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5.
Article 8 of the Convention - Right to a Fair Trial
139. The Petitioners have alleged that the State is responsible for violations of Article 8 of the Convention in respect of Mr. Aitken, based upon the adequacy of legal representation provided to him at trial.
140. In particular, the Petitioners allege that according to Mr. Aitken it was very difficult for him to give instructions to his lawyer because the only conferences that he had with his attorney were at Court during the conduct of his trial. The Petitioners also claim that they wrote to Mr. Aitken’s trial attorney on numerous occasions requesting information about the preparation of Mr. Aitken’s defense, but that as of the date of their petition the attorney had not replied.
141. In response, the State contends that it is not responsible for any alleged violations in this regard, because according to the jurisprudence of the UN Human Rights Committee a state cannot be held responsible for any alleged deficiencies in the defense of the accused or alleged errors committed by the defense lawyer unless it was manifest to the trial judge that the lawyer’s behavior was incompatible with the interests of justice.
142.
In addressing this issue, the Commission notes that according to
Article 8(2)(d) of the Convention, every person accused of a criminal
offense has the right to defend himself personally or to be assisted by
legal counsel of his own choosing.
Article 8(2)(e) of the Convention provides every such person the
inalienable right to be assisted by counsel provided by the State, paid
or not paid as the domestic law provides, if the accused does not defend
himself personally or engage his own counsel within the time limit
established by law. Strict
compliance with these and other guarantees of due process are
particularly fundamental in the context of trials involving capital
offenses. The Commission
also considers that these rights apply to all stages of a defendant’s
criminal proceedings, including the preliminary process, if one exists,
leading to his committal for trial, and at all stages of the trial
itself. In order for these
rights to be effective, a defendant must be provided with an opportunity
to retain counsel as soon as reasonably practicable following their
arrest or detention. The
State’s obligations in this regard involve not only making legal aid
available, but facilitating reasonable opportunities for the defendant
to contact and consult with his or her counsel.
[55]
143.
After carefully considering Mr. Aitken’s claims relating to the
effectiveness of the representation by his trial counsel, the Commission
does not find that the Petitioners have adequately substantiated these
allegations. The information available does not suggest, for example,
that Mr. Aitken made it known to State officials prior to or during his
trial that he considered his legal representation to be inadequate, or
that the conduct of Mr. Aitken’s attorney was sufficiently ineffective
that it would have been clear or should have been manifest to the trial
judge that the behavior of Mr. Aitken’s attorney was incompatible with
the interests of justice.
[56]
Based
upon these considerations, the Commission does not find violations of
Articles 4 or 8 of the Convention in respect of this aspect of Mr.
Aitken’s petition.
6. Articles 8, 24 and 25 of the
Convention – Denial of Access to Constitutional Motions
144.
The Petitioners argue that Mr. Aitken does not have the financial
means to pursue a Constitutional Motion in respect of violations of his
rights under the Jamaican Constitution and that legal aid is not
effectively available for Constitutional Motions before the courts in
Jamaica, and therefore that Mr. Aitken has been denied recourse to
domestic protection against acts that violate his fundamental rights
contrary to Articles 24 and Article 25 of the Convention.
These provisions read as follows:
24 All persons are equal
before the law. Consequently,
they are entitled, without discrimination, to equal protection of the
law.
25(1) Everyone has the right to simple and prompt
recourse, or any other effective recourse, to a competent court or
tribunal for protection against acts that violate his fundamental rights
recognized by the constitution or laws of the state concerned or by this
Convention, even though such violation may have been committed by
persons acting in the course of their official duties.
(2) The States
Parties undertake:
(a) To ensure that any
person claiming such remedy shall have his rights determined by the
competent authority provided for by the legal system of the state;
(b) To develop the possibilities of judicial remedy; and
(c) To ensure that the
competent authorities shall enforce such remedies when granted.
145.
More particularly, as noted previously, the Petitioners have
claimed that Constitutional Motions before the domestic courts in
Jamaica often involve sophisticated and complex questions of law which
require the assistance of counsel.
The Petitioners also claim that Mr. Aitken is indigent, and the
State does not provide legal aid to pursue Constitutional Motions in
Jamaica. As a consequence,
the Petitioners allege that the State's failure to provide legal aid in
order to present Constitutional Motions constitutes a denial of Mr.
Aitken’s access to the court and to effective remedies, in fact as
well as in law.
146.
In its response to this contention, the State argues that Article
24 and 25 of the Convention do not place an obligation on State Parties
to provide legal aid for Constitutional Motions.
Rather, the State argues that Article 8(2)(e) of the Convention
only places an obligation on State Parties to provide legal aid for
criminal proceedings, and as a Constitutional Motion is not a criminal
proceeding, the State denies that there has been a breach of the
Convention.
147.
In light of the material before it, the Commission is satisfied
that Constitutional Motions dealing with legal issues of the nature
raised by Mr. Aitken in his proceeding before the Commission such as the
mandatory nature of his death sentence and his right to due process
are procedurally and substantively complex and cannot be
effectively raised or presented by a victim in the absence of legal
representation. The
Commission also finds, in the absence of evidence to the contrary, that
Mr. Aitken lacks the financial means to bring a Constitutional Motion on
his own, and, based upon the observations of both the Petitioners and
the State, that Jamaica does not provide legal aid to individuals in
Jamaica to bring such motions.
148.
Based upon these submissions and the Commission’s existing
jurisprudence, the Commission considers that the State is subject to an
obligation under the American Convention to provide individuals with
effective access to Constitutional Motions, which may in certain
circumstances require the provision of legal assistance.
In particular, the Commission considers that a Constitutional
Motion in the Supreme Court of Jamaica must, as a proceeding for the
determination of an individual’s rights, conform with the requirements
of a fair hearing in accordance with Article 8(1) of the Convention.
Moreover, in the circumstances of the present case where the
Supreme Court would be called upon to determine Mr. Aitken’s rights in
the context of his trial, conviction and sentencing for a criminal
offense, the Commission considers that the requirements of a fair
hearing mandated by Article 8(1) of the Convention should be interpreted
in a manner consistent with the principles in Article 8(2) of the
Convention, including the right under Article 8(2)(e) to the effective
assistance of counsel.
[57]
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. In the present
case, the effective unavailability of legal aid has denied Mr. Aitken
the opportunity to challenge the circumstances of his criminal
conviction under the Constitution of Jamaica in a fair hearing, and
therefore has contravened his right to a fair hearing under Article
8(1).
[58]
149.
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 his or her 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 Article 25, when read
together with the obligation under 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.”
[59]
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.
[60]
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 cases.
150.
By failing to make legal aid available to Mr. Aitken to pursue a
Constitutional Motion in relation to his criminal proceedings, the State
has effectively barred his recourse to a competent court or tribunal in
Jamaica for protection against acts that potentially violate his
fundamental rights under the Constitution of Jamaica and under the
Convention. As a consequence, the State has failed to fulfill its
obligations under Article 25 of the Convention in respect of Mr. Aitken.
151. Accordingly, the Commission concludes that the State has failed to respect Mr. Aitken’s rights under Article 8(1) of the Convention by denying him an opportunity to challenge the circumstances of his trial, conviction and sentencing under the Constitution of Jamaica in a fair hearing. The Commission also concludes under the present circumstances that the State has failed to provide Mr. Aitken with 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 the state concerned or by the Convention, and has therefore violated his rights to judicial protection under Article 25 of the Convention.
152.
In light of the above conclusions, the Commission does not
consider it necessary to determine whether the State is responsible for
a violation of Article 24 of the Convention in relation to Mr. Aitken’s
denial of recourse to a Constitutional Motion in Jamaica.
V.
PROCEEDINGS SUBSEQUENT TO REPORT 117/01
153. The
Commission examined this case in the course of its 113th
regular session and on October 15, 2001 adopted Report N° 117/01
pursuant to Article 50 of the American Convention.
154. On October
25, 2001, the Commission transmitted Report N° 117/01 to the State and
requested that the Government of Jamaica inform the Commission within
two months as to the measures adopted to comply the recommendations made
to resolve the situation denounced.
155. As of December 25, 2001, the date of expiration of the prescribed two-month period, the Commission had not received a response from the State to Report N° 117/01.
156. Of
pertinence to the issues raised in the present case, on June 21, 2002
the Inter-American Court of Human Rights issued its judgment in the Case
of Hilaire, Constantine and Benjamin et
al. v. Trinidad and Tobago.
[61]
In its judgment, the Court found, inter
alia, that the mandatory death penalty under Trinidad and Tobago’s
Offenses Against the Person Act of 1925 violated the victims’ right to
life under Articles 4(1) and 4(2) in conjunction with Article 1(1) of
the Convention, because it “automatically and generically mandates the
application of the death penalty for murder and disregards the fact that
murder may have varying degrees of seriousness,” and “prevents a
judge from considering the basic circumstances in establishing the
degree of culpability and individualizing the sentence since it compels
the indiscriminate imposition of the same punishment for conduct that
can be vastly different.”
[62]
VI. CONCLUSIONS
The Commission, based on the foregoing considerations of fact and law, and in the absence of a response from the State to Report N° 117/01, ratifies its conclusions that:
157. The State is responsible for violating Articles 4(1), 5(1), 5(2) and 8(1) of the Convention in respect of Mr. Aitken, in conjunction with violations of Articles 1(1) and 2 of the Convention, by sentencing him to a mandatory death penalty.
158.
The State is responsible for violating Article 4(6) of the
Convention in respect of Mr. Aitken, in conjunction with violations of
Articles 1(1) and 2 of the Convention, by failing to provide him with an
effective right to apply for amnesty, pardon or commutation of sentence.
159.
The State is responsible for violating Articles 5(1) and 5(2) of
the Convention in respect of Mr. Aitken, in conjunction with violations
of Article 1(1) of the Convention, by reason of his conditions of
detention.
160. The State
is responsible for violating Articles 8(1) and 25 of the Convention in
respect of Mr. Aitken, in conjunction with violations of Article 1(1) of
the Convention, by reason of the denial to Mr. Aitken of recourse to a
Constitutional Motion for the determination of his rights under domestic
law and the Convention in connection with the criminal proceedings
against him.
161. The State
is not responsible for violations of Articles 4 or 8 of the Convention
in connection with the adequacy of his legal representation at trial.
VII.
RECOMMENDATIONS
Based
on the analysis and the conclusions in the present report,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
REITERATES THE FOLLOWING RECOMMENDATIONS TO THE STATE OF JAMAICA:
1.
Grant Mr. Aitken 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 contravention of the
rights and freedoms guaranteed under the Convention, including and in
particular Articles 4, 5 and 8;
3.
Adopt such legislative or other measures as may be necessary to
ensure that the right under Article 4(6) of the Convention to apply for
amnesty, pardon or commutation of sentence is given effect in Jamaica;
4.
Adopt such legislative or other measures as may be necessary to
ensure that the conditions of detention in which Mr. Aitken is held
comply with the standards of humane treatment mandated by Article 5 of
the Convention;
5.
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
Convention and the right to judicial protection under Article 25 of the
Convention are given effect in Jamaica in relation to recourse to
Constitutional Motions in accordance with the Commission’s analysis in
this report.
VIII.
PUBLICATION
162.
On March 18, 2002, the Commission transmitted the content of this
report, adopted as Report Nº 31/02 pursuant to Article 51 of the
Convention, to the State and to the Petitioners pursuant to Article
51(2) of the Convention and granted the State a period of one month
within which to inform the Commission of the measures taken to comply
with the Commission's recommendations. The State failed to present a
response within the time limit prescribed by the Commission.
163. Based upon the foregoing considerations, and in the absence of a response by the State to Report Nº 31/02, the Commission in conformity with Article 51(3) of the American Convention and Article 48 of its Regulations decides to ratify the conclusions and reiterate the recommendations in this Report, to make this Report public, and to include it in its Annual Report to the General Assembly of the Organization of American States. The Commission, according to the norms contained in the instruments which govern its mandate, will continue evaluating the measures adopted by the State of Jamaica with respect to the above recommendations until they have been complied with by Jamaica.
Done and signed in the city of Washington, D.C., U.S.A.,
on the 21st day of the month of October 2002. (Signed): Juan
E. Méndez, President; Marta Altolaguirre, First Vicepresident; José
Zalaquett, Second Vicepresident; Robert K. Goldman, Julio Prado Vallejo,
Clare K. Roberts and Susana Villarán, Commissioners.
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[55]
See McKenzie et al. Case, supra, paras.
304-305.
[56]
See
similarly Eur. Court H.R., Kamasinski v. Austria, 19 December
1989, Series A Nº 168, para. 65; UNHRC, Young v. Jamaica,
Communication Nº 615/1995 (1997). See also McKenzie et al. Case,
supra, para. 301, 302; Lamey et
al. Case, supra, para. 216, 217.
[57]
See
I/A Court H.R., Constitutional Court Case, Judgment of January 31,
2001, Ser. C No. 7, paras. 69, 70 (finding that the minimum guarantees
established under Article 8(2) of the Convention are not limited to
judicial proceedings in a strict sense, but also apply to proceedings
involving the determination of rights and obligations of a civil,
labor, fiscal or other nature.). 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.).
[58]
See
similarly Currie
v. Jamaica, supra, 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).
[59]
See
Case Nº 10.970 (Mejia v. Peru), Annual
Report of the IACHR 1995, pp. 190-191.
[60]
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. 30.
[61]
I/A Court H.R.,
Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago,
Judgment of June 21, 2002, available at <http: //
www.corteidh.or.cr/T_y_t/Serie_c_94_ing.doc>.
[62]
Id.,
para. 103. |