial delay has been 2 and a half years, which the State does not consider cruel and unusual."
|