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...continued
B. The Merits of the Petition 1.
Standard of Review
54.
In response to the various standards that the parties have
suggested should guide the Commission in determining the issues before
it, the Commission wishes to clarify that it will undertake its review
of the merits of the Petitioners' claims in accordance with the
Commission's heightened scrutiny test. According to this standard of
review, the Commission will subject the parties' allegations to an
enhanced level of scrutiny in order to ensure that any deprivation of
life effected by a State Party pursuant to a death sentence complies
strictly with the provisions of the Convention, including in particular
Articles 4, 5, 7, and 8 of the Convention.[33]
This heightened scrutiny test is, as the Commission has previously
recognized, is consistent with the restrictive approach to the death
penalty provisions of human rights treaties taken by the Commission and
other international authorities.[34] The heightened scrutiny
test is also not precluded by the Commission's fourth instance formula,
according to which the Commission in principle will not review the
judgments issued by the domestic courts acting within their competence
and with due judicial guarantees, unless a petitioner’s allegations
entail a possible violation of any of the rights set forth in the
Convention.[35]
The Commission will therefore apply the heightened scrutiny standard in
determining the complaint in the present case. 2.
Articles 4, 5, and 8 of the Convention Mandatory Nature of the Death Penalty (a)
Mr.
Lallion has been Sentenced to a Mandatory Death Penalty 55. As detailed previously, the Petitioners allege: (i) violations of Articles 4, 5, 8, and 24 of the Convention, relating to the mandatory nature of the death penalty and the procedure for granting amnesty, pardon or commutation of sentence in Grenada; (ii) violations of Article 5 of the Convention pertaining to Mr. Lallion's conditions of detention; and (iii) violations of Article 8 of the Convention, relating to the unavailability of legal aid for Constitutional Motions in Grenada. 56. Mr. Lallion was convicted of murder pursuant to Section 234 of the Criminal Code of Grenada, which provides that "[w]hoever commits murder shall be liable to suffer death and sentenced to death."[36] The crime of murder in Grenada can therefore be regarded as subject to a "mandatory death penalty," namely a death sentence that the law compels the sentencing authority to impose based solely upon the category of crime for which the defendant is found responsible. Once a defendant is found guilty of the crime of murder, the death penalty must be imposed. Accordingly, mitigating circumstances cannot be taken into account by a court in imposing the death sentence and therefore once the jury found Mr. Lallion guilty of capital murder, the death penalty was the only available punishment. The State has not denied the mandatory nature of Mr. Lallion's death sentence. In Mr. Lallion's case, the State indicated in its Reply to the petition by confirming that the sentence of death is mandatory in Grenada and states the following: In Grenada the sentence of death is the mandatory sentence for murder under Section 230 of the Criminal Code Cap. 1 which has not been amended in any respect material to the issue under consideration since its enactment. The manner of execution of sentence authorized by law is by hanging and the passing of the sentence also provides lawful authority for the detention of the condemned man in prison until such time as the sentence is executed. The continuing constitutional validity of the death sentence is put beyond all doubt by Section 2(1) which reads: No
person shall be deprived of his life intentionally save in execution of
the sentence of a court in respect of a criminal offence under the law
of Grenada of which he has been convicted.
57. Therefore,
as the Commission has determined in previous cases,[37]
that the crimes of capital murder in Grenada can 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, the
death penalty must be imposed. Accordingly, mitigating circumstances
cannot be taken into account by a court in sentencing an individual to
death once a conviction for capital murder has been rendered. 58. As indicated in Part III of this Report, Mr. Lallion has alleged that the State violated his rights pursuant to Articles 4(1), 4(2), 4(6), 5(1), 5(2), 8 and 24 of the American Convention, because he was sentenced to a mandatory death penalty for the crime of murder. Mr. Lallion also argued that the process for granting amnesty, pardon or commutation of sentence in Grenada does not provide an adequate opportunity for considering individual circumstances, and in itself violates Article 4(6) of the Convention. (b)
Mr. Lallion's Mandatory Death Penalty, Articles 4, 5, and 8 of
the American Convention 59.
In previous cases[38]
involving the application of capital punishment under Section 234 of the
Criminal Code of Grenada, The Commission has evaluated the mandatory
nature of the death penalty under that legislation in light of Article 4
(right to life),[39]
Article 5 (right to humane treatment)[40]
and Article 8 (right to a fair trial)[41]
of the Convention and the principles underlying those provisions. It has
also considered the mandatory death penalty in light of pertinent
authorities in other international and domestic jurisdictions, to the
extent that those authorities may inform the appropriate standards to be
applied under the American Convention.[42]
Based upon these considerations and analysis, the Commission has reached
the following conclusions. 60.
First, the Commission has found that the supervisory bodies of
international human rights instruments have subjected the death penalty
provisions of their governing instruments to a rule of restrictive
interpretation, to ensure that the law strictly controls and limits the
circumstances in which a person may be deprived of his life by
authorities of the state. This includes strict compliance with standards
of due process.[43]
61.
In addition, the Commission has identified a general recognition
by domestic and international authorities 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. The Commission has accordingly determined that the fact
that the death penalty is an exceptional form of punishment must also be
considered in interpreting Article 4 of the American Convention.[44]
62.
Finally, the Commission has observed that under the express terms
of Article 4 of the Convention, certain circumstances of individual
offenses and individual defendants may bar the imposition or application
of the death penalty altogether, and as a consequence must be taken into
account in sentencing an individual to death.[45]
63.
In the context of these interpretive rules and principles, the
Commission has also previously evaluated mandatory death penalty
legislation under Articles 4, 5 and 8 of the Convention, and has
concluded that imposing the death penalty through mandatory sentencing,
as Grenada and Jamaica have done in respect of the crime of capital
murder, is not consistent with the terms of Article 4(1), 5(1), 5(2),
8(1) and 8(2) of the Convention and the principles underlying those
Articles.[46]
The Commission observes in this regard that a majority at the UN Human
Rights Committee recently reached a similar conclusion in the context of
Article 6(1) of the International Covenant on Civil and Political
Rights.[47]
64. The Commission has determined that imposing the death penalty in a manner that conforms with Articles 4, 5 and 8 of the Convention requires an effective mechanism by which a defendant may present representations and evidence to the sentencing court as to whether the death penalty is a permissible or appropriate form of punishment in the circumstances of his case. In the Commission’s view, this includes, but is not limited to, representations and evidence as to whether any of the factors incorporated in Article 4 of the Convention may prohibit the imposition of the death penalty.[48] 65.
In reaching this conclusion, the Commission has identified a
principle common to those democratic jurisdictions that have retained
the death penalty, according to which the death penalty should only be
implemented through "individualized" sentencing.[49]
Through this mechanism, the defendant is entitled to present submissions
and evidence in respect of all potentially mitigating circumstances
relating to his or her person or offense, and the court imposing
sentence is afforded discretion to consider these factors in determining
whether the death penalty is a permissible or appropriate punishment.
Mitigating factors may relate to the gravity of the particular offense
or the degree of culpability of the particular offender, and may include
such factors as the offender’s character and record, subjective
factors that might have motivated his or her conduct, the design and
manner of execution of the particular offense, and the possibility of
reform and social readaptation of the offender.
66.
Applying these findings in the context of the cases presently
before it, the Commission has confirmed that Mr. Lallion was convicted
of capital murder pursuant to Section 234 of the Criminal Code of
Grenada and that no provisions in the Code have been identified that
permit a judge or jury to consider the personal circumstances of an
offender or his or her offense, such as the offender’s record or
character, the subjective factors that may have motivated his or her
conduct, or the offender’s likelihood of reform or social
readaptation, in determining whether the death penalty is an appropriate
penalty for a particular offender in the circumstances of the
offender’s case. 67.
In Mr. Lallion's case, the Court could not consider the
mitigating factors of his case nor the nature of the offense, upon his
conviction for murder and prior to sentencing him to death. The Trial
Court could not take into account the fact that he was questioned in
excess of the 48 hours and not brought promptly before the Court as
provided by the law of Grenada. Mr. Lallion was detained from 4:15 p.m.
on September 29, 1993 to 1:15 p.m. on October 2, 1993, in excess of the
48 hours established by the domestic law of Grenada, and during that
illegal detention Mr. Joseph, the former Assistant Superintendent of
Police held him by his shirt and the other policeman, "Mason"
gave him a "small punch" in his belly, and he was forced to
sign a confession.[50]
In addition, the police officers ordered Mr. Lallion to remove the
plastic covering from the deceased's body, where he was laying in the
morgue. At the conclusion of his trial, and upon satisfying the elements
of Section 234 of the Code, Mr. Lallion was convicted of murder. The
Trial Court had no discretion in passing sentence on him because death
is the automatic penalty under the law of Grenada. 68.
Consequently, the Commission concludes that once Mr. Lallion was
found guilty of capital murder, the law in Grenada did not permit a
hearing by the courts as to whether the death penalty was a permissible
or appropriate penalty. There was no opportunity for the trial judge or
the jury to consider such factors as Mr. Lallion's character or record,
the nature or gravity of his crime, or the subjective factors that may
have motivated his conduct, in determining whether the death penalty was
an appropriate punishment. Mr. Lallion was likewise precluded from
making representations on these matters, as a consequence of which there
is no information on the record as to potential mitigating factors that
might have been presented to the trial court. The court sentenced Mr.
Lallion to a mandatory death sentence based solely upon the category of
crime for which he had been found responsible. 69.
In this context, and in light of the Commission's prior analysis
of the mandatory death penalty under the Convention, the Commission
concludes that the State violated Mr. Lallion's rights under Articles
4(1), 5(1), 5(2), and 8(1) of the Convention, in conjunction with
violations of Articles 1(1) and 2 of the Convention, by sentencing him
to a mandatory death penalty. 70.
With respect to Article 4(1) of the Convention, the Commission
concludes that the trial court was compelled under the State’s
legislation to impose a death sentence on Mr. Lallion, without any
discretion to consider his personal characteristics and the particular
circumstances of his offense to determine whether death was an
appropriate punishment. Mr. Lallion was likewise not provided with an
opportunity to present representations and evidence as to whether the
death penalty was an appropriate punishment in the circumstances of his
case. Rather, the death penalty was imposed upon Mr. Lallion
automatically and without principled distinction or rationalization as
to whether it was an appropriate form of punishment in the particular
circumstances of his case. Moreover, the propriety of the sentence
imposed was not susceptible to any effective form of judicial review,
and Mr. Lallion's execution and death at the hands of the State is
imminent, his conviction having been upheld on appeal to the highest
court in Grenada. The Commission therefore concludes that the State has
by this conduct violated Mr. Lallion's right under Article 4(1) of the
Convention not to be arbitrarily deprived of his life, and therefore,
Mr. Lallion's death sentence is unlawful.[51] 71.
The Commission further concludes that the State, by sentencing
Mr. Lallion to a mandatory death penalty absent consideration of his
individual circumstances, has failed to respect Mr. Lallion's right to
his physical, mental and moral integrity contrary to Article 5(1) of the
Convention, and has subjected him to cruel, inhuman, or degrading
punishment or treatment in violation of Article 5(2). The State
sentenced Mr. Lallion solely because he was convicted of a predetermined
category of crime. Accordingly, the process to which Mr. Lallion has
been subjected would deprive him of his most fundamental rights, his
right to life, without considering the personal circumstances and the
particular circumstances of his offenses. Not only does this treatment
fail to recognize and respect Mr. Lallion's integrity as an individual
human being, but in all of the circumstances has subjected him to
treatment of an inhuman or degrading nature. Consequently, the State has
violated Article 5(1) and 5(2) of the Convention in respect of Mr.
Lallion.[52] 72.
Finally, the Commission concludes that the State has violated
Article 8(1) of the Convention, when read in conjunction with the
requirements of Article 4 of the Convention, by subjecting Mr. Lallion
to a mandatory death sentence. By denying Mr. Lallion an opportunity to
make representations and present evidence to the trial judge as to
whether his conviction warranted the ultimate penalty of death, under
the terms of Article 4 of the Convention or otherwise, the State also
denied Mr. Lallion his right to fully answer and defend the criminal
accusations against him, contrary to Article 8(1) of the Convention.[53]
73.
It follows from the Commission’s findings that, should the
State execute Mr. Lallion pursuant to his death sentence, this would
constitute further egregious and irreparable violations of Articles 4
and 5 of the Convention.
3. Article 4(6) of the Convention
and the Prerogative of Mercy in Grenada 74.
Article 4(6) of the Convention provides that "[e]very 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." 75.
The Petitioners in the present case have also contended that the
process for granting amnesty, pardon or commutation of sentence in
Grenada is not consistent with Article 4(6) of the Convention because it
does not provide for certain procedural rights which the Petitioners
assert are integral to render this right effective. In this connection,
the authority of the Executive in Grenada
to exercise its Prerogative of Mercy is prescribed in
Sections 72, 73 and 74 of the Constitution of Grenada, which provide as
follows: 72(1)
The Governor-General may, in Her Majesty’s name and on Her Majesty’s
behalf.- (a) grant a pardon, either free or subject to lawful conditions, to
any person convicted of any offence; (b) grant to any person a respite, either indefinite or for a
specified period, of the execution of any punishment
imposed on that person for any offence; (c) substitute a less severe form of punishment for any punishment
imposed on a person for any offence; or (d) remit the whole or any part of any punishment imposed on any
person for any offence or of any penalty or forfeiture otherwise due to
the Crown on account of any offence. (2)
The powers of the Governor-General under subsection (1) of this section
shall be exercised by him in accordance with the advice of such Minister
as may for the time being be designated by the Governor-General, acting
in accordance with the advice of the Prime Minister. 73
(1) There shall be an Advisory Committee on the Prerogative of Mercy
which shall consist of – (a) Minister for the
time being designated under Section 72(2) of this Constitution who shall
be the Chairman; (b) the Attorney General; (c) the chief medical officer of the Government of Grenada; and (d) three other members appointed by the Governor-General, by
instrument in writing under his hand. (2) A member of the Committee appointed under subsection (1)(d) of
this section shall hold his seat thereon for such period as may be
specified in the instrument by which he was appointed: Provided
that his seat shall become vacant (a) in the case of a person who, at the date of his appointment was a
Minister, if he ceases to be a Minister; or (b)
if the Governor-General by instrument in writing under his hand,
so directs. (3) The Committee may act notwithstanding any vacancy in its
membership or absence of any member and its proceedings shall not to be
invalidated by the presence or participation of any person not entitled
to be present at or to participate in those proceedings. (4) The Committee may regulate its own procedure. (5) In the exercise of his functions under this section, the
Governor-General shall act in accordance with the advice of the Prime
Minister. 74(1)
Where any person has been sentenced to death (otherwise than by a
court-martial) for an offence, the Minister for the time being
designated under section 72(2) of this Constitution shall cause a
written report of the case from the trial judge (or, if a report cannot
be obtained from the judge, a report on the case from the Chief
Justice), together with such other information derived from the record
of the case or elsewhere as he may require, to be taken into
consideration at a meeting of the Advisory Committee on the Prerogative
of Mercy; and after obtaining the advice of the Committee he shall
decide in his own deliberate judgment whether to advise the
Governor-General to exercise any of his powers under section 72(1) of
this Constitution. (2) The Minister for the time being designated under section 72(2) of
this Constitution may consult with the Advisory Committee on the
Prerogative of Mercy before tendering advice to the Governor-General
under section 72(1) of this Constitution in any case not falling within
subsection (1) of this section but he shall not be obliged to act in
accordance with the recommendation of the Committee. 76.
In addressing this issue, the Commission first observes that in
the cases of Rudolph Baptiste and Donnason Knights, the
Commission determined that the process for exercising the Prerogative of
Mercy under Sections 72, 73, and 74 of the Grenadian Constitution did
not guarantee the condemned prisoners in those cases an effective or
adequate opportunity to participate in the mercy process, as required
under Article 4(6) of the Convention.[54]
77.
In reaching this conclusion, the Commission interpreted the right
to apply for amnesty, pardon or commutation of sentence under Article
4(6), when read together with the State's obligations under Article 1(1)
of the Convention, as encompassing certain minimum procedural guarantees
for condemned prisoners, in order for the right to be effectively
respected and enjoyed. These protections were held to include the right
on the part of condemned prisoners to submit a request for amnesty,
pardon or commutation of sentence, to be informed of when the competent
authority will consider the offender's case, to make representations, in
person or by counsel, to the competent authority, and to receive a
decision from that authority within a reasonable period of time prior to
his or her execution.[55]
It was also held to entail the right not to have capital punishment
imposed while such a petition is pending decision by the competent
authority. [56]
78.
In making this determination in the cases of Rudolph Baptise,
Donnason Knights, McKenzie et al., the information before
the Commission indicated that neither the legislation nor the courts in
Grenada and in Jamaica guaranteed the prisoners in those cases any
procedural protection in relation to the exercise of the Prerogative of
Mercy. Rather, the petitioners and the State in those cases indicated
that according to domestic jurisprudence at that time, the exercise of
the power of pardon in Jamaica involved an act of mercy that was not the
subject of legal rights and therefore is not subject to judicial review,
and cited in support the decision of the Judicial Committee of the Privy
Council in the Reckley Case, supra.
79.
Since adopting its report in the cases of Rudolph Baptise
and Donnason Knights and McKenzie et al., the Commission
has received information that in a September 12, 2000 judgment in the
case of Neville Lewis et al. v. The Attorney General of Jamaica,
the Judicial Committee of the Privy Council found that an individual's
petition for mercy under the Jamaican Constitution is open to judicial
review.[57]
The Judicial Committee of the Privy Council also found that the
procedure for mercy must be exercised by procedures that are fair and
proper, which require, for example, that a condemned individual be given
sufficient notice of the date on which the Jamaican Privy Council will
consider his or her case, to be afforded an opportunity to make
representations in support of his or her case, and to receive copies of
the documents that will be considered by the Jamaican Privy Council in
making its decision.[58] 80.
Notwithstanding the determination in the Neville Lewis
Case, however, there is no information in the present case indicating
that the
State has extended the legal requirements articulated in that
decision to Mr. Lallion. Accordingly, based upon the information
available, the Commission finds that the procedure available to Mr.
Lallion to seek amnesty, pardon or commutation of sentence has not
guaranteed him an effective or adequate opportunity to participate in
the mercy process. 81.
The Commission also concludes that the State has violated Mr.
Lallion's right pursuant to
Article 4(6) of the American Convention by failing to guarantee him an
effective right to apply for amnesty, pardon or commutation of sentence,
to make representations, in person or by counsel, to the Advisory
Committee on the Prerogative of Mercy, and to receive a decision from
the Advisory Committee within a reasonable time prior to his execution. 82. Given its foregoing conclusions as to the legality of Mr. Lallion's death sentence under Articles 4, 5 and 8 of the Convention, the Commission does not consider it necessary to determine whether sentencing Mr. Lallion to a mandatory death penalty violated his rights to equal protection of the law contrary to Article 24 of the Convention. 4.
Articles 4 and 5 – Conditions of Detention 83.
The Petitioners allege that the State has violated Mr. Lallion's
rights to have his physical, mental and moral integrity respected, as
well as his right not to be subjected to cruel, unusual or degrading
punishment or treatment pursuant to Article 5(1) and 5(2) of the
American Convention, because of the conditions of detention to which he
has been subjected. They argue further that these conditions render Mr.
Lallion's execution unlawful under Article 4 of the Convention. 84.
In support of their allegations, the Petitioners provided the
Commission with Mr. Lallion's Affidavit detailing the conditions under
which he has been detained on death row in Richmond Hill Prison,
Grenada, upon his conviction for murder,[59]
and submit the following: I am presently incarcerated on death row which consist of a number of cells each containing one inmate. The cells on death row are situated underneath the main prison building in an area called "Jonestown" (named after the Jonestown Massacre in Guyana in South America some years ago). My
cell is approximately 9 feet by 6 feet
(9ft. x 6ft.) and I spend approximately 23 hours a day in my cell
alone. I am provided with a
bed and mattress to sleep on, but there is no other furniture in my
cell. I am provided with a bucket which I use as a toilet.
I am permitted to slop out the contents of the bucket once a day.
Once it has been used, I am forced to endure the smell and unhygienic
conditions until I am able to empty it. The
lighting in my cell is insufficient.
The cell has no windows and no natural lighting, and accordingly
has no ventilation. Any
lighting in my cell is provided by a single bulb situated in the
corridor in front of my cell. I
am provided with three meals a day.
Sometimes food is brought to me in my cell where I am made to eat
alone. The food is
generally of a poor quality. I
am provided with drinking water. I
am allowed one hour of exercise per day. There are no exercise
facilities and my hour is usually spent standing in the yard. I
am allowed one visitor per month for a period of 15 minutes.
I am allowed to write and receive one letter a month. As
a prisoner on death row, I am not permitted access to the prison
services. I am not allowed
to use the prison library, nor am I allowed access to the chaplain and
religious services. I
receive inadequate medical care. Visits
by the doctor are not regular and it is not always clear whether I will
be able to see a doctor when necessary. There
are no adequate complaints mechanism or procedure for dealing with any
complaints I may have. 85. As described in Part III of this Report, the Petitioners also rely upon general sources of information regarding prison conditions in Grenada and other Caribbean countries. These include reports prepared in 1990 and 1991 by the non-governmental organization "Caribbean Rights." While somewhat outdated, the Reports tend to support Mr. Lallion's allegations in respect of the conditions in which he has been incarcerated since his arrest. 86. The Commission considers that the Petitioners' allegations should be evaluated in light of minimum standards articulated by international authorities for the treatment of prisoners, including those prescribed by the United Nations. More particularly, Rules 10, 11A, 11B, 12, 13,15, 19, 21, 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), 40, 41, 57, 71(2), 72(3), and 77 of the United Nations Standard Minimum Rules for the Treatment of Prisoners[60] (UN Minimum Rules) provide for minimum basic standards in respect of accommodation, hygiene, exercise, medical treatment, religious services and library facilities for prisoners, as follows: 10. All accommodation provided for
the use of prisoners and in particular all sleeping accommodation shall
meet all requirements of health, due regard being paid to climatic
conditions and particularly to cubic content of air, minimum floor
space, lighting, heating and ventilation. 11. In all places where prisoners are
required to live or work, (a) the windows shall be
large enough to enable prisoners to read or work by natural light, and
shall be so constructed that they can allow the entrance of fresh air
whether or not there is artificial ventilation; (b) Artificial light shall be
provided sufficient for the prisoners to read or work without injury to
eyesight. 12. The sanitary installations shall
be adequate to enable every prisoner to comply with the needs of nature
when necessary and in a clean and decent manner. 15. Prisoners shall be required to
keep their persons clean, and to this end they shall be provided with
water and with such toilet articles as are necessary for health and
cleanliness. 21. (1)
Every prisoner who is not employed in outdoor work shall have at
least one hour of suitable exercise in the open air daily if the weather
permits. (2) Young prisoners, and others
of suitable age and physique, shall receive physical and recreational
training during the period of exercise. To this end space, installations
and equipment should be provided. 24. The medical officer shall see and
examine every prisoner as soon as possible after his admission and
thereafter as necessary, with a view particularly to the discovery of
physical and mental illness and the taking of all necessary measures;
the segregation of prisoners suspected of infectious or contagious
conditions; the noting of physical or mental defects which might hamper
rehabilitation, and the determination of the physical capacity of every
prisoner for work. 26. (1) The medical officer shall have the care of the physical and
mental health of the prisoners and should see daily all sick prisoners,
all who complain of illness, and any prisoner to whom his attention is
specially directed. (2) The medical officer shall
report to the director whenever he considers that a prisoner’s
physical or mental health has been or will be injuriously affected by
continued imprisonment or by any condition of imprisonment. 40. Every institution shall have a
library for the use of all categories of prisoners, adequately stocked
with both recreational and instructional books, and prisoners shall be
encouraged to make full use of it. 41. (1) If the institution contains a sufficient number of prisoners of
the same religion, a qualified representative of that religion shall be
appointed or approved. If
the number of prisoners justifies it and conditions permit, the
arrangement should be on a full-time basis.
(2) A qualified representative appointed or approved under paragraph
(1) shall be allowed to hold regular services and to pay pastoral visits
in private to prisoners of his religion at proper times. (3) Access to a qualified
representative of any religion shall not be refused to any prisoner.
On the other hand, if any prisoner should object to a visit of
any religious representative, his attitude shall be fully respected. 42. So far as practicable, every
prisoner shall be allowed to satisfy the needs of his religious life by
attending the services provided in the institution and having in his
possession the books of religious observance and instruction of his
denomination. 87. It is evident that based upon the Petitioners' allegations that the State has failed to meet these minimum standards of proper treatment for Mr. Lallion. The cumulative impact of such conditions, together with the length of time for which Mr. Lallion has been incarcerated in connection with his criminal proceedings, cannot be considered consistent with the right to humane treatment under Article 5 of the Convention.[61] Based upon the information provided by the Petitioners the conditions of detention to which he has been subjected fail to meet several of these minimum standards of treatment of prisoners, in such areas as hygiene, exercise and medical care.
88. For example, Mr. Lallion claims that the cell has no windows, no natural lighting, and no ventilation, and that the lighting in his cell is insufficient. They claim that he is provided with a bucket to use as a toilet, and that he is only entitled to empty the bucket once a day and is therefore forced to ensure unpleasant smells and unhygienic conditions once the bucket is used. Mr. Lallion asserts that he is not allowed to use the prison library, nor is he allowed access to the chaplain or religious services. Further, Mr. Lallion states that he receives inadequate medical care, because visits from the doctor are not regular and it is not clear whether he will be able to see a doctor when necessary. Finally, Mr. Lallion contends that there are no adequate mechanisms or procedures in the prison for dealing with his complaints. 89.
The State did not specifically reply to Mr. Lallion's petition
with respect to prison conditions in Grenada, generally, or as they
pertain to Mr. Lallion. The State in the penultimate paragraph in its
Reply to Mr. Lallion's petition, addressed the issue of prolonged
detention on death row, and stated the following: "I
also agree that condemned prisoners on death row should no[t], in
principle, be subjected to a prolonged period of imprisonment as they
undoubtedly suffer a certain level of anguish and mental agony whilst
awaiting execution. Such
anguish is however, an inevitable consequence of their detention and
does not amount to an independent infringement of their constitutional
rights." 90. Consequently, the Commission finds that the conditions of detention to which Mr. Lallion has been subjected fail to respect his physical, mental and moral integrity as required under Article 5(1) of the Convention. The Commission therefore finds that the State is responsible for violating this provision of the Convention in respect of Mr. Lallion in conjunction with the State‘s obligations under Article 1(1) of the Convention. 5. Articles 8 and 25 –
Unavailability of Legal Aid for Constitutional Motions 91.
The Petitioners argue that legal aid is not effectively available
for Constitutional Motions before the courts in Grenada, and that this
constitutes a violation of Mr. Lallion's right to a fair trial under
Article 8 of the Convention. Although
the Petitioners have not specifically referred to Article 25 of the
American Convention, the right to an effective remedy, the Commission
considers that their allegations relating to the denial of an effective
remedy at law also encompass Article 25 of the Convention. Therefore,
the Commission has also analyzed their claim relating to the
unavailability of legal aid for Constitutional Motions under Article 25
of the Convention, in conformity with Article 28(f) of the
Commission’s Rules of Procedure.[62]
92.
The Petitioners contend that the failure of the State to provide
legal aid denies Mr. Lallion access to the Court in fact as well as in
law. The Petitioners argue that to bring a Constitutional Motion before
the domestic courts often involve sophisticated and complex questions of
law that require the assistance of Counsel. In addition, the Petitioners
claim that Mr. Lallion is indigent, and that legal aid is effectively
not available to him to pursue a Constitutional Motion in the courts in
Grenada. The Petitioners also contend that there is a dearth of
Grenadian lawyers who are prepared to represent Mr. Lallion pro bono. 93.
Based upon the material before it, the Commission is satisfied
that a Constitutional Motion dealing with legal issues of the nature
raised by Mr. Lallion in his petition, such as the right to due process
and the adequacy of his prison conditions, are procedurally and
substantively complex and cannot be effectively raised or presented by a
prisoner in the absence of legal representation. The Commission has also
found in previous cases from Grenada, Rudolph Baptiste[63]
and Donnason Knights[64]
that the State does not provide legal aid to individuals in Grenada to
bring Constitutional Motions, and that Mr. Lallion is indigent and is
therefore not otherwise able to secure legal representation to pursue a
Constitutional Motion. 94.
The Commission considers that in the circumstances of Mr.
Lallion's case, the State's obligations regarding legal assistance for
him to pursue a Constitutional Motion flows from both Article 8 and
Article 25 of the Convention. In particular, the determination of rights
through a Constitutional Motion in the High Court must conform with the
requirements of a fair hearing in accordance with Article 8(1) of the
Convention. In the circumstances of Mr. Lallion's case, the High Court
of Grenada would be called upon to determine whether Mr. Lallion's
conviction in a criminal trial violated his rights under the Grenada’s
Constitution. In such a case, the application of a requirement of a fair
hearing in the High Court should be consistent with the principles in
Article 8(2) of the Convention.[65]
Accordingly, when a convicted person seeking Constitutional review of
the irregularities in a criminal trial lacks the means to retain legal
assistance to pursue a Constitutional Motion and where the interests of
justice so require, legal assistance should be provided by the State. 95.
Due to the unavailability of legal aid, Mr. Lallion has
effectively been denied the opportunity to challenge the circumstances
of his conviction under Grenada’s Constitution in a fair hearing. This
in turn constitutes a violation of his right under Article 8(1) of the
American Convention.[66]
96.
Moreover, Article 25 of the Convention provides individuals with
the right to simple and prompt recourse to a competent court or tribunal
for protection against acts that violate their fundamental rights
recognized by the Constitution or laws of the state concerned or by the
Convention. The Commission has stated that the right to recourse under
section 25 when read together with the obligation in Article 1(1) and
the provisions of Article 8(1), "must be understood as the right of
every individual to go to a tribunal when any of his rights have been
violated (whether a right protected by the Convention, the Constitution,
or the domestic laws of the State concerned), to obtain a judicial
investigation conducted by a competent, impartial and independent
tribunal that will establish whether or not a violation has taken place
and will set, when appropriate, adequate compensation."[67]
97.
In addition, the Inter-American Court has held that if legal
services are required either as a matter of law or fact in order for a
right guaranteed by the Convention to be recognized and a person is
unable to obtain such services because of his indigence, then that
person is exempted from the requirement under the Convention to exhaust
domestic remedies.[68] While the Court rendered
this finding in the context of the admissibility provisions of the
Convention, the Commission considers that the Court's comments are also
illuminating in the context of Article 25 of the Convention in the
circumstances of the present case. 98.
By failing to make legal aid available to Mr. Lallion to pursue a
Constitutional Motion in relation to his criminal proceedings, the State
has effectively barred recourse for Mr. Lallion to a competent court or
tribunal in Grenada for protection against acts that potentially violate
his fundamental rights under Grenada’s Constitution and under the
American Convention. Moreover, in capital cases, where Constitutional
Motions relate to the procedures and conditions through which the death
penalty has been imposed and therefore relate directly to the right to
life and to humane treatment of a defendant, it is the Commission's view
that the effective protection of those rights cannot properly be left to
the random prospect as to whether an attorney may be willing or
available to represent the defendant without charge. The right to
judicial protection of these most fundamental rights must be guaranteed
through the effective provision of legal aid for Constitutional Motions.[69]
The State cannot be said to have afforded such protection to Mr.
Lallion. As a consequence, the State has failed to fulfill its
obligations under Article 25 of the American Convention in respect of
Mr. Lallion. 99.
Accordingly, the Commission concludes that the State has failed
to respect Mr. Lallion's right under Article 8(1)of the Convention by
denying him an opportunity to challenge the circumstances of his
conviction under the Constitution of Grenada in a fair hearing. The
Commission also concludes that the State has failed to provide Mr.
Lallion with a simple and prompt recourse to a competent court or
tribunal for protection against acts that violate his fundamental rights
recognized by the Constitution or laws of Grenada or by the Convention,
and has therefore violated the right of Mr. Lallion to judicial
protection under Article 25 of the American Convention. 6. Article 7 - The Right to Personal
Liberty and to be Brought Promptly before a Judge 100.
The Petitioners allege violations of Articles 7(2), 7(4) and 7(5)
of the Convention, because Mr. Lallion was detained in police custody
for over 48 hours and was not promptly notified of the charges against
him or brought promptly before a judge or other judicial officer. The
Petitioners contend that Mr. Lallion was detained from 4:15 p.m. on
September 29, 1993 to 1:15 p.m. on October 2, 1993, in excess of the 48
hours established by the domestic law of Grenada. He was formally
charged on October 2nd
1993, and was not brought before a Judge until October 4th
1993.[70]
The Petitioner states that Section 22(3) of the Police Act of
Grenada provides: "It shall be lawful for any police officer to
detain for questioning, for a period not exceeding forty-eight hours,
any person whom he believes upon reasonable suspicion to have committed
or to be about to commit a criminal offence." 101.
The Petitioners contend that upon Mr. Lallion's denial that he
was responsible for the deceased's death, Mr. Joseph, the Assistant
Superintendent of Police Officer stated that he was going to help Mr.
Lallion, and officer Mason sent for some papers and began writing on it.
The Petitioners claim that Mr. Lallion was asked to sign the
statement, and he was then taken to where the deceased was laying in the
morgue, and was asked by a police officer to uncover the
"plastic" over the deceased's body, Mr. Lallion complied with
the policeman's order, and uncovered the deceased.
The Petitioners maintain that Mr. Lallion was returned to the
police station where he was questioned again, intimidated by them, and
subsequently was forced to sign a confession. 102. In addressing the issue of Article 7(5) with regard to being brought promptly before a judge, the Commission has held that it is fundamental that a person be brought before a judge promptly subsequent to their detention in order to ensure their well-being and avoid any infringement of their other rights.[71] In Report Nº 2/97, the case of Jorge Luis Bernstein and others, the Commission declared that "[t] he right to the presumption of innocence requires that the duration of preventive detention not exceed the reasonable period of time cited in Article 7(5)."[72] Furthermore, the Commission noted that: In
order to ensure the effective judicial oversight of the detention, the
competent court must be quickly appraised of the persons who are held in
confinement. One of the
purposes of such action is to protect the well-being of the persons
detained and to avoid any violation of their rights. The [Commission]
has determined that, unless such detention is reported to the court, or
the court is so advised after an appreciable length of time has elapsed
from the time the subject has been deprived of his freedom, the rights
of the person in custody are not being protected and the detention
infringes that person's right to due process.[73] 103. In addition, the Commission stated that when the Commission finds that a State has purported to provide a justification for [preventive detention], "[the Commission] must proceed to ascertain whether [the State] authorities have exercised the requisite diligence in discharging the respective duties in order to ensure that the duration of such confinement is not unreasonable."[74] In the Commission's view, such justifications might include the presumption that the accused has committed an offense, danger of flight, the risk that new offences may be committed, the need to investigate, the possibility of collusion, the risk of pressure on the witnesses, and the preservation of public order.[75] 104. Other international human rights tribunals have endeavored to define the "prompt" appearance of a detainee before a judge more precisely. The United Nations Human Rights Committee in the case of Peter Grant v. Jamaica,[76] found that a one week period from the time of arrest to the date of being brought before a judge constitutes a violation of Article 9(3) of the ICCPR[77] [equivalent to Article 7(5) of the Convention]. Additionally, in the decision of the Committee in the case of Paul Kelly v. Jamaica,[78] the individual opinion submitted by Mr. Bertil Wennergren indicated that the word "promptly" does not allow for a delay in excess of two or three days. 105. Additionally, the European Court of Human Rights has emphasized the importance of "promptness" in the context of Article 5(3) of the European Convention as follows:[79]
[I]t
enshrines a fundamental human right, namely the protection of the
individual against arbitrary interferences by the State with his right
to liberty (citation omitted). Judicial
control of interferences by the executive with the individual's right to
liberty is an essential feature of the guarantee embodied in Article
5(3) [of the European Convention on Human Rights], which is intended to
minimize the risk of arbitrariness.
Judicial control is implied by the rule of law, "one of the
fundamental principles of a democratic society"….[80]
106. Furthermore, in the case of Brogan and Others, the European Court of Human Rights found that a period of detention of four days failed to comply with the requirement of a "prompt" appearance before a judicial authority.[81] Similarly, in the case of Koster v. The Netherlands, the European Court found a delay of five days to be in excess of the meaning of "promptness" in bringing a detainee before a judicial authority, therefore in violation of Article 5(3) of the European Convention.[82] 107.
The Commission likewise considers that it is essential for a
detainee to be brought before a judicial authority in order to review
the lawfulness of his or her detention, not only in order to comply with
the requirements under Article 7(5), but also to ensure the protection
of the prisoner's other guaranteed rights while in detention and to
minimize the risk of arbitrariness.[83]
In addition, the Commission also notes that the domestic law of Grenada
prohibits the Police from detaining a suspect for questioning in excess
of 48 hours. This provision is found in Section 22(3) of the Police Act
of Grenada which provides that: "It shall be lawful for any police
officer to detain for questioning, for a period not exceeding
forty-eight hours, any person whom he believes upon reasonable suspicion
to have committed or to be about to commit a criminal offence."
However, the State failed to comply with its own domestic law in Mr.
Lallion's case, and he was questioned in excess of time permitted by
Section 22(3) of the Police Act. 108. The Commission believes that what occurred during the delay in Mr. Lallion's case before he was brought promptly before a judge is precisely what the American Convention and international human rights courts applying human rights treaties and jurisprudence discussed above seek to prevent. Mr. Lallion was detained for questioning at about 4:15 p.m., on Wednesday September 29th 1993, and was kept in detention until 4:00 p.m., on October 2nd, 1993, a total of 3 days after which he was forced to sign a confession. He was formally charged on October 2nd 1993, and was not brought before a Judge until October 4th, 1993.[84] Mr. Lallion's unsworn testimony before the Trial Court reveals that during the period of his detention he was questioned for an extensive period of time as to his involvement in the deceased's death. The former Assistant Superintendent of Police, Mr. Joseph, held him by his shirt, and the other policeman "Mason" punched him in his belly. Mr. Lallion was then taken to where the deceased was laying in the morgue, and was asked by a police officer to uncover the "plastic" over the deceased's body, and he complied with this request. 109. The Commission finds that the delay of 3 days in Mr. Lallion's case was in excess of the 48 hours as provided by the Criminal Code of Grenada, although not of the same duration as the delays which were found to constitute violations before the United Nations Human Rights Committee and the European Court on Human Rights. The Commission notes that the provisions of the ICCPR[85] and European Convention[86] under consideration by those tribunals are virtually identical to Article 7(5) of the American Convention, and the Commission sees no reason why the Convention should be subject to any lesser standard with respect to the right of a detained person to be brought promptly before a judge. Moreover, the State has not provided any response to the allegations concerning the issue of delay, nor has the State offered any adequate explanation or justification for the delay in Mr. Lallion's case. 110. In assessing the totality of the circumstances of Mr. Lallion's detention, the Commission finds that throughout Mr. Lallion's detention he was not informed promptly of the charges against him in violation of Article 7(4). The Commission also finds that because Mr. Lallion was not brought promptly before a judge, the State violated his right guaranteed under Article 7(4) of the Convention. In addition, the Commission finds that Mr. Lallion's detention by the State in violation of Article 7(4) and 7(5) also constituted an arbitrary deprivation of Mr. Lallion's right to personal liberty pursuant to Article 7(2) of the Convention. The Commission therefore concludes that the State violated Mr. Lallion's right to personal liberty guaranteed by Article 7(2), 7(4) and 7(5) of the Convention. V.
PROCEEDINGS SUBSEQUENT TO REPORT Nº 97/01 111.
The Commission examined this case in the course of its 113th
regular session and on October 11, 2001 adopted Report N° 97/01
pursuant to Article 50 of the American Convention.
112. On October
23, 2001, the Commission transmitted Report N° 97/01 to the State and
requested that the Government of Grenada inform the Commission within
two months as to the measures adopted to comply with the recommendations
made to resolve the situation denounced. 113. As of December 23, 2001, the date of expiration of the prescribed two-month period, the Commission had not received a response from the State to Report N° 97/01. VI. FINAL CONCLUSIONS 114. The Commission, on the basis of the information presented, and the due analysis under the American Convention, ratifies its conclusions that the State of Grenada is liable as follows: 115. The State is responsible for violating Mr. Lallion's rights under Articles 4(1), 5(1), 5(2) and 8(1), in conjunction with a violation of Article 1(1) of the American Convention, by sentencing Mr. Lallion to a mandatory death penalty.
116. The State
is responsible for violating Mr. Lallion's rights under Article 4(6) of
the Convention, in conjunction with a violation of Article 1(1) of the
American Convention, by failing to provide Mr. Lallion with an effective
remedy to apply for amnesty, pardon or commutation of sentence.
117. The State
is responsible for violating Mr. Lallion's rights under Article 5(1) of
the American Convention, in
conjunction with a violation of Article 1(1) of the American Convention,
because of its failure to respect Mr. Lallion's right to physical,
mental, and moral integrity by confining
him in inhumane conditions of detention.
118. The State
is responsible for violating Mr. Lallion's rights under Articles 8 and
25 of the Convention, in conjunction with a violation of Article 1(1) of
the Convention, by failing to make legal aid available to Mr. Lallion to
pursue a Constitutional Motion. 119.
The State is responsible for violating Mr. Lallion's right to
personal liberty as provided by Article 7(2), 7(4), and 7(5) of the
Convention, in conjunction with Article 1(1) of the Convention by
failing to protect his right to personal liberty, and to be brought
promptly before a judicial officer. VII.
RECOMMENDATIONS
Based
on the analysis and the conclusions in this Report, THE INTER-AMERICAN COMMISSION ON HUMAN
RIGHTS RECOMMENDS THAT THE STATE OF GRENADA: 1.
Grant Mr. Lallion an effective remedy which includes commutation
of sentence and compensation. 2.
Adopt such legislative or other measures as may be necessary to
ensure that the death penalty is not imposed in violation of the rights
and freedoms guaranteed under the Convention, including Articles 4, 5,
and 8, and in particular, to ensure that no person is sentenced to death
pursuant to a mandatory sentencing law in Grenada. 3.
Adopt such legislative or other measures as may be necessary to
ensure that the right under Article 4(6) of the American Convention to
apply for amnesty, pardon or commutation of sentence is given effect in
Grenada. 4.
Adopt such legislative or other measures as may be necessary to
ensure that the right to a fair hearing under Article 8(1) of the
American Convention and the right to judicial protection under Article
25 of the American Convention are given effect in Grenada in relation to
recourse to Constitutional Motions. 5.
Adopt such legislative or other measures as may be necessary to
ensure that the right to humane treatment under Article 5(1) of the
American Convention in respect of Mr. Lallion's conditions of detention
is given effect in Grenada. 6.
Adopt such legislative or other measures as may be necessary to
ensure that the right to personal liberty under Article 7(2), Article
7(4), and 7(5) of the American Convention in respect of Mr. Lallion is
given effect in Grenada. VIII. PUBLICATION 120.
On March 22, 2002, in conformity with Article 51(1) and 51(2) of
the American Convention, the Commission sent Report No. 28/02 which was
adopted in this case on March 12, 2002, to the State of Grenada, and
granted the State a period of one month for it to adopt the necessary
measures to comply with the foregoing recommendations and to resolve the
situation under analysis. 121.
The period of one month has elapsed and the Commission
has not received a response from the State of Grenada in respect of its
Recommendations in this case. IX.
FINAL ANALYSIS AND CONCLUSIONS 122.
Based on the foregoing and pursuant to Article 51(3) of the
American Convention and Article 48 of the Commission’s Regulations,
the Commission decides to reiterate the conclusions and recommendations
contained in Report Nº 28/02. The Commission further decides to make
public this report and include it in the Commission’s Annual Report to
the General Assembly of the OAS.
continued...
[ Table of Contents | Previous | Next ]
[33]
Donnason Knights, (Grenada) Report Nº 47/01, Annual Report
of the Inter-American Commission on Human Rights 2000, Volume II, at
841. OEA/Ser.L/V/II. 111, Doc. 20 rev., 16 April 2001; and the
following cases can be found in Annual Report of the Inter-American
Commission on Human Rights 2000, Volume I, OEA/Ser.L/VII.111, Doc. 3
rev., April 16, 2000 - Rudolph Baptiste, Report Nº 38/00,
Case 11.743 (Grenada) Annual Report of the Iachr
1999, p. 721, at p. 738 ; Report Nº 48/01, Michael Edwards,
Case Nº 12.067 (The Bahamas) at 620, Omar Hall, Case 12.068, at 620
(The Bahamas), Brian Schroeter and Jeronimo Bowleg, at
620(The Bahamas), McKenzie et al. (Jamaica), Report Nº 41/00, Annual
Report Of The IACHR 1999, p. 918, at P. 967. [34]
See e.g. McKenzie et al. Case, supra,
para. 169. [35]
See Santiago
Marzioni v. Argentina, Report Nº 39/96, Annual
Report of the IACHR 1996, p. 76, paras. 48-52. See also Clifton
Wright v. Jamaica, Case 9260 , Annual
Report of the IACHR 1987-88, p. 154; and William Andrews
v. The United States, Report Nº 57/96, Case 11.139, 570, at 614
para. 170. [36]
Section 234 of the Criminal Code, Title XVIII, Cap. 76 ,
p. 790, contains a proviso to the death penalty for a crime
of murder. The proviso
states: Provided
that the sentence of death shall not be pronounced or recorded
against a person convicted of murder if it appears to the Court that
at the time when the offence was committed he was under the age of
eighteen years; but, in lieu of such punishment, the Court shall
sentence the juvenile offender to be detained during Her Majesty’s
pleasure, and, if so sentenced, he shall, notwithstanding anything
in the other provisions of any other Law or Ordinance, be liable to
be detained in such place and under such conditions as the Governor
may direct, and whilst so detained shall be deemed to be in legal
custody. [37]
Donnason Knights, (Grenada) Report Nº 47/01, Annual Report
of the Inter-American Commission on Human Rights 2000, Volume II, at
841. OEA/Ser.L/V/II. 111, Doc. 20 rev., 16 April 2001; and the
following cases can be found in Annual Report of the Inter-American
Commission on Human Rights 2000, Volume I, OEA/Ser.L/VII.111, Doc. 3
rev., April 16, 2000 - Rudolph Baptiste, Report Nº 38/00,
Case 11.743 (Grenada) Annual
Report Of The Iachr 1999, p. 721, at p. 738; Report Nº 48/01,
Michael Edwards, Case 12.067 (The Bahamas) at 620, Omar Hall,
Case 12.068, at 620 (The Bahamas),
Brian Schroeter and Jeronimo Bowleg, at 620 (The
Bahamas). McKenzie
et al.
(Jamaica), Report Nº
41/00, Annual Report of
The IACHR 1999, P. 918, At P. 967, para 178. [38]
Donnason Knights, (Grenada) Report Nº 47/01, Annual Report
of the Inter-American Commission on Human Rights 2000, 16, 2000 -
Rudolph Baptiste, Report Nº 38/00, Case 11.743 (Grenada)
Annual Report of The
Iachr 1999, [39]
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. [40]
Article 5 of the Convention provides as follows: Article
5 – Right to Humane Treatment 1.
Every person has the right to have his physical, mental, and
moral integrity respected. 2.
No one shall be subjected to torture or to cruel, inhuman, or
degrading punishment or treatment. All persons deprived of their
liberty shall be treated with respect for the inherent dignity of
the human person. 3.
Punishment shall not be extended to any person other than the
criminal. 4.
Accused persons shall, save in exceptional circumstances, be
segregated from convicted persons, and shall be subject to separate
treatment appropriate to their status as unconvicted persons. 5.
Minors while subject to criminal proceedings shall be
separated from adults and brought before specialized tribunals, as
speedily as possible, so that they may be treated in accordance with
their status as minors. 6.
Punishments consisting of deprivation of liberty shall have
as an essential aim the reform and social readaptation of the
prisoners. [41]
Article 8(1) of the Convention provides: "Every person has the
right to a hearing, with due guarantees and within a reasonable
time, by a competent, independent, and impartial tribunal,
previously established by law, in the substantiation of any
accusation of a criminal nature made against him or for the
determination of his rights and obligations of a civil, labor,
fiscal, or any other nature". [42]
See e.g. Convention, Art. 29 (providing, inter
alia, that no provision of the Convention may be interpreted as
restricting the enjoyment or exercise of any right or freedom
recognized by virtue of the laws of any State Party or by virtue of
another Convention to which one of the said states is a party, or to
exclude or limit the effect that the American Declaration of the
Rights or Duties of Man and other international acts of the same
nature may have). [43] Donnason Knights, supra
at 875-882, Rudolph Baptiste, supra
at 740-763; and McKenzie et al. Case, supra, para. 186-187, citing I/A Court H.R., Advisory Opinion
OC-3/83 of September 8, 1983, Restrictions to the Death Penalty
(Arts. 4(2) and 4(4) of the American Convention on Human Rights),
Annual Report 1984, p. 31, para.
52 (finding that the text of Article 4 of the Convention as a whole
reveals a clear tendency to restrict the scope of the death penalty
both as far as its imposition and its application are concerned.); Anthony
McLeod v. Jamaica, Communication No. 734/1997, U.N.Doc
CCPR/C/62/734/1997. See similarly
Baptiste Case, supra,
paras. 74-75. [44]
Donnason Knights, supra at Woodson v. North Carolina
875-882, Rudolph Baptiste, supra
at 740-763; McKenzie et. al. Case, supra,
para. 188, citing, inter alia,
49 L Ed 2d 944, 961 (finding that "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"). [45]
Id, para. 189, citing Advisory
Opinion OC-3/83, supra,
para. 55 (observing with regard to Article 4 of the Convention that
"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"). [46]
Id., paras. 193-207. See similarly Baptiste Case, supra,
paras. 80-94. [47]
UNHRC, Eversley Thompson v. St. Vincent and the Grenadines,
Communication Nº 806/1998 (October 18, 2000). [48]
Donnason Knights, supra
at 875-882, Rudolph Baptiste, supra
at 740-763; and McKenzie et al. Case,
supra, para. 207. [49]
McKenzie et al. Case,
supra,
paras. 208, 212-219, citing Woodson v. North Carolina 49 L Ed
2d 944 (U.S.S.C.); The State v. Makwanyane and McHunu, Judgment,
Case Nº CCT/3/94 (6 June 1995) (Constitutional Court of the
Republic of South Africa); Bachan Singh v. State of Punjab (1980) 2
S.C.C. 475 (Supreme Court of India). See also Baptiste Case,
supra. [50]
Trial transcript pages 89-90. [51]
See similarly McKenzie et al. Case, supra,
para. 234; Baptiste Case, supra,
para. 127. [52]
See similarly McKenzie et al. Case, supra,
para. 235; Baptiste Case, supra,
para. 128. [53]
See similarly McKenzie et al. Case, supra,
para. 237; Baptiste Case, supra,
para. 130. [54]
Rudolph Baptiste
supra, 760-76; Donnason Knights, supra 878-882; and McKenzie et al. Case, supra,
paras. 227-232. [55]
Id., para. 228. [56]
Id. The
Commission reasoned that the right to apply for amnesty, pardon or
commutation of sentence under Article 4(6) of the Convention may be
regarded as similar to the right under Article XXVII of the American
Declaration of every person "to seek and receive" asylum
in foreign territory, in accordance with the laws of each country
and with international agreements, which the Commission has
interpreted, in conjunction with the 1951 Convention Relating to the
Status of Refugees and the 1967 Protocol Relating to the Status of
Refugees, as giving rise to a right under international law of a
person seeking refuge to a hearing in order to determine whether
that person qualifies for refugee status. See
Haitian Center for Human Rights and others v. United States, Case
10.675 (13 March 1997), Annual Report of the IACHR 1996, para. 155.
The Commission also observed that some common law jurisdictions
retaining the death penalty have prescribed procedures through which
condemned prisoners can engage and participate in the amnesty,
pardon or commutation process See
Ohio Constitution, Art. III, s. 2, Ohio Revised Code Ann., s.
2967.07 (1993). See also
Ohio Adult Parole Authority v. Woodward, Court File Nº 96-1769 (25
March 1998)(U.S.S.C.). [57]
Neville Lewis et al. v. The Attorney General of Jamaica and The
Superintendent of St. Catherine District Prison, Privy Council
Appeals Nos. 60 of 1999, 65 of 1999, 69 of 1999 and 10 of 2000 (12
September 2000) (J.C.P.C.), at p. 23. [58]
Id., at 23-24. [59]
Mr. Lallion's affidavit is dated May 6, 1997. [60]
United Nations
Standard Minimum Rules for the Treatment of Prisoners, adopted
August 30, 1955 by the First United Nations Congress on the
Prevention of Crime and the Treatment of Offenders, U.N. Doc.
A/CONF/611, annex I, E.S.C. res. 663C, 24 U.N. ESCOR Supp. (No. 1)
at 11, U.N. Doc. E/3048 (1957), amended E.S.C. res. 2076, 62 U.N.
ESCOR Supp. (No. 1) at 35, U.N. Doc E/5988 (1977). [61]
See similarly European Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment (CPT), Second General
Report on the CPT's Activities Covering the Period 1 January to 31
December 1991, Ref. CPT/Inf. (92) 3 (13 April 1992), paras. 44-50
(criticizing prison conditions involving overcrowding, the absence
of at least one hour of exercise in the open air every day for
prisoners, and the practice of prisoners discharging human waste in
buckets, and stating that the Committee is "particularly
concerned when it finds a combination of overcrowding, poor regime
activities and inadequate access to toilet/washing facilities in the
same establishment. The cumulative effect of such conditions can
prove extremely detrimental to prisoners"). [62]
Article 28 provides that "petitions addressed to the Commission
shall contain the following information: (f) the State the
petitioner considers responsible, by act or omission, for the
violation of any of the human rights recognized in the American
Convention on Human Rights and other applicable instruments, even if
no specific reference is made to the article(s) alleged to have been
violated." [63]
Report Nº 38/00, Case 11.743, IACHR, 721 at 767-769. [64]
Report No. 47/01, Case 12.028, IACHR Annual Report 2000, 841, at
886-888. [65]
See
I/A Court H.R., Exceptions to the Exhaustion of Domestic Remedies
(Arts. 46(1), 46(2)(a) and 46(2)(b) of the American Convention on
Human Rights), Advisory Opinion OC-11/90 of August 10, 1990,
Annual Report 1991, para. 28 (interpreting Article8(1) of the
Convention as follows): For
cases which concern the determination of a person's rights and
obligations of a civil, labor, fiscal or any other nature, article 8
does not specify any minimum guarantees similar to those provided in
Article 8(2) for criminal proceedings. It does, however, provide for
due guarantees; consequently, the individual here also has the right
to the fair hearing provided for in criminal cases. See
also I/A Comm.
H.R., Loren Laroye Riebe Star and others
v. Mexico, Report Nº 49/99 (13 April 1999), Annual
Report 1998, para. 70 (interpreting Article 8(1) in the context of
administrative proceedings leading to the expulsion of foreigners as
requiring certain minimal procedural guarantees, including the
opportunity to be assisted by counsel or other representative,
sufficient time to consider and refute the charges against them and
to seek and adduce corresponding evidence.). [66]
See
similarly Currie
v. Jamaica, Communication Nº 377/1989, U.N.Doc. Nº CCPR/C/50/D/377/1989
(1994), para. 13.4
(concluding that where a convicted person seeking Constitutional
review of irregularities in a criminal trial has not sufficient
means to meet the costs of legal assistance in order to pursue his
Constitutional remedy and where the interests of justice so require,
Article 14(1) of the International Covenant on Civil and Political
Rights required the State to provide legal assistance). [67]
See
Peru Case,
supra, pp. 190-191. [68]
I/A Court
H.R., Exceptions to the Exhaustion of Domestic Remedies, supra,
para. 30. [69]
See
similarly
U.N.H.R.C., William Collins v. Jamaica, Communication Nº
240/1987, U.N. Doc. No. CCPR/C/43/D/240/1987
(1991), para. 7.6
(finding that in capital punishment cases, legal aid should not only
be made available, it should enable counsel to prepare his client's
defense in circumstances that can ensure justice). [70]
Trial transcript pages 70-73, and 82-83. [71]
In some cases from Jamaica, Report Nº 41/00, Case 12.023,, Desmond
Mckenzie, Case Nº 12.044, Andrew Downer y Alphonso Tracey,
Case 12.107, Dwight Fletcher, 12.146, Anthony Rose,
Annual Report of the Inter-American Commission on Human
Rights 1999, Volume II, OEA/Ser.L/V/II.106, Doc. 3 rev. April 13,
2000, at 996. [72]
I/A Comm. H.R., Jorge Luis Bernstein and others, Annual
Report 1997, p. 244, para. 12.
The Commission notes that the Constitution of Jamaica has a
clause which declares that any person who is arrested or detained
"…shall be brought without delay before a court…."
Constitution of Jamaica, 1962, Section 15(2) "Any person who is
arrested or detained shall be informed as soon as reasonably
practicable, in a language which he understands, of the reasons for
his arrest or detention." [emphasis added]
Article 15(3) "Any person who is arrested or detained
(a) for the purpose of bringing him before a court in execution of
the order of a court; or (b) upon reasonable suspicion of his having
committed or being about to commit a criminal offence, and who is
not released, shall be brought
without delay before a court; and if any person arrested or
detained upon reasonable suspicion of his having committed or being
about to commit a criminal offence is not tried
within a reasonable time, then, without prejudice to any further
proceedings which may be brought against him, he shall be released
either unconditionally or upon reasonable conditions, including in
particular such conditions as are reasonably necessary to ensure
that he appears at a later date for trial or for proceedings
preliminary to trial." [emphasis added] [73]
Id., citing I/A Comm. H.R., Second Report on the Situation of Human
Rights in Suriname. OEA/Ser.L/V/II.66, doc. 21/Rev.1, 1985, pages 23
and 24. [74]
Id. at para. 24. [75]
Id., at pp. 247-248. [76]
Peter Grant v. Jamaica, Communication Nº 597/1994, U.N. Doc.
Nº
CCPR/C/56/D/597/1994 (1996). [77]
International Covenant on Civil and Political Rights, 19 Dec. 1966,
999 U.N.T.S. 171, Article 9(3) "Anyone arrested or detained on
a criminal charge shall be brought promptly before a judge or other
officer authorized by law to exercise judicial power and shall be
entitled to trial within a reasonable time or to release.
It shall not be the general rule that persons awaiting trial
shall be detained in custody, but release may be subject to
guarantees to appear for trial, at any other stage of the judicial
proceedings, and, should occasion arise, for execution of the
judgment." [78]
U.N.H.R.C., Paul Kelly v. Jamaica, Communication Nº
253/1987. [79]
Convention for the Protection of Human Rights and Fundamental
Freedoms, E.T.S. Nº 5, (4 November 1950), Article 5(3) (providing
that "[e]veryone arrested or detained in accordance with the
provisions of paragraph 1.c of this article shall be brought
promptly before a judge or other officer authorized by law to
exercise judicial power and shall be entitled to trial within a
reasonable time or to release pending trial. Release may be
conditioned by guarantees to appear for trial"). [80]
Eur. Court H.R., Case of Brogan and Others, Ser. A, vol. 145,
29 Nov. 1988, at para. 58. [81]
Id. at para. 62. [82]
Eur. Court H.R., Case of Koster
v. The Netherlands, Ser. A, Vol. 221, 28 Nov. 1991, at
paras. 24-25. [83]
Jorge Luis Bronstein and others, supra. [84]
Trial transcript pages 70-73, and 82-83 [85]
International Covenant on Civil and Political Rights, Art. 9(3), supra. [86]
European Convention for the Protection of Human Rights and
Fundamental Freedoms, Art. 5(3), supra. |