... 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   

Case No.

Victim(s)

Delay between Arrest and Conviction

Delay between Conviction and Judgment on Final Appeal

Total delay between Arrest and Judgment on Final Appeal

12.023

Desmond McKenzie

1 yr., 6 mos. (first trial) 10 mos. (Re-trial) [30]

2 yrs. 2 mos.

4 yrs. 8 mos.

12.044

Andrew Downer

Alphonso Tracey

3 yrs., 8 mos.

3 yrs. 7 mos.

7 yrs. 3 mos.

12.107

Carl Baker

1 yr., 3 mos.

2 yrs., 2 mos.

3 yrs., 5 mos.

12.126

Dwight Fletcher

2 yrs., 9 mos.

2 yrs. 5 mos.

 yrs. 2 mos.

 

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...

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[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."