... continued

c.             Article 4 and 5 - conditions of detention and method of execution  

139.        In relation to the cases in which the victims allege detention conditions as violating one or more of Articles 4 and 5 of the Convention, the State argues cumulatively that poor detention conditions alone will not render the victims' execution unlawful.  The State relies in this regard on the decision of the Judicial Committee of the Privy Council in the case Thomas and Hilaire v. The Attorney General of Trinidad and Tobago and others.[56] According to the State, the Privy Council held in Thomas and Hilaire that conditions of detention similar to those alleged by the victims did not constitute cruel and unusual treatment or punishment, and that even if they did, commutation of the sentence would not be the appropriate remedy, as the treatment did not involve such egregious conduct as keeping an individual in solitary confinement, shackling, flogging or torture.  

140.        Additionally, the State indicates that it would not adopt the generalized positions concerning detention conditions stated in reports from international and domestic bodies relied upon by the Petitioners.  The State argues that these reports are based on conditions from 1983 to 1990, and alleges that there have been "marked improvements" to the prison conditions in Jamaica since those reports were prepared.  The State adds that it would only consider and investigate individual complaints from the victims containing specific information pertaining to their personal experience in detention.  

141.        The State has also provided further submissions with respect to the allegations and circumstances of the particular victims:          

a.       With respect to Case 12.023 (Desmond McKenzie), the State denies the victim was detained with convicted persons prior to his conviction, contrary to Article 5(4) of the Convention. The State claims none of the lock ups in which the victim was detained hold convicted persons. The State also indicates that St. Catherine's District Prison holds convicted persons, but they are held in separate sections from those who are on remand. Further, the State claims the victim was not in prison on February 23, 1995, and therefore he could not have been subjected to abuse by prison warders on that date. The State indicated it would investigate the victim's allegations of ill treatment for which particulars are provided, including those alleged to have occurred on March 5, 1997;

b.       With respect to Case 12.044 (Andrew Downer and Alphonso Tracey), the State indicates that Andrew Downer was arrested on April 30, 1991, and taken to the hospital on May 1, 1991. The State also claims there is no evidence that the victim's medical condition was so dire at the time of his arrest that he could not have been processed at the police station before attending the hospital, or that he was released contrary to medical advice. The State indicates that the victim's allegations in respect of his medical care should not be taken to show a deliberate and consistent attempt to deny him medical care, but rather that they reflect "the difficulties resulting from lack of resources, which affect the prison system. The Ministry does not offer this as an excuse, but as a statement of fact, however unfortunate." The State also notes that the victim saw three doctors, had X-rays taken and was given medication.  Finally, the State denies that the victims' conditions of detention are such that their executions are rendered unlawful

c.       With respect to Case 12.107 (Carl Baker), the State initially denied the victim's allegations of ill-treatment.  Subsequently, in its September 15, 1999 submission to the Commission, the State indicated it would investigate the victim's detailed allegations of ill treatment. It emphasized, however, that even if the allegations are found to be true, they would not result in commutation of the victim's death sentence.  
 

By communication dated November 19, 1999, the State provided the Commission with the results of its investigation into the allegations contained in the Petitioners' supplemental submission of July 14, 1999. In its communication, the State contends, inter alia, that the prison records do not indicate a warder named "Oniss" being employed on March 16, 1999. The records do, however, indicate that a warder named Mr. Winston Holness was employed at the prison at that time, and Mr. Holness has denied threatening the victim on March 16, 1999 or threatening or antagonizing him on a regular basis. The State indicates further that Warder Willam Burke has denied beating Mr. Baker on April 12, 1999 and that other members of the prison staff responsible for guarding the area where the victim was held on that day have denied having any knowledge of the beating. The State also claims that no search involving warders, police and military personnel was carried out at the prison on April 9, 1999, and that the medical journal and the victim's medical records do not reflect the victim's allegations of illness for the period April 6-11, 1999 or any referrals or medical appointments outstanding. Finally, the State alleges that, in the absence of specific information as to the identity of the warders accused of issuing threats to the victim because he made complaints, and in the absence of any report of the victim being threatened, the State has been unable to investigate these allegations.  
 

d.       With respect to Case 12.126 (Dwight Fletcher), the State indicates that it would investigate the victim's allegations of ill-treatment and poor prison conditions, with additional information from the Petitioners, such as names, dates, and locations. At the same time, the State reiterates its position that poor prison conditions are not sufficient to result in commutation of a death sentence, and suggests that only complaints of beatings could be grounds for such relief.  
 

e.       With respect to Case 12.146 (Anthony Rose), the State denies that St. Catherine's District Prison has no or inadequate medical services.  The State reports that St. Catherine's District Prison has a Medical Center staffed with two registered medical practitioners, a general practitioner and psychiatrist, dentist, nurse, social worker and medical orderlies. The State claims that, when a prisoner makes a complaint of a medical nature, arrangements are made with a medical orderly for that prisoner to be taken to see the doctor at the very earliest opportunity.  If the complaint is of a serious nature and a doctor is not on duty at the time or cannot be located, the prisoner is immediately dispatched to the Spanish Town General Hospital, which is a few miles from the prison.

d.              Articles 4 and 8 - Right to a fair trial  

142.           In respect of those cases in which the Petitioners allege violations of Article 8 of the Convention, based upon the adequacy of their legal representation and preparation and the manner in which their trials were conducted, the State raises several arguments.  

143.        With respect to the allegations in Case 12.023 (Desmond McKenzie) concerning the judge's conduct during the victim's trial, the State indicated in its initial observations on the Petitioners' petition that the Ministry "concedes that the judge's instructions to the jury in the applicant's trial were biased." The State nevertheless argued that this was a matter properly left to the appellate courts of Jamaica, that the issue was dealt with extensively by the Jamaican Court of Appeal, and therefore that there was no compelling reason for the Commission to review the matter.  

144.        In a letter to the Commission dated August 28, 1998, however, the State purported to amend its original response to the petition, declaring that it erred when it said that the Ministry "concedes" that the judge's instructions to the jury were biased, but rather intended to argue that the State did not concede the bias issue. Furthermore, in a letter dated November 2, 1998, the State reiterated that the concession was an error, and attached the memorandum of instructions dated July 29, 1998 from the Jamaican Attorney General's Department to its Embassy in Washington regarding the State's response in Case 12.023, which makes no reference to a "concession".  The State indicates that its officials in Washington erred in editing the Ministry's memorandum, and therefore that it was an error to state there was a concession when none had been made.   

145.        Additionally, in relation to Mr. McKenzie's allegations concerning the violation of Article 8(2)(d) of the Convention, the State admits that it was unfortunate that the judge denied an adjournment until the victim's counsel could appear. However, the State denies that this incident rises to the level of a violation of the Convention, since the victim's counsel returned that afternoon. The State cites the Privy Council's decision in the case Robinson v. R.[57] for the proposition that the right to counsel is not an absolute right, in that, for example, adjournments do not have to be repeatedly granted in order to ensure protection of the right.  

146.        With respect to the allegations in Case 12.044 (Andrew Downer and Alphonso Tracey) concerning the adequacy of the manner in which their trial was conducted, the State claims that the victims' objection to the amended indictment was overruled at trial. The State argues that issues concerning the notification of charges and amendments to indictments should be left to the trial and appellate courts to examine. It also notes that these issues were in fact examined by the Court of Appeal and by the Judicial Committee of the Privy Council in the context of the victims' cases, and therefore that no denial of justice has been shown.  

147.        In relation to Case 12.107 (Carl Baker), the State indicates that the judge amended the defect in the victim's sentence in accordance with his powers pursuant to section 20 of the Criminal Justice (Administration) Act of 1960.  According to this Act, it is lawful for every judge at all times to amend all defects and errors of any proceedings in a criminal case. The State also indicates that the victim did not raise an objection when the judge amended his sentence.   

148.        Additionally, the State argues there was no act or omission on the State's part to prevent Mr. Baker from seeing his attorney. The State maintains that the preparation and handling of cases are matters for the attorney and his client, and that the State will not partake or interfere in these matters. The State argues that allegations by a victim that he had inadequate time with his attorney to prepare for trial does not engage the responsibility of the State. Finally, the State argues that it is not under an obligation to secure witnesses for trial, and therefore denies any violation of the Convention in this regard.  

149.        With respect to the allegations in Case 12.126 (Dwight Fletcher) in relation to the adequacy of the victim's legal representation, the State argues that it cannot be held accountable for alleged errors committed by victim's counsel. In support of its position, the State cites the decision of the United Nations Human Rights Committee in the case D. Taylor v. Jamaica,[58] in which the Committee expressed the opinion that "the State party cannot be held accountable for any alleged deficiencies in the defence of the accused or alleged errors committed by the defence lawyer, unless it was manifest to the trial judge that the lawyer's behavior was incompatible with the interest of justice." The State indicated, however, that it would investigate the Petitioner's allegations concerning the failure to provide the victim with legal representation at his preliminary hearing, the denial of contact with his attorney for eighteen months following his arrest, and the allegation that Mr. Fletcher's counsel failed to advance evidence and consult with the victim on appeal. The State also points out that section 3 of the Jamaica's Poor Prisoners' Defence Act obliges a Resident Magistrate or a Judge of the Supreme Court to grant an indigent accused a legal aid certificate, which entitles the accused to free legal aid in preparing and conducting his defense.  

150.        The State did not provide any observations in respect of the violations of Article 8 of the Convention, alleged in Case 12.146 (Anthony Rose) relating to the victim's inadequate legal representation and inadequate time and facilities to prepare the victim's defense.  

e.       Articles 2, 8, 24 and 25 - unavailability of legal aid for Constitutional Motions 

151.        In four of the five cases before the Commission, Case Nos. 12.023  (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107 (Carl Baker) and 12.126 (Dwight Fletcher), the State claims that it is not required to provide legal aid for Constitutional Motions because Article 8(2)(e) of the Convention only requires a State Party to provide legal aid in criminal proceedings, indicating that a Constitutional Motion is not a criminal proceeding.  Moreover, according to the State, a lack of legal aid regarding Constitutional Motions is not an absolute bar to presenting Constitutional Motions in Jamaica. The State cites cases such as Pratt v. Attorney General for Jamaica as examples of situations in which victims were able to pursue Constitutional Motions without legal aid. Consequently, the State denies any violation of the Convention relating to the provision of legal aid for Constitutional Motions. In Case 12.146 (Anthony Rose), the State did not respond to the Petitioners' allegations concerning the lack of legal aid for Constitutional Motions in violation of Articles 24 and 25 of the Convention.          

IV.          ANALYSIS  

A.        Competence of the Commission  

152.        The Commission has jurisdiction ratione materiae in the five cases in this Report, as the State deposited its instrument of accession to the American Convention on August 7, 1978,[59] and the Petitioners allege that the State has violated Articles 1, 2, 4, 5, 7, 8, 12, 24 and 25 of the Convention. The Commission also has jurisdiction rationae temporis, as the Petitioners' complaints pertain to acts or omissions that transpired after the State's accession to the Convention. Finally, the Commission has jurisdiction rationae personae, as the victims are natural persons and the Petitioners were authorized under Article 44 of the Convention to lodge petitions on behalf of the victims. The Commission is therefore fully competent to examine the five cases in this Report.

  B.         Admissibility  

153.        The Commission has considered  the admissibility of the five cases that are the subject of this Report, namely Case Nos. 12.023  (Desmond McKenzie), 12.044  (Andrew Downer and Alphonso Tracey), 12.107  (Carl Baker), 12.126  (Dwight Fletcher) and 12.146  (Anthony Rose) pursuant to Articles 46 and 47 of the Convention and makes the following determinations.

          1.          Duplication  

154.        In each of the five cases noted above, the Petitioners have indicated that the victims' cases have not been submitted for examination by any other procedure of international investigation or settlement.  The State has not contested the issue of duplication.  The Commission therefore finds no bar to consideration of these cases under Articles 46 (1)(c) or 46(1)(d) of the Convention.  

2.      Exhaustion of domestic remedies  

155.        Article 46(1)(a) of the Convention specifies that, in order for a case to be admitted, “remedies under domestic law [must] have been pursued and exhausted in accordance with generally accepted principles of international law.” When domestic remedies are unavailable as a matter of fact or law, however, the requirement that they be exhausted may be excused. Article 46(2) of the Convention specifies that this exception to exhaustion applies if: (1) the legislation of the state concerned fails to afford due process for the protection of the right allegedly violated; (2) the party alleging the violation has been denied access to remedies under domestic law or has been prevented from exhausting them; or (3) where there has been unwarranted delay in rendering a final judgment. When a victim alleges that he or she is unable to prove exhaustion as provided for in Article 46(2) of the Convention, Article 37(3) of the Commission’s Regulations provides that the burden shifts to the State to demonstrate that the remedies under domestic law have not been previously exhausted.[60]  

156.           Exhaustion of domestic remedies also need not be demonstrated by a victim in the event that the State against which the complaint is lodged waives this requirement. In this regard, the Inter-American Court of Human Rights has held that the rule which requires the prior exhaustion of domestic remedies is designed for the benefit of the State, because the rule seeks to excuse the State from having to respond to charges before an international body for acts imputed to it before it has had an opportunity to remedy them by internal means. According to the Court, the requirement is thus considered a means of defense and, as such, waivable, even tacitly. Further, a waiver, once effected, is irrevocable.[61]  

157.           As noted in Part III.B.1 of this Report, the State did not provide observations in respect of admissibility in two of the five cases before the Commission, Case 12.023 (Desmond McKenzie) and 12.044 (Andrew Downer and Alphonso Tracey). In addition, in Case 12.107 (Carl Baker) the State stated that domestic remedies were exhausted when the victims' petition to the Judicial Committee of the Privy Council was dismissed, and in Case 12.126 (Dwight Fletcher), the State expressly indicated that it waived the issue of admissibility. Finally, in Case 12.146 (Anthony Rose), the State indicated that it would "defer" its right to address the issue of admissibility, and proceeded to address the merits of the petition "in the interest of time". The State has subsequently made no submissions respecting admissibility in this case.  

158.        After considering the issue of admissibility in the context of these cases, the Commission finds that the State explicitly or tacitly waived any challenge with regard to the exhaustion of remedies that could potentially have been invoked by the Petitioners in domestic proceedings in all five of these cases. The Commission therefore does not consider Case Nos. 12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107 (Carl Baker), 12.126 (Dwight Fletcher) and 12.146 (Anthony Rose) to be inadmissible by reason of Article 46(1)(a) of the Convention.  

3.          Timeliness of the petitions  

159.        In accordance with Article 46(1)(6) of the Covention, petitions must be presented in a timely manner, namely within a period of six months from the date on which the complaining party was notified of the final judgment at the domestic level.  

160.        As Table 5 below indicates, based upon the records before the Commission, the petitions in all five of the cases that are the subject of this Report were lodged with the Commission within 6 months from the date on which the final judgments on the victims' appeals from their criminal convictions were rendered. The State has not contested the issue of timeliness.

  Table 5 

161.           Accordingly, the Commission finds no bar to consideration of these five cases by reason of Article 46(1)(b) of the Convention.  

          4.          Colorable claim  

162.        Article 47(b) and (c) of the Convention require, respectively, a petition to be declared inadmissible, if it does not state facts that tend to establish a violation of the rights guaranteed by the Convention, or if the statements of the Petitioner or the State indicate that the petition is manifestly groundless or out of order.  

163.        The petitioners in the five cases have alleged that the State has violated the victims' rights under one or more of Articles 1, 4, 5, 7, 8, 24 and 25 of the Convention as set out in paragraph 1 and particularized in Part III.A of this Report. In addition, the Petitioners have provided factual allegations, described in Part III.A.1 of this Report, that tend to establish that these alleged violations may be well-founded.  

164.        In Case 12.107 (Carl Baker), the Petitioners have also included Articles 12(1) and 12(2) of the Convention among the provisions alleged to have been violated in respect of the victim in that case. However, the Petitioners have not provided any submissions or evidence respecting the legal or factual foundation for these alleged violations. Consequently, the Commission finds the petition in Case 12.107 (Carl Baker) to be inadmissible pursuant to Article 47(b) of the Convention insofar as the Petitioners allege violations of Article 12(1) and 12(2) of the Convention.

165.        The Commission therefore finds, in respect of all five cases, and without prejudicing the merits of the matter, that the Petitioners have presented colorable claims of violations of the victims' rights under the Convention for the purposes of Articles 47(b) and 47(c) of the Convention, with the exception of the violations of Articles 12(1) and 12(2) of the Convention alleged in Case 12.107 (Carl Baker).  

          5.          Conclusions on admissibility  

166.        In accordance with the foregoing analysis of the requirements of Articles 46 and 47 of the Convention and the applicable provisions of the Commission's Regulations, the Commission decides to declare as admissible the claims presented on behalf of the victims in four cases that are the subject of this Report: 12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.126 (Dwight Fletcher) and 12.146 (Anthony Rose).  

167.        With respect to Case 12.107 (Carl Baker), the Commission decides to declare as admissible the claims presented on behalf of the victim, with the exception of the violations of Articles 12(1) and 12(2) of the Convention alleged on behalf of the victim, which the Commission declares inadmissible pursuant to Article 47(b) of the Convention.  

          C.          The merits  

168.        As detailed in Part III.A.1 of this Report, the violations alleged by the Petitioners in the cases currently under consideration by the Commission fall into one or more of the following categories:  

a.       violations of Articles 4(1), 4(2), 4(3), 4(6), 5, 8, 24 and 25 of the Convention, relating to the mandatory nature of the death penalty for the crime of capital and multiple non-capital murder in Jamaica and the process for granting amnesty, pardon and commutation of sentence in Jamaica;

b.       violations of Articles 5, 7(4), 7(5), 7(6) and 8 of the Convention, relating to delays in the victims' criminal proceedings;

c.       violations of Articles 5(1), 5(2), 5(4) and 5(6) of the Convention, relating to the complaints' conditions of detention and the method of execution in Jamaica;

d.       violations of Articles 4, 8(1) and 8(2) of the Convention, relating to the adequacy of time and facilities for preparing the victims' legal defenses and of their legal representation, and the manner in which their criminal proceedings were conducted;

e.       violations of Articles 2, 8, 24 and 25 of the Convention, relating to the unavailability of legal aid for Constitutional Motions in Jamaica;

f.        violations of Article 1(1) of the Convention with regard to the above mentioned violations.

1.         Standard of review  

169.        Before addressing the merits of the cases to which this Report relates, the Commission deems it advisable to articulate its standard of review in determining capital punishment cases. In this regard, the Commission is of the view that it must apply a heightened level of scrutiny in such cases. The right to life is widely-recognized as the supreme right of the human being, and the conditio sine qua non to the enjoyment of all other rights.[62] The Commission therefore considers that it has an enhanced obligation to ensure that any deprivation of life perpetrated by a State Party through the death penalty comply strictly with the provisions of the Convention, including in particular the right to life provisions of Article 4, the guarantees of humane treatment under Article 5, and the due process and judicial protections guaranteed under Articles 8 and 25 of the Convention. This "heightened scrutiny" test is consistent with the restrictive approach to the death penalty provisions of human rights treaties advocated by the Commission and other international authorities.[63] In particular, the Inter-American Court has concluded that the American Convention has adopted an approach in respect of the death penalty that is “incremental” in character, whereby, “without going so far as to abolish the death penalty, the Convention imposes restrictions designed to delimit strictly its application and scope, in order to reduce the application of the penalty to bring about its gradual disappearance.”[64] As interpreted by the Inter-American Court, Article 4 of the Convention reflects a tendency to restrict the application of the death penalty. The purpose is "establishing a cut off as far as the penalty is concerned and doing so by means of a progressive and irreversible process applicable to countries which have not decided to abolish the death penalty altogether as well as to those countries which have done so."[65]  

170.        The Commission also notes that this heightened scrutiny approach to death penalty cases is not precluded by the Commission's fourth instance formula. According to this formula, the Commission in principle will not review the judgments issued by the domestic courts acting within their competence and with due judicial guarantees.[66]  The fourth instance formula does not, however, preclude the Commission from considering a case where the Petitioner’s allegations entail a possible violation of any of the rights set forth in the Convention. In the case of Clifton Wright,[67] for example, a Jamaican citizen who alleged that a judicial error resulted in a death sentence against him, the Commission concluded that the conviction and sentence were undermined by the record in the case, but that the appeals process in Jamaica did not permit for a correction of the situation. Consequently, the Commission found that Jamaica had violated the Petitioner’s right to judicial protection under Article 25 of the Convention, and recommended that the Government of Jamaica order an investigation of the matter and afford Mr. Wright a judicial remedy to have the inconsistency corrected. As Mr. Wright had been denied effective domestic judicial protection, he was the victim of a specific human rights violation under the Convention and the fourth instance formula did not apply in the circumstances of his case.  

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

2.          Articles 4, 5, 8, and 24 - the mandatory death penalty  

          a.          The victims have been sentenced to mandatory penalties of death  

172.        The records in the 5 cases that are the subject of this Report indicate that all of the victims have been convicted of capital murder or multiple non-capital murders and sentenced to death.[68] In each case, the sentence was imposed pursuant to legislation in Jamaica that prescribes the death penalty as the only punishment available when a defendant is found guilty of capital murder, or of more than one non-capital murder.  

173.        More particularly, all of the victims have been convicted of capital murder, or of more than one non-capital murder, under Jamaica's Offences Against the Person Act, as amended by the Offences Against the Person (Amendment) Act, 1992 (hereinafter the “Act”).[69]  Article 2(1) of the Act defines capital murder as follows:  

2.(1) Subject to subsection (2), murder committed in the following circumstances is capital murder, that is to say-

a.    the murder of-

i. a member of the security forces acting in the execution of his duties or of a person assisting a member so acting;

ii. a correctional officer acting in the execution of his duties or of a person assisting a correctional officer so acting;

iii. a judicial officer acting in the execution of his duties; or

iv. any person acting in the execution of his duties, being a person who, for the purpose of carrying out those duties, is vested under the provisions of any law in force for the time being with the same powers, authorities and privileges as are given by law to members of the Jamaica Constabulary Force, or the murder of any such member of the security forces, correctional officer, judicial officer or person for any reason directly attributable to the nature of his occupation;[70]

b.    the murder of any person for any reason directly attributable to-

i. the status of that person as a witness or party in a pending or concluded civil cause or matter or in any criminal proceedings; or

ii. the service or past service of that person as a juror in any criminal trial;

c.    the murder of a Justice of the Peace acting in the execution of his judicial functions;

d.    any murder committed by a person in the course or furtherance of-

i. robbery;

ii. burglary or housebreaking;

iii. arson in relation to a dwelling house; or

iv. any sexual offence;

e.    any murder committed pursuant to an arrangement whereby money or anything of value-

i. passes or is intended to pass from one person to another or to a third party at the request or direction of that other person; or

ii. is promised by one  person to another or to a third person at the request or direction of that other person, as consideration for that other person causing or assisting in causing the death of any person or counselling or procuring any person to do any act causing or assisting in causing that death;  

f.    any murder committed by a person in the course or furtherance of an act of terrorism, that is to say, an act involving the use of violence by that person which, by reason of its nature and extent, is calculated to create a state of fear in the public or any section of the public.              

174.        Article 3(1) of the Act in turn prescribes the death penalty as the mandatory punishment for any person convicted of a capital offence as defined under Article 2 the Act:  

2(1) Every person who is convicted of capital murder shall be sentenced to death and upon every such conviction the court shall pronounce sentence of death, and the same may be carried into execution as heretofore has been the practice; and every person so convicted or sentenced pursuant to subsection (1A), shall, after sentence, be confined in some safe place within the prison, apart from all other prisoners.

Where by virtue of this section a person is sentenced to death, the form of the sentence shall be to the effect only that he is to "suffer death in the manner authorized by law."  

175.        In addition, Article 3(1A) of the Act prescribes the death penalty as the mandatory punishment for an individual who has been convicted of more than one non-capital murder, as follows:  

3(1A) Subject to subsection (5) of section 3B, a person who is convicted of non-capital murder shall be sentenced to death if before that conviction he has:

a.     whether before or after the 14^th October, 1992, been convicted in Jamaica of another murder done on a different occasion; or

b.    been convicted of another murder done on the same occasion.  

176.        The Act therefore prescribes death as the mandatory punishment for all capital murders, as well as for individuals who are convicted of more than one non-capital murder. The Act also defines capital murder as murder committed against certain persons by virtue of their employment, position or status, as well as murder committed in the course or furtherance of certain other offences, including robbery, burglary, housebreaking, and arson in relation to a dwelling house. Non-capital murder is defined under the Act as any murder not falling within the definition of capital murder.  

177.        Accordingly, once the jury found each of the victims in the five cases currently before the Commission guilty of capital or multiple non-capital murders, the death penalty was the only available punishment. The transcripts for the trials in several of the cases, for example in Case 12.044 (Andrew Downer and Alphonso Tracey),[71] illustrate and confirm the mandatory nature of the death penalty for the crime of capital or multiple non-capital murders as it has applied to the victims in these cases.  

178.        Crimes of capital murder and multiple non-capital murders in Jamaica can therefore be regarded as being subject to a “mandatory death penalty”, namely a death sentence that the law compels the sentencing authority to impose based solely upon the category of crime for which the defendant is found responsible. Once a defendant is found guilty of the crime of capital murder or of more than one non-capital murder, the death penalty must be imposed. Accordingly, mitigating circumstances cannot be taken into account by a court in sentencing an individual to death.  

179.        This is subject to one exception, however. Article 3(2) of the Act specifically exempts from the death penalty female offenders who are convicted of offenses punishable with death, but who are found by a jury to be pregnant:  

3(2) Where a woman convicted of an offence punishable with death is found in accordance with the provisions of this section to be pregnant, the sentence to be passed on her shall be a sentence of imprisonment with or without hard labour for life instead of sentence of death.

(3) Where a woman convicted of an offence punishable with death alleges that she is pregnant, or where the court before whom a woman is so convicted thinks fit to order, the question whether or not the woman is pregnant shall, before sentence is passed on her, be determined by a jury.

(4) Subject to the provisions of this subsection, the said jury shall be the trial jury, that is to say the jury to whom she was given in charge to be tried for the offence, and the members of the jury need not be re-sworn:  
 

Provided that-

(a) if any member of the trial jury, after the conviction, dies or is discharged by the court as being through illness incapable of continuing to act for any other cause, the inquiry as to whether or not the woman is pregnant shall proceed without him; and

(b) where there is no trial jury, or where a jury have disagreed as to whether the women is or is not pregnant, or have been discharged by the court without giving a verdict on that question, the jury shall be constituted as if to try whether or not she was fit to plead, and shall be sworn in such manner as the court may direct.

(5) The question whether the woman is pregnant or not shall be determined by the jury on such evidence as may be laid before them either on the part of the woman or on the part of the Crown, and the jury shall find that the woman is not pregnant unless it is proved affirmatively to their satisfaction that she is pregnant.

(6) Where in proceedings under this section the jury finds that the woman in question is not pregnant the woman may appeal under the Judicature (Appellate Jurisdiction) Act, to the Court of Appeal and that Court, if satisfied that for any reason the finding should be set aside, shall quash the sentence passed on her and instead thereof pass on her a sentence of imprisonment with or without hard labour for life:

Provided that the operation of the provisions of this subsection shall be deemed to be coincident with the operation of the Judicature (Appellate Jurisdiction) Act.  

180.        Therefore, the penalty for a female offender who is convicted of a capital or multiple non-capital murder, but who is found by a jury to be pregnant, is a sentence of imprisonment with or without hard labour for life instead of a sentence of death.  

181.        As indicated in III.A.3.a of this Report, the Petitioners in all five of the cases before the Commission have alleged that their sentencing to a mandatory death penalty violates one or more of Articles 4(1), 4(2), 4(3), 5(1), 5(2), 5(4), 8(1), 8(2), 24 and 25 of the Convention. In particular, the Petitioners argue that although the death penalty is only imposed in capital or multiple non-capital cases, the distinction between these categories of murders and non-capital murders for which the death penalty is not imposed fails to allow for considerations of the particular circumstances of each offence and offender, including relevant aspects of the character and record of each defendant. As a consequence, the Petitioners claim that mandatory sentencing for capital and multiple non-capital murders violates the Convention. The petitioners also argue that the process for granting amnesty, pardon or commutation of sentence in Jamaica does not provide an adequate opportunity for considering individual circumstances, and in itself is inconsistent with Article 4(6) of the Convention.  

182.        In addressing the Petitioners' allegations, the Commission will first analyze the compatibility of mandatory death sentences for the crimes of capital and multiple non-capital murder with Articles 4, 5 and 8 of the Convention, in light of the terms of those provisions, their underlying principles, and relevant international and domestic precedents. The Commission will then determine whether the State has violated the Convention rights of the victims in the cases within this Report, because of the manner in which those victims have been sentenced to death.  

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

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

184.        Article 4 of the American Convention provides as follows:

      Article 4. Right to Life

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

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

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

4.                  In no case shall capital punishment be inflicted for political offenses or related common crimes.

5.                  Capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age or over 70 years of age; nor shall it be applied to pregnant women.

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

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

186.        Drawing in part upon the past experience of international human rights bodies, several general principles of interpretation can be identified in respect of the death penalty provisions of international human rights instruments in general, and Article 4 of the Convention in particular. First, the supervisory bodies of international human rights instruments have subjected the death penalty provisions of their governing instruments to a rule of restrictive interpretation. In its Advisory Opinion on Restrictions to the Death Penalty under Articles 4(1) and 4(4) of the Convention, for example, the Inter-American Court of Human Rights adopted a restrictive approach to Article 4 of the Convention, finding that “the text of the article as a whole reveals a clear tendency to restrict the scope of this penalty both as far as its imposition and its application are concerned”.[72]  

187.        Other international human rights supervisory bodies have similarly afforded a strict interpretation to the death penalty provisions of human rights treaties. The U.N. Human Rights Committee has held in the context of Article 6 of the ICCPR, which parallels Article 4 of the Convention in many respects,[73] that the law must strictly control and limit the circumstances in which a person may be deprived of his life by the authorities of the state.[74] The Committee has accordingly determined that the imposition of a sentence of death upon conclusion of a trial in which the provisions of the Covenant have not been respected constitutes, if no further appeal against the sentence is possible, a violation of Article 6 of the Covenant. Its recommended remedies in such cases have included release[75] and commutation of the death sentence.[76] The U.N. Special Rapporteur on Extra-Judicial, Summary or Arbitrary Executions has likewise emphasized that proceedings leading to the imposition of capital punishment must conform to the highest standards of independence, competence, objectivity and impartiality of judges and juries and other strict requirements of due process.[77] This Commission has also closely scrutinized the circumstances of death penalty cases to ensure strict compliance with the requirements of due process and judicial protection.[78]   

188.        It is also generally recognized that the death penalty is a form of punishment that differs in substance as well as in degree in comparison with other means of punishment. It is the absolute form of punishment that results in the forfeiture of the most valuable of rights, the right to life and, once implemented, is irrevocable and irreparable. As the United States Supreme Court has observed, “the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.”[79] In the Commission's view, the fact that the death penalty is an exceptional form of punishment must also be considered in interpreting Article 4 of the American Convention.  

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

Thus, three types of limitations can be seen to be applicable to States Parties which have not abolished the death penalty. First, the imposition or application of this sanction is subject to certain procedural requirements whose compliance must be strictly observed and reviewed. Second, the application of the death penalty must be limited to the most serious common crimes not related to political offenses. Finally, certain considerations involving the person of the defendant, which may bar the imposition or application of the death penalty, must be taken into account.[80] [emphasis added]  

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

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

192.        The Commission recognizes that the State, like many other jurisdictions that have retained capital punishment, has created a distinction in its criminal law between capital and non-capital murder. By doing so, the State has limited punishment by the death penalty to more narrowly defined categories of crimes than murder simpliciter. In the Commission's view, this development is consistent with the reductive interpretation of Article 4 of the Convention enunciated by the Inter-American Court, and the Commission commends the State for taking this initiative.  

193.        Notwithstanding the prescribed distinction between capital and non-capital murder, it remains the case in Jamaica that the death penalty is imposed in capital and multiple non-capital cases through mandatory sentencing. In the Commission’s view, three aspects of imposing mandatory death penalties are problematic in the context of a proper interpretation and application of the Convention, even when applied to limited categories of murder. First, it is well-recognized that the crime of murder, even when defined through categories akin to "capital" and "non-capital" murder, can be perpetrated in the context of a wide variety of mitigating and aggravating circumstances, with varying degrees of gravity and culpability.[81] This conclusion is illustrated by, for example, the broad definition of certain categories of capital murder under Jamaican law, such as murder committed by a person in the course of a robbery.[82] It is also illustrated by the circumstances of the cases currently before the Commission, as described in Part  III.A.1 of this Report, which vary in terms of degrees of gravity and culpability as between individual offenses and offenders. Notwithstanding the existence of such disparities, however, the mandatory death penalty seeks to impose capital punishment in all cases of capital and multiple non-capital murders, without distinction, save that provided in respect of pregnant offenders. It subjects an individual who, for example, commits a capital murder in a impulsive act of passion or anger, to the equivalent and exceptional punishment as an individual who executes a capital murder after careful planning and premeditation.  

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

195.        In the Commission’s view, these aspects of mandatory death sentences cannot be reconciled with Article 4 of the Convention in several respects. As noted above, the mandatory death penalty in Jamaica imposes the death penalty on all individuals convicted of capital or multiple non-capital murders, despite the fact that such crimes can be committed with varying degrees of gravity and culpability. Moreover, in the case of Article 2 of Jamaica's Offences Against the Person Act, the law presumes that the murder of certain individuals, for example judges or witnesses, will, by virtue of the person's employment, position or status alone warrant the imposition of the death penalty in all cases. While the status of an individual may be a significant aggravating factor in determining whether the death penalty is an appropriate punishment, Jamaican law permits no account to be taken of the circumstances in which a particular murder may be committed or the degree of culpability of the offender. It also allows for no comparison with murders involving individuals not falling within the prescribed categories, for example children, but which may in their circumstances be considered equally or more grave or culpable. Not only does this practice fail to reflect the exceptional nature of the death penalty as a form of punishment, but, in the view of the Commission, it results in the arbitrary deprivation of life, contrary to Article 4(1) of the Convention.  

196.        More particularly, imposing a mandatory death penalty for all crimes of capital or multiple non-capital murders prohibits a reasoned consideration of each individual case to determine the propriety of the punishment in the circumstances. By its nature, then, this process eliminates a reasoned basis for sentencing a particular individual to death, and fails to allow for rational and proportionate connections between individual offenders, their offenses, and the punishment imposed on them. Implementing the death penalty in this manner therefore results in the arbitrary deprivation of life, within the ordinary meaning of that term and in the context of the object and purpose of Article 4(1) of the Convention.  

197.        Accepted principles of treaty interpretation suggest that sentencing individuals to the death penalty through mandatory sentencing and absent consideration of the individual circumstances of each offender and offense leads to the arbitrary deprivation of life within the meaning of Article 4(1) of the Convention. Article 31(1) of the Vienna Convention on the Law of Treaties provides that a treaty shall be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.” In this regard, the ordinary meaning of the term “arbitrary” connotes an action or decision that is based on random or convenient selection or choice rather than on reason or nature.[83] The U.N. Human Rights Committee suggested a similar meaning for the term "arbitrary" in the context of Article 6(1) of the ICCPR, in the case of Kindler v. Canada.[84] In that case, the victim, a citizen of the United States, was ordered extradited from Canada to face a possible death sentence in the State of Pennsylvania for a murder conviction. The Committee found that Canada did not violate the victim’s right under Article 6(1) of the ICCPR not to be arbitrarily deprived of his life, by extraditing him to the United States without first seeking assurances from the U.S. Government that the death penalty would not be imposed. At the same time, the Committee suggested that the decision not to refuse extradition or to seek assurances must be shown to have been based upon a reasoned consideration of the circumstances of Mr. Kindler’s case:  

While States must be mindful of the possibilities for the protection of life when exercising their discretion in the application of extradition treaties, the Committee does not find that the terms of article 6 of the Covenant necessarily require Canada to refuse to extradite or to seek assurances. The Committee notes that the extradition of Mr. Kindler would have violated Canada’s obligations under article 6 of the Covenant, if the decision to extradite without assurances would have been taken arbitrarily or summarily. The evidence before the Committee reveals, however, that the Minister of Justice reached a decision after hearing argument in favor of seeking assurances. The Committee further takes note of the reasons given by Canada not to seek assurances in Mr. Kindler’s case, in particular, the absence of exceptional circumstances, the availability of due process, and the importance of not providing a safe haven for those accused of or found guilty of murder.[85]  

198.        The Committee has therefore suggested that an arbitrary decision includes one that is taken in the absence of a reasoned consideration of the circumstances of the case in respect of which the decision is made. In this respect, the mandatory death penalty can be regarded as arbitrary within the ordinary meaning of that term and in the context of the Convention as a human rights instrument. In Jamaica, for example, the decision to impose the death penalty on a person for the crime of capital or multiple non-capital murder through a mandatory sentence is not based upon a reasoned consideration of a particular defendant’s case or upon objective standards that guide courts in identifying circumstances in which the death penalty may or may not be an appropriate punishment. Rather, the penalty flows automatically once the elements of the offenses of capital or multiple non-capital murders have been established. The death penalty is also imposed regardless of the relative degree of gravity of the offense or culpability of the offender.  

199.        The mandatory death penalty cannot be reconciled with Article 4 of the Convention in another significant respect. As noted previously, the Inter-American Court has emphasized several restrictions upon the implementation of the death penalty that flow directly from the terms of Article 4 of the Convention. These include considerations relating to the nature of a particular offense, for example whether it can be considered a political or related common offense, as well as to factors concerning the circumstances of an individual offender, for example the offender's age at the time he or she committed the crime for which the death penalty may be imposed. In this manner, Article 4 of the Convention itself presumes that before capital punishment may be lawfully imposed, there must be an opportunity to consider certain of the individual circumstances of an offender or an offense. By its very nature, however, mandatory sentencing imposes the death penalty for all crimes of murder and thereby precludes consideration of these or any other circumstances of a particular offender or offense in sentencing the individual to death. In Jamaica, this is subject to the exception in Articles 3(2) to 3(6) of the Offences Against the Person Act, whereby a mechanism is prescribed for exempting pregnant offenders who are convicted of capital or multiple non-capital murders from sentences of death.

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