50.            In each of these cases, the Petitioners have alleged that the delays in bringing the victims to trial were unreasonable.  Cumulatively, they submit that the delay in each case is attributable to the State,[17] and suggest that the evidence in the victims' criminal cases was not particularly complex, as it essentially consisted of the testimony of a limited number of eye-witnesses.  In this regard, the Petitioners reject the State's contention that the delays were attributable to the nature of the cases, and argue that the State has not otherwise offered any adequate explanation for the delays in bringing the victims to trial, which the Petitioners claim are excessive in light of existing international standards.[18]  

51.            The Petitioners in these cases also submit that the delay in trying the victims resulted in prejudice to their cases, by undermining their ability to put forward alibi defenses.  In particular, they argue that the evidence of identification in each case was weak to begin with, and therefore that any delay could only serve to weaken the witness' powers of recall even further.  

52.            In addition, in three of the cases presently under consideration by the Commission, Case Nos. 11.843 (Kevin Mykoo), 11.846 (Milton Montique) and 11.847 (Dalton Daley), the Petitioners allege that the State is responsible for violations of Article 7(5) and 7(6) of the Convention, by reason of the delay in bringing the victims before a judge following their arrests.  In particular, the Petitioners in Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley) claim that the victims in these cases were detained for one month following their arrests prior to being brought before a judicial officer, and the Petitioners in Case Nº 11.843 (Kevin Mykoo) allege that Mr. Mykoo was detained by authorities for four months prior to being brought before a judge.  Cumulatively the Petitioners in these cases argue that according to prevailing international human rights jurisprudence, a person arrested or detained must be brought "promptly" before a judicial officer, and that such delay must not exceed "a few days".[19]  

53.            With respect to Article 7(6) of the Convention, the Petitioners argue that a person deprived of his or her liberty must have recourse to a competent court for the purpose of determining the lawfulness of his or her detention.  In the circumstances of the victims in Case Nos. 11.843 (Kevin Mykoo), 11.846 (Milton Montique), and 11.847 (Dalton Daley), the Petitioners claim that as they were not brought promptly before a judge pursuant to Article 7(5) of the Convention, they were not in due time afforded the opportunity to obtain on their own initiative a decision by a court as to the lawfulness of their detentions, contrary to Article 7(6) of the Convention. 

54.            In response to the State's argument that the victim in Case Nº 11.843 (Kevin Mykoo) should have brought his allegations of prolonged detention to the attention of the magistrate who dealt with his case, the Petitioners argue that the victim was not required to do so, as this would not have afforded him any grounds for relief in domestic courts.  Rather, according to the Petitioners, the victim could only have brought such a claim by way of Constitutional Motion, which the Petitioners claim he could not do because of the absence of legal aid for such proceedings.  

a.             Article 5 - Treatment in and Conditions of Detention  

55.            The Petitioners in each of the four cases that are the subject of this report also allege that the treatment received by the victims while in detention, and/or the conditions in which the victims have been detained by the State, together with the time spent there, constitute violations of each victims' rights under Article 5(1) of the Convention to have his physical, mental and moral integrity respected, as well as the right not to be subjected to cruel, inhuman or degrading punishment or treatment under Article 5(2) of the Convention.  In their observations, the Petitioners provided information as to the general conditions of detention facilities in Jamaica.  The Petitioners also provide information as to the particular conditions of detention experienced by the victims in each of their cases.  Further, the Petitioners in Case Nº 11.823 (Leroy Lamey) allege that the State is responsible for further violations of Article 5 of the Convention, in connection with the reading of two warrants of execution to Mr. Lamey. 

            i.                  Allegations of Fact 

56.            With respect to the conditions of detention facilities in Jamaica generally, the Petitioners refer to reports prepared by various governmental and non-governmental organizations respecting the State's prison conditions.  These include Americas Watch: Prison Conditions in Jamaica (May 1990); Jamaica Prison Ombudsman: Special Report on Prison and Lock Ups (1983); Americas Watch: Death Penalty, Prison Conditions and Police Violence (April 1993); Jamaica Council for Human Rights: A Report on the Role of the Parliamentary Ombudsman in Jamaica (Summer 1994); and Amnesty International: Proposal for an Inquiry into Death and Ill-treatment of Prisoners in St. Catherine's District Prison (December 1993).  These reports include information regarding the physical conditions of the prisons and prisoners, the treatment of prisoners by prison staff, the status of medical, educational and work facilities and programs, and the availability and effectiveness of internal complaint mechanisms in various prisons and lock up facilities in Jamaica. 

57.            According to these reports, conditions of detention facilities in Jamaica are poor, and in many instances fall short of international standards.  According to Americas Watch, for example, the conditions in the prisons and lock-ups in 1993 "continued to be extremely poor and in violation of international standards for as long as Americas Watch has been investigating them." 

58.            The Petitioners cumulatively report that the victims are detained on death row in St. Catherine's District Prison, which was built in the 18^th century and was formerly a slave market.  The Petitioners submit that the victims are locked in cells approximately 8 feet by 5 feet in size, for 23 hours a day, and are deprived of a mattress or other bedding and adequate sanitation.  They also claim that the victims' cells have inadequate ventilation and no electric light.  No or inadequate medical or psychiatric care is provided to prisoners, and the food and water provided for prisoners are below acceptable standards. The Petitioners also state that there are no adequate or effective complaint mechanisms for dealing with prisoners' complaints. 

59.            The Petitioners in all of the cases also provided particulars of the conditions of detention alleged to have been experienced by the victims in these cases, as set out below. 

Leroy Lamey (Case 11.826) 

60.            The Petitioners in Case Nº 11.826 (Leroy Lamey) allege violations of Article 5(1) and 5(2) of the Convention, due to the length and conditions of the victim's detention, as well as the fact that the State read two execution warrants to the victim.  

61.            In particular, in addition to general conditions of the nature described above, the victim claims that he has not eaten regularly during his time in detention, as the food served in prison is often inedible.  He also claims that the State read two warrants of execution to him, one in January 1995 for his execution on January 26, 1995, and the other on May 22, 1997 for his execution on June 10, 1997, as a consequence of which he was subjected to intense mental anguish and prolonged psychological suffering. Contributing to these effects were the circumstances under which the warrants were read, including the fact that the warrants were announced formally and unexpectedly, that the victim was transferred to a condemned cell in an isolated part of the prison adjacent to the gallows, and that he was subjected to various special pre-execution procedures.  In light of these circumstances, the Petitioners contend that the State is responsible for violations of the victims' rights under Article 5(1) and 5(2) of the Convention.  

62.            In response to the State's contention that the alleged victim failed to properly inform the Jamaican Privy Council of his proceedings before international human rights bodies and thereby secure of stay of the issuance of warrants of execution, the Petitioners argue conversely that proper notice had been given to the appropriate State authorities on both occasions of the victim’s intention to petition the Judicial Committee of the Privy Council for Special Leave to Appeal as a Poor Person.  They further argue that in any event, it is the fact of, and not the reason for, the victim's treatment that lies at the heart of his complaint in this respect.  

Kevin Mykoo (Case 11.843) 

63.            In addition to conditions of detention of the general nature described above, the Petitioners in Case Nº 11.843 (Kevin Mykoo) alleged that the State has violated Mr. Mykoo's rights under Article 5(1), 5(2) and 5(4) of the Convention, due to specific instances of ill-treatment he is said to have experienced while in detention.  

64.            In particular, the Petitioners contend that following his arrest, the victim was detained by authorities for questioning, during which time the police subjected the victim to various forms of ill-treatment.  According to the Petitioners, these included an attempt to strangle the victim by putting his head in a car window and raising the window against his neck, threatening to cut off the victim's private parts if he did not answer their questions, beating him with guns, and subjecting him to electric shocks until he signed a confessed statement.  

Milton Montique (Case 11.846) and Dalton Daley (Case 11.847) 

65.            The Petitioners in Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley) make similar and specific claims respecting their condition of detention, which they have supported through affidavits sworn by both of the victims.[20] According to their affidavits, and consistent with the general conditions described above, both of the victims are detained in the "Gibraltar" block of St. Catherine District Prison, in 8 foot by 5 foot cells where they are held in constant solitary confinement.  The lighting in their cells is inadequate, and blocks of concrete serve as their beds, with pieces of foam as mattresses. The victims are provided with buckets to use as toilets, and the cells are not hygienic and are crawling with roaches and other insects.  The water and food are below standard, with the inmates often being fed only flour and rice, and the victims are allowed out of their cells for approximately 45 minutes daily, during which time they must "slop out", wash their clothes, and exercise.  Access to medical attention is also said to be inadequate.  In addition, the victims claim that due to an incident at the prison on March 5, 1997 when prisoners attempted to escape, the death row cells were searched and warders confiscated many of the victims’ personal belongings, even though they were not involved in the attempted escape.  

66.            Finally, the victim in case Nº 11.846 (Milton Montique) claims to have complained to the Superintendent about the treatment that he has received but has received no response, and the victim in Case Nº 11.847 (Dalton Daley) claims that following his arrest, the police threw tear gas into his cell and that the fire brigade had to be called to spray water into his cell in order to clear it. 

ii              Allegations of Law 

67.            With respect to the legal standards that should be considered in determining whether treatment and conditions while in detention violate Article 5 of the Convention, the Petitioners in the cases before the Commission cumulatively rely upon several provisions of the United Nations Standard Minimum Rules for the Treatment of Prisoners. These include Article 10, which states that all accommodation provided for the use of prisoners shall "meet all requirements of health, due regard being paid to climatic conditions and particularly cubic content of air, minimum floor space, lighting, heating and ventilation."[21] 

68.            The Petitioners also cite several comments and decisions of the U.N. Human Rights Committee and the European Court of Human Rights regarding humane treatment in the context of prison conditions.  These include the U.N. Human Rights Committee's General Comments 7(16) and 10(1) regarding states' obligations in providing humane conditions of detention, as well as decisions of the Committee in such cases as De Voituret v. Uruguay, U.N. Doc. A/39/40, in which the Petitioners claim that the Committee found solitary confinement for three months in a cell almost without natural light to violate the detainee's rights.  The Petitioners similarly refer to the Greek Case,[22] in which, according to the Petitioners, the European Commission and Court of Human Rights found that prison conditions may amount to inhuman treatment, where those conditions involve overcrowding, inadequate toilet and sleeping arrangements, inadequate food and recreation, and incommunicado detention.  

69.            Moreover, the Petitioners in Case Nos. 11.843 (Kevin Mykoo), 11.846 (Milton Montique), and 11.847 (Dalton Daley) submit that the detention of the victims in these cases in inhumane and degrading conditions should be considered to render the carrying out of their death sentences unlawful.  In support of this position, the Petitioners rely upon the finding by the Judicial Committee of the Privy Council in the Pratt and Morgan v. Attorney General of Jamaica [1994] 2 A.C. 1 (P.C.) case that prolonged post-conviction detention can render a subsequent execution unlawful. 

70.            In response to the State's contention in Case Nº 11.847 (Dalton Daley) that medical treatment is available to inmates at St. Catherine District Prison, the Petitioners in that case argue that this claim does not meet those aspects of their complaint that relate to such matters as poor food, inadequate sanitation, inhuman housing conditions, and the lack of an effective complaints mechanism for inmates.  The Petitioners also contend that the State's reliance upon its status as a "developing" country to excuse these conditions is not well-found, as in their view the guarantees in the Convention are absolute and cannot depend on economics.  

b.             Article 8(1) and 8(2) - Right to a Fair Trial 

71.            The Petitioners in the four cases within this report argue that the State has violated the rights of the victims in these cases to a fair trial under Article 8 of the Convention, based upon the laws in Jamaica governing communications between death row inmates and their attorneys, which the Petitioners allege are inconsistent with Article 8(2)(c) and (d) of the Convention.  In addition, the Petitioners in Case Nos. 11.843 (Kevin Mykoo), 11.846 (Milton Montique) and 11.847 (Dalton Daley) allege further violations of the victims' rights under Article 8(2)(b), (d) and (e) of the Convention, for the reason that they were kept in custody for prolonged periods before being permitted to consult attorneys.  Finally, the Petitioners in Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley) claim violations of the victims' rights under Article 8(1) and 8(2)(d) of the Convention, due to the purported failure of the victims' attorneys to properly investigate their alibi defenses and call witnesses in support.  

72.            First, the Petitioners in the four cases under consideration allege that Rule 296(4) of the Prison Rules of Jamaica is inconsistent with the victims' rights to access to counsel and to a court under Article 8(2)(c) and (d) of the Convention.  Rule 296(4) reads: 

All visits to prisoners under sentence of death, whether by legal officers or others, shall take place in the sight and hearing of a prison officer, notwithstanding that such visit may be in relation to an appeal. 

73.            The Petitioners rely upon a number of decisions of the European Court of Human Rights, including those in Golder v. U.K. (1980) 1 E.H.R.R. 524 and Campbell and Fell v. U.K. (1984) 7 E.H.R.R., for several propositions.  First, they argue that Article 6(1) of the European Convention on Human Rights, governing the right of access to court, permits restrictions upon an individual's right to access court but only where the limitation pursues a legitimate aim and is proportionate to that objective.  Further, the Petitioners suggest that unimpeded access to a lawyer for the purpose of receiving advice and assistance in connection with the possible institution of legal proceedings is an inseparable part of the right of access to court.  Consequently, the Petitioners claim that a prisoner's right of access to court guaranteed by Article 6(1) is contravened by the application of a general prohibition on privileged oral communications between prisoners and their lawyers prior to the commencement of litigation that is not dependent on specific security considerations. 

74.            Accordingly the Petitioners claim that Rule 296(4) of the Jamaican Prison Rules is drafted in general and absolute terms and applies to all prisoners sentenced to death, irrespective of whether particular security concerns arise.  They further claim that there is nothing inherent in the status of a prisoner as one sentenced to death which gives rise to a need for the imposition of a rule prohibiting privileged communications between solicitor and client.  The Petitioners therefore argue that the State is responsible for further violations of Article 8(2) and (d) of the Convention in respect of the victims. 

75.            The Petitioners in Case Nos. 11.843 (Kevin Mykoo), 11.846 (Milton Montique) and 11.847 (Dalton Daley) also contend that the victims in these cases were held in custody for, respectively, three months, two months, and three months, following their arrests before they were permitted to consult with attorneys, contrary to Article 8(2)(c) and (d) of the Convention.  In support of this contention, the Petitioners rely upon questionnaires prepared by the victims, and cite the decision of the U.N. Human Rights Committee in the case Perdomo and de Lanza v. Uruguay, U.N. Doc. A/35/40, for the proposition that in order to comply with Article 14(3)(b) of the International Covenant on Civil and Political Rights, a defendant must be given access to his or her lawyer.  

76.            Finally, the Petitioners in Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley) allege further violations of Article 8(1) and 8(2)(d) of the Convention, due to the failure of the victims' attorneys to investigate their alibi defenses and to call witnesses in support. 

77.            In particular, the Petitioners contend that the victims had alibis for the night of the murders.  Milton Montique claims that he was at work when he received a telephone call from his brother who wanted to see him in Hannah Town, and that he left work, met his brother in Hannah Town, and went to the Hannah Town Police Station to telephone their brother in Canada.  The Petitioners also argue that Mr. Montique told his state-appointed counsel that he had an alibi for the night of the murders and gave him the names of the witnesses who could verify his movements, but that his attorney failed to investigate the alibi and that no evidence was called in support of it.[23] Consequently, the only evidence in respect of this alibi at trial was the victim's unsworn statement from the dock, which, according to the Petitioners, would not have been given appropriate weight by the jury.  The Petitioners further indicate that in March 1996 they attempted to contact the victim's trial counsel to obtain information concerning the efforts carried out with respect to locating potential witnesses for the victim's defense, but with no result.  

78.            The Petitioners in Case 11.846 (Milton Montique) also indicate that they have since the victim’s trial gathered evidence which suggests that a considerable amount of evidence could have been called in support of the victim's alibi, had his attorney undertaken sufficient inquiries, including: a sworn statement obtained from the victim's brother stating that he and Mr. Montique went to the Hannah Town Police Station to telephone their older brother in Canada; sworn statements from the victim and Mr. Delroy Laing; the evidence of PC Amin, who was not called as a witness at trial, but who, according to Hyacinth Sterling's testimony, said that she must have been mistaken when she identified the victim as the killer because he had seen the victim at the police station on the night of the murders; and a letter to the Petitioners from Dalton Daley's mother and a statement of Paulette Muirhead, indicating that Hyacinth Sterling was not present at the building on Upper Oxford Street on the night of the murders but was staying elsewhere, and thus could not have identified the two defendants, but was only informed of the murders on the following morning.  

79.            The victim in Case 11.846 (Dalton Daley) similarly claims that he left work at 4:30 p.m. on the day of the murder and that on the way home he met his friend Keith Osbourne and bought some cigarettes from one Aunt Dolly at a stand at the corner of Drummond Street and Oxford Street.  He further claims that it took him approximately 1/2 hour to reach his home where he lived with his family and that he spent the evening in his yard, ate at approximately 6:00 p.m., and spent the remainder of the evening watching television with his mother and brothers.  At 8:00 p.m., he claims to have laid down, fell asleep, and woke up at 5:30 or 6:00 a.m. the following day and prepared to go to work. He also claims that he told his lawyer that he wanted to present his alibi and corresponding witnesses to the jury but that, after speaking with his mother, his lawyer told him that he could not run his alibi defense, because the witnesses were family members and therefore the Court would not believe them.[24] 

80.            Based upon these circumstances, the Petitioners argue that the State is responsible for violations of Article 8 of the Convention, and correspondingly Article 4, due to the failure of the victims' court-appointed counsel to investigate their alibis, in that the behavior of their counsel fell below the standards of trial preparation that are internationally recognized as being acceptable.  In support of this proposition, the Petitioners point to the case law of domestic courts, including that of the English Court of Appeal, respecting the duty of counsel to fully investigate any alibi his or her client may have.[25] 

81.            The Petitioners also refer to domestic and international jurisprudence respecting the standards governing the conduct of defense counsel more generally.  They claim in this respect that Article 8(2) of the Convention, like Article 14 of the International Covenant on Civil and Political Rights, prescribe two basic elements concerning the proper administration of justice, a right to equality before the courts, and the right to a fair and public hearing by a proper tribunal.  A fair trial in turn requires, among other things, the effective assistance of counsel.[26] Accordingly, the Petitioners argue that Article 8(2)(d) of the Convention should be read so that if the quality of state-appointed counsel's pre-trial preparation or his or her performance in court results in an unfair trial, then Article 8(1) and 8(2)(d) of the Convention is violated.[27] The Petitioners also note that although certain jurisprudence suggests that a failure by legal aid counsel must be manifest or sufficiently brought to the state's attention, they claim that this is precisely the protection to which the victims are entitled under Article 8(1) and 8(2) of the Convention. 

82.            Based upon these submissions, the Petitioners claim that in the present cases, state-appointed counsel failed to undertake a cardinal line of defense and thereby deprived the victims of the right to pursue all available lines of defense in violation of Article 8, and that, short of not having a lawyer at all, there can have been no more manifest failure to act on instructions and put the victims' defenses to the jury.  The Petitioners also claim in this respect that a clear distinction can be drawn between a decision not to call a particular witness taken after thorough consideration and mature reflection, and a failure to investigate at all, such that the latter conduct "strikes at the irreducible kernel of fairness which is the hallmark of a trial conforming to the standards of the American Convention on Human Rights." 

83.            The Petitioners therefore alleged that the State is responsible for violations of Article 8(1) and 8(2)(d) of the Convention in respect of the victims in these cases.  Further or in the alternative, the Petitioners claim that the actions of counsel deprived the victims' of the right to obtain the attendance or examination of witnesses on their behalf under the same conditions as the witnesses against them, contrary to Article 8(2)(f) of the Convention.  

84.            In response to the State's argument that the victims should have complained to the General Legal Counsel in Jamaica respecting the conduct of their attorneys, the Petitioners claim that this would not have provided the victims with an effective remedy, as that body's powers are limited to administering professional sanctions to lawyers, and therefore that the victims would nevertheless have remained on death row at risk of execution.  

c.             Articles 24 and 25 - Unavailability of Legal Aid for Constitutional Motions  

85.            The Petitioners in the four cases currently under consideration by the Commission argue that the State does not provide legal aid for Constitutional Motions, and that this results in a denial of access to court and a denial of effective remedies, in violation of one or more of Articles 24 and 25 of the Convention.  

86.            More particularly, the Petitioners recognize that Article 25(1) of the Constitution of Jamaica provides individuals with the legal right to bring a Constitutional Motion before the Supreme Court.[28] They argue, however, that there is no practical opportunity for the victims to pursue a Constitutional Motion because the proceedings are extremely expensive and beyond the victims' means, and because no legal aid is available for these motions.  Consequently, the Petitioners submit that the State's failure to provide legal aid for Constitutional Motions denies the victims access to the courts and hence to an effective remedy for violations of the Constitution or of the American Convention.  The Petitioners also submit in this regard that the principle of effective access to courts is even more indispensable in capital cases, where a defendant's life and liberty are at stake. 

87.            In support of their arguments, the Petitioners cite decisions of other international human rights tribunals, such as the decision of the European Court of Human Rights in Airey v. Ireland[29] and the U.N. Human Rights Committee in Curry v. Jamaica,[30] for the proposition that individuals must be guaranteed effective access to courts in fact as well as in law, which may require legal assistance in the provision of legal aid.  The Petitioners claim that the unavailability of legal aid in Jamaica in fact deprives the victims of effective access to the courts, and that the State is responsible for violations of Article 25 of the Convention.  

88.            In response to the State's contention that there is now legislation in Jamaica that provides legal aid for pursuing Constitutional Motions, the Petitioners claim that the fact that there may be legislation before Parliament on legal aid did not assist the victims if they could not take advantage of it, due to the fact that it had not yet been proclaimed in force.  Further in this regard, the Petitioners in Case Nº 11.843 (Kevin Mykoo) invited the Commission to hold the victim's case in abeyance until the legal aid legislation in Jamaica is in force and he accordingly has an opportunity to pursue a Constitutional Motion before domestic courts.  

B.                Position of the State on the Merits 

1.                 Articles 4, 5, 8, 24 and 25 - Mandatory Nature of the Death Penalty and the Prerogative of Mercy 

89.            The State did not make any observations in respect of the issue of the mandatory nature of the death penalty in Jamaica, or the adequacy of the process for exercising the Prerogative of Mercy in Jamaica, in any of the four cases presently under consideration by the Commission.  

2.                 Articles 5, 7, and 8 - Delay in the Victims' Criminal Proceedings 

90.            In response to the allegations of the Petitioners in Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley) that the victims in these cases were not brought to trial within a reasonable time in violation of Articles 7(5) and 8(1) of the Convention, the State contends that, while the 2 1/2 year delay between arrest and trial was "longer than desirable", preliminary inquiries were held during this period in both cases.  The State also rejects the contention that a case involving three murders is simple, but rather that it is expected that more time would have been required to adequately prepare such a case.  

91.            With respect to the allegations in Case Nos. 11.843 (Kevin Mykoo), 11.846 (Milton Montique) and 11.847 (Dalton Daley) that the State delayed in bringing the victims before a judge following their arrests in violation of Articles 7(5) and 7(6) of the Convention, the State denies that Mr. Daley was detained for a period of one month before being brought before a judicial officer, that Mr. Montique was detained for one month before being brought before a judge, or that Mr. Mykoo was detained for four months before being brought before a magistrate.  In respect of the allegation in the latter case, the State further indicated that it had "investigated the applicant's allegations" in reaching its conclusion, and has contended in all of the cases that there is no evidence to support the Petitioners' allegations on these points.  

3.                Articles 4 and 5 - Treatment in and Conditions of Detention  

92.            In relation to the allegations in all four cases that are the subject of this report that the victims' treatment while in detention or their conditions of detention violate Articles 4 and 5 of the Convention, the State provided a number of observations. 

93.            With respect to Case Nº 11.843 (Kevin Mykoo), the State argues in respect of the Petitioners' allegation that the victim was subjected to ill-treatment following his arrest that it was open to the victim to raise these allegations at his preliminary inquiry, his trial or his appeal, and therefore that it is not acceptable for the victim to raise these allegations for the first time before the Commission.  The State also indicates that there is no proof to support these allegations, and that raising them at this late stage calls into question their accuracy.  

94.            With respect to the allegations in the same case, as well as those in Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley), that the conditions and time under which the victims have been held render their death sentences unlawful, the  State contends that in the case Pratt and Morgan v. Attorney General of Jamaica, the Judicial Committee of the Privy Council found that a specific period of time on death row constitutes cruel and inhuman treatment contrary to Article 17 of the Jamaican Constitution, but that this period had not been reached in the victims' cases.  The State also claims in this regard that it cannot be reasonably argued that the victims' detention on death row for more than two years while they exhausted their domestic remedies is excessive.  In the State's view, "[a] line must be drawn where a stay on death row, by itself, cannot be categorized as cruel and inhuman treatment, even if it causes some mental trauma to the individual."[31]  

95.            Specifically in respect of the allegation by the Petitioners in Case Nº 11.826 (Leroy Lamey) that the victim's time in death row and the reading to him of two warrants of execution violated his rights under Article 5 of the Convention, the State denies that these circumstances constitute a breach of the Convention.  In addition to referring to the decision of the Judicial Committee of the Privy Council in Pratt and Morgan, as noted above, the State argues that in light of the judicially-prescribed time periods within which executions must be conducted, there is a need for the State to act quickly in order not to breach its domestic law, and that when prisoners choose not to use, with dispatch, the remedies available to them, "the State must ensure that the law take its course." This, according to the State, was the reason that the warrants of execution were issued.  

96.            In its subsequent observations in this case, the State did not dispute that warrants of execution had been read to the victim on two occasions, or that the victim had on those occasions been moved to a "death cell".  The State argues, however, that although the victim had made applications to human rights organizations, he failed to advise the Jamaican Privy Council, the body responsible for issuing warrants of execution, that he had made those applications.  According to the State, if the Privy Council is not advised of the steps taken by applicants to pursue appellate or other remedies, the State "remains under a duty to issue death warrants and allow the law to take its course." The State further argues that this position is consistent with the requirements of the Judicial Committee of the Privy Council's decision in Pratt and Morgan, and notes that as soon as the Jamaican Privy Council was advised of the victim's applications, it rescinded both of the death warrants.  

97.            Finally, in respect of the allegations in Case Nº 11.847 (Dalton Daley) that the victim's conditions of detention violate Article 5 of the Convention, the State acknowledges that the conditions are "less than ideal", but indicates that there is now a medical doctor on staff at the prison and that prisoners are transported to the Spanish Town Hospital when the need arises.  The State also referred the Commission to its "Report on Conditions in Local Prisons" which, according to the State, identifies the difficulties faced by the State, like other “developing countries”, in improving prison conditions.  The State did not include a copy of this report with its observations.  

4.                Articles 4 and 8 - Right to a Fair Trial 

98.            No observations were received from the State respecting the allegation in these four cases that the State's laws governing communications between death row inmates and their attorneys contravene Article 8(2)(c) and (d) of the Convention. 

99.            With regard to the allegation in Case Nos. 11.843 (Kevin Mykoo), 11.846 (Milton Montique) and 11.847 (Dalton Daley) that the alleged victims in these cases were held in custody for prolonged periods of time before they were permitted to see attorneys, the State, in its observations in Case Nº 11.846 (Milton Montique) denied the allegation on the basis that "[t]here is no evidence to support this allegation." Further, with respect to this point in Case Nº 11.843 (Kevin Mykoo), the State contends that if the victim was held for three months before he was permitted to see an attorney, this would be contrary to the Jamaican Constitution and should have been brought to the attention of the magistrate before whom the victim appeared.  Having failed to do so, the State says that the Petitioners should not be allowed to now raise the issue for the first time before the Commission, and suggests that their delay in arguing the matter also raises questions regarding the accuracy of the allegations. 

        100.            Finally, with respect to the allegation in Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley) that the victims' rights under Article 8(1) and 8(2)(d) of the Convention were violated for the purported failure of their trial attorneys to investigate their clients' alibis and call witnesses in support, the State contends that its responsibility is to appoint competent legal aid counsel to represent persons, and that thereafter, the State cannot be held responsible for the manner in which counsel conducts his case. According to the State, if it is felt that counsel did not conduct a client's case in a professional manner according to established standards, the matter may be referred to the General Legal Council, the professional body responsible for maintaining standards in the legal profession.  The State further indicates that this body is not controlled by the State, and that allegations in a complaint made to this body must be complete and sustainable.  

5.                  Articles 24 and 25 - Unavailability of Legal Aid for Constitutional Motions 

101.            In respect of the Petitioners’ arguments pertaining to the alleged absence of legal aid in Jamaica for Constitutional Motions, the State delivered observations in Case Nos. 11.843 (Kevin Mykoo) and 11.846 (Milton Montique).  In the former case, the State argued in its initial observations that there was a new Legal Aid Act in Jamaica that provides legal aid for Constitutional Motions, and that the victim in that case could avail himself of that remedy.  Subsequent to receiving the Petitioners' response, however, the State indicated in supplementary observations that the Legal Aid Act had been passed by both houses of Parliament and assented to by the Governor General and would come into force on a day appointed by the Minister.  The State also rejected the Petitioners' suggestion that the Commission suspend the proceedings before it in order to await the entry into force of the legislation and indicated that the State would regard any such development as a "stalling tactic".  Finally, in its observations in Case Nº 11.846 (Milton Montique), the State indicated, without further elaboration, that it did not accept that it is a violation of the Convention not to provide legal aid for Constitutional Motions.   

IV.                ANALYSIS 

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

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

(b)      violations of Articles 7(5), 7(6) and 8(1) of the Convention, relating to delays in the victims' criminal proceedings;

(c)      violations of Articles 4 and 5 of the Convention, relating to the victims' treatment and conditions of detention;

(d)      violations of Articles 4, 8(1) and 8(2) of the Convention, relating to the adequacy of time and facilities for preparing the victims' legal defenses and the adequacy of their legal representation;

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

A.                  Standard of Review 

103.            In undertaking its review of the merits of the Petitioners' claims in these cases, the Commission wishes to recall and reiterate the heightened level of scrutiny that it considers applicable in capital punishment cases.  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 the right to life provisions under Article 4, the guarantees of humane treatment under Article 5 and the due process and judicial protections guaranteed under Articles 8 and 25 of the Convention.[31] The Commission will therefore analyze the claims in the four cases presently under review in accordance with this standard of review. 

B.                  Articles 4, 5, 8, and 24 - The Mandatory Death Penalty 

1.                  The Victims have been Sentenced to Mandatory Death Penalties  

          104.            The records in the four cases that are the subject of this report indicate that all of the victims have been convicted of capital murder or multiple non-capital murders and sentenced to death.[33] In each case, the sentence was imposed pursuant to legislation in Jamaica that prescribes the death penalty as the only punishment available when a defendant is found guilty of capital murder, or of two or more non-capital murders committed on the same or a different occasion.  

            105.            More particularly, all of the victims have been convicted of capital murder, or of more than one non-capital murder, under Jamaica's Offences Against the Person Act, as amended by the Offences Against the Person (Amendment) Act, 1992 (hereinafter the “Act”).[34]  Article 2(1) of the Act defines capital murder as follows: 

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

(a) the murder of-

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

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

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

(iv)    any person acting in the execution of his duties, being a person who, for the purpose of carrying out those duties, is vested under the provisions of any law in force for the time being with the same powers, authorities and privileges as are given by law to members of the Jamaica Constabulary Force,

or the murder of any such member of the security forces, correctional officer, judicial officer or person for any reason directly attributable to the nature of his occupation;[35]

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

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

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

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

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

(i) robbery;

(ii) burglary or housebreaking;

(ii) arson in relation to a dwelling house; or

(iv) any sexual offence;

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

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

(ii)      is promised by one  person to another or to a third person at the request or direction of that other person,

as consideration for that other person causing or assisting in causing the death of any person or counselling or procuring any person to do any act causing or assisting in causing that death;

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

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

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

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

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

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

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

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

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

            109.            Accordingly, once the jury found each of the victims in the four cases currently before the Commission guilty of capital or multiple non-capital murders, the death penalty was the only available punishment.  The records in several of the cases illustrate and confirm the mandatory nature of the death penalty for the crime of capital or multiple non-capital murders as it has applied to the victims in these matters.  In Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley), for example, the Judicial Committee of the Privy Council stated as follows in maintaining on appeal the victims' death sentences:  

The only remaining question is the application to this case of the provisions of section 3(1A) of the principal Act as amended.  For the reasons given in this judgment their Lordships consider that Daley was guilty of the non-capital murder of Delores Campbell and that Montique was guilty of the non-capital murder of Juliet Martin and Andrew Blake.  But they were each found guilty of three murders in the same trial.  The trial judge would have been bound therefore to sentence them to death for the non-capital murders which they had committed. It would not have been open to him in this case to have sentenced them, in respect of the murders, to life imprisonment. [emphasis added] 

Their Lordships will therefore humbly advise Her Majesty that these appeals should be allowed to the extent only of substituting, in Daley's case, a verdict of non-capital murder for the jury's verdict of finding him guilty of the capital murder of Delores Campbell, and in Montique's case, verdicts of non-capital murder for the jury's verdicts of finding him guilty of the capital murders of Juliet Martin and Andrew Blake; and that they each should be sentenced to death for their non-capital murders in terms of section 3(1A) of the Offences Against the Person Act 1968 as amended.[36] 

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

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

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

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

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

Provided that-

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

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

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

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

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

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

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

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

   2.     Articles 4, 5 and 8 of the Convention and the Mandatory Death Penalty 

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

            116.            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. 

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

118.            Drawing in part upon the past experience of international human rights bodies, several general principles of interpretation can be identified in respect of the death penalty provisions of international human rights instruments in general, and Article 4 of the Convention in particular.  First, the supervisory bodies of international human rights instruments have subjected the death penalty provisions of their governing instruments to a rule of restrictive interpretation.  In its Advisory Opinion on Restrictions to the Death Penalty under Articles 4(1) and 4(4) of the Convention, for example, the Inter-American Court of Human Rights adopted a restrictive approach to Article 4 of the Convention, finding that “the text of the article as a whole reveals a clear tendency to restrict the scope of this penalty both as far as its imposition and its application are concerned”.[37] 

119.            Other international human rights supervisory bodies have similarly afforded a strict interpretation to the death penalty provisions of human rights treaties.  The U.N. Human Rights Committee has held in the context of Article 6 of the ICCPR, which parallels Article 4 of the Convention in many respects,[38] that the law must strictly control and limit the circumstances in which a person may be deprived of his life by the authorities of the state.[39] The Committee has accordingly determined that the imposition of a sentence of death upon conclusion of a trial in which the provisions of the Covenant have not been respected constitutes, if no further appeal against the sentence is possible, a violation of Article 6 of the Covenant.  Its recommended remedies in such cases have included release[40] and commutation of the death sentence.[41] The U.N. Special Rapporteur on Extra-Judicial, Summary or Arbitrary Executions has likewise emphasized that proceedings leading to the imposition of capital punishment must conform to the highest standards of independence, competence, objectivity and impartiality of judges and juries and other strict requirements of due process.[42] This Commission has also closely scrutinized the circumstances of death penalty cases to ensure strict compliance with the requirements of due process and judicial protection.[43]   

120.            It is also generally recognized that the death penalty is a form of punishment that differs in substance as well as in degree in comparison with other means of punishment.  It is the absolute form of punishment that results in the forfeiture of the most valuable of rights, the right to life and, once implemented, is irrevocable and irreparable.  As the United States Supreme Court has observed, “the penalty of death is qualitatively different from a sentence of imprisonment, however long.  Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two.  Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.”[44] In the Commission's view, the fact that the death penalty is an exceptional form of punishment must also be considered in interpreting Article 4 of the American Convention.  

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

Thus, three types of limitations can be seen to be applicable to States Parties which have not abolished the death penalty.  First, the imposition or application of this sanction is subject to certain procedural requirements whose compliance must be strictly observed and reviewed. Second, the application of the death penalty must be limited to the most serious common crimes not related to political offenses.  Finally, certain considerations involving the person of the defendant, which may bar the imposition or application of the death penalty, must be taken into account.[45] [emphasis added] 

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

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

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

125.            Notwithstanding the prescribed distinction between capital and non-capital murder, it remains the case in Jamaica that the death penalty is imposed in capital and multiple non-capital cases through mandatory sentencing.  In the Commission’s view, three aspects of imposing mandatory death penalties are problematic in the context of a proper interpretation and application of the Convention, even when applied to limited categories of murder.  First, it is well-recognized that the crime of murder, even when defined through categories akin to "capital" and "non-capital" murder, can be perpetrated in the context of a wide variety of mitigating and aggravating circumstances, with varying degrees of gravity and culpability.[46] This conclusion is illustrated by, for example, the broad definition of certain categories of capital murder under Jamaican law, such as murder committed by a person in the course or furtherance of a robbery.[47] Notwithstanding the breadth of circumstances that might fall within these legal definitions, however, the mandatory death penalty seeks to impose capital punishment in all cases of capital and multiple non-capital murders, without distinction, save that provided in respect of pregnant offenders.  It subjects an individual who, for example, commits a capital murder in a impulsive act of passion or anger, to the equivalent and exceptional punishment as an individual who executes a capital murder after careful planning and premeditation.  

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

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

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

129.            Accepted principles of treaty interpretation suggest that sentencing individuals to the death penalty through mandatory sentencing and absent consideration of the individual circumstances of each offender and offense leads to the arbitrary deprivation of life within the meaning of Article 4(1) of the Convention.  Article 31(1) of the Vienna Convention on the Law of Treaties provides that a treaty shall be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.” In this regard, the ordinary meaning of the term “arbitrary” connotes an action or decision that is based on random or convenient selection or choice rather than on reason or nature.[48] The U.N. Human Rights Committee suggested a similar meaning for the term "arbitrary" in the context of Article 6(1) of the ICCPR, in the case of Kindler v. Canada.[49] In that case, the victim, a citizen of the United States, was ordered extradited from Canada to face a possible death sentence in the State of Pennsylvania for a murder conviction.  The Committee ultimately found that Canada did not violate the victim’s right under Article 6(1) of the ICCPR not to be arbitrarily deprived of his life, by extraditing him to the United States without first seeking assurances from the U.S. Government that the death penalty would not be imposed.  In so concluding, the Committee suggested that Canada’s decision not to refuse extradition or to seek assurances, in order not to be considered arbitrary, must be shown to have been based upon a reasoned consideration of the circumstances of Mr. Kindler’s case: 

While States must be mindful of the possibilities for the protection of life when exercising their discretion in the application of extradition treaties, the Committee does not find that the terms of article 6 of the Covenant necessarily require Canada to refuse to extradite or to seek assurances.  The Committee notes that the extradition of Mr. Kindler would have violated Canada’s obligations under article 6 of the Covenant, if the decision to extradite without assurances would have been taken arbitrarily or summarily.  The evidence before the Committee reveals, however, that the Minister of Justice reached a decision after hearing argument in favor of seeking assurances.  The Committee further takes note of the reasons given by Canada not to seek assurances in Mr. Kindler’s case, in particular, the absence of exceptional circumstances, the availability of due process, and the importance of not providing a safe haven for those accused of or found guilty of murder.[50] 

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

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

132.            Similarly, by reason of its compulsory nature, a mandatory death sentence precludes any effective review by a higher court as to the propriety of a sentence of death in the circumstances of a particular case.  As indicated previously, once a mandatory sentence is imposed, all that remains for a higher court to review is whether the defendant was properly found guilty of a crime for which the sentence was mandated.  There is no opportunity for a reviewing tribunal to consider whether the death penalty was an appropriate punishment in the circumstances of the particular offense or offender.  This consequence cannot be reconciled with the fundamental principles of due process under Articles 4 and 8 of the Convention that govern the imposition of the death penalty, which, as the Inter-American Court has recognized, include strict observance and review of the procedural requirements governing the imposition or application of the death penalty.  The absence of effective review further illustrates the arbitrary nature of implementing the death penalty through mandatory sentencing, and leads the Commission to conclude that this practice cannot be reconciled with the terms of Article 4 of the Convention and its underlying principles.  

133.            The Commission is also of the view that imposing the death penalty through mandatory sentencing is not consistent with the terms of Article 5 of the Convention or its underlying principles.  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. 

134.            Among the fundamental principles upon which the American Convention is grounded is the recognition that the rights and freedoms protected thereunder are derived from the attributes of the human personality.[51] From this principle flows the basic requirement underlying the Convention as a whole, and Article 5 in particular, that persons be treated with individual dignity and respect.  Accordingly, Article 5(1) guarantees to each person the right to have his or her physical, mental, and moral integrity respected, and Article 5(2) requires all persons deprived of their liberty to be treated with respect for the inherent dignity of the human person.  These guarantees presuppose that persons protected under the Convention will be regarded and treated as individual human beings, particularly in circumstances in which a State Party proposes to limit or restrict the most basic of the rights and freedoms of an individual, such as the right to liberty.  In the Commission's view, consideration of respect for the inherent dignity and value of individuals is especially crucial when determining whether a person should be deprived of his or her right to life.  

135.            The mandatory imposition of the death penalty, however, has both the intent and the effect of depriving a person of their right to life based solely upon the category of crime for which the offender is found guilty, without regard for the offender’s personal circumstances or the circumstances of the particular offense.  The Commission cannot reconcile the essential respect for the dignity of the individual that underlies Article 5(1) and 5(2) of the Convention, with a system that deprives an individual of the most fundamental of rights without considering whether this exceptional form of punishment is appropriate in the circumstances of the individual’s case. 

136.            Finally, the Commission considers that mandatory death sentences cannot be reconciled with an offender’s right to due process, as provided for in Article 8 of the Convention.  It is well-established that proceedings leading to the imposition of capital punishment must conform to the highest standards of due process.  The due process standards governing accusations of a criminal nature against an individual are prescribed in Article 8(1) and 8(2) of the Convention, and include the right to a hearing before a competent, independent and impartial tribunal, the right of the accused to defend himself or herself, personally or by counsel, and the right to appeal the judgment to a higher court. In addition, as noted previously, Article 4 of the Convention provides that the death penalty should be imposed only for the most serious offenses, and contemplates that certain factors attributable to a particular offender or offense may bar the imposition of the death penalty altogether in the circumstances of a particular case. 

137.            In the Commission’s view, therefore, the due process guarantees under Article 8 of the Convention, when read in conjunction with the requirements of Article 4 of the Convention, presuppose as part of an individual’s defense to a capital charge an opportunity to make submissions and present evidence as to whether a death sentence may not be a permissible or appropriate punishment in the circumstances of his or her case.  This may be on the basis, for example, that the crime for which they have been convicted should be considered a political or related common crime within the meaning of the Convention.  The due process guarantees should also be interpreted to include a right of effective review or appeal from a determination that the death penalty is an appropriate sentence in a given case.  

138.            The mandatory imposition of the death sentence is inherently antithetical to these prerequisites.  By its nature, it precludes any opportunity on the part of the offender to make representations or present evidence as to whether the death penalty is a permissible or appropriate form of punishment, based upon the considerations in Article 4 of the Convention or otherwise.  Again, this is subject to the exception under Article 3(2) to 3(6) of Jamaica's Offences Against the Person Act applicable to pregnant offenders. Also, as noted previously, mandatory sentencing precludes any effective review by a higher court of a decision to sentence an individual to death.  These violations of Article 8 of the Convention in turn compound the arbitrary nature of any deprivation of life perpetrated pursuant to mandatory sentences, contrary to Article 4(1) of the Convention. 

139.            Contrary to the current practice in Jamaica, the Commission considers that imposing the death penalty in a manner which 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 their 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. 

140.            In this regard, as the following discussion of international and domestic jurisdictions will indicate, a principle of law has developed common to those democratic jurisdictions that have retained the death penalty, according to which the death penalty should only be implemented through “individualized” sentencing.  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.  

141.            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.  Consistent with the foregoing discussion, the Commission considers that the high standards of due process and humane treatment under Articles 4, 5 and 8 of the Convention governing the lawful imposition of the death penalty should also be interpreted to require individualized sentencing in death penalty cases.[52] In the Commission’s view, this is consistent with the restrictive interpretation to be afforded to Article 4 of the Convention, and in particular the Inter-American Court’s view that Article 4 of the Convention should be interpreted “as imposing restrictions designed to delimit strictly the scope and application of the death penalty, in order to reduce the application of the penalty to bring about its gradual disappearance.”[53]  

142.            As the Commission noted previously, Jamaica has already considered it appropriate to prescribe in its legislation a mechanism by which a jury may determine whether an individual female offender should be spared the death penalty because she is pregnant.  The Commission therefore considers that the foundation already exists under Jamaican law to extend this mechanism, or to develop a comparable mechanism, to permit a jury to consider other potentially mitigating factors pertaining to an offender in determining whether the death penalty should be imposed in the circumstances of the offender's case.  

143.            In light of the foregoing analysis, the Commission considers that imposing the death penalty through mandatory sentencing, as Jamaica has done in respect of crimes of capital and multiple non-capital murders, 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.  

3.         Individualized Sentencing in Other International and Domestic Jurisdictions 

144.            The experience of other international human rights authorities, as well as the high courts of various common law jurisdictions that have, at least until recently, retained the death penalty, substantiates and reinforces an interpretation of Articles 4, 5, and 8 of the Convention that prohibits mandatory death sentences.  Based upon a study of these various international and domestic jurisdictions, it is the Commission’s view that a common precept has developed whereby the exercise of guided discretion by sentencing authorities to consider potentially mitigating circumstances of individual offenders and offenses is considered to be a condition sine qua non to the imposition of capital punishment in accordance with international human rights standards.  Mitigating circumstances requiring consideration have been determined to include the character and record of the offender, the subjective factors that might have influenced the offender’s conduct, the design and manner of execution of the particular offense, and the possibility of reform and social readaptation of the offender.  

145.            In the case of Lubuto v. Zambia,[54] for example, the victim had received a mandatory sentence of death for armed robbery.  The U.N. Human Rights Committee did not address the question of whether mandatory death penalties per se contravened the International Covenant on Civil and Political Rights (“ICCPR”).  The Committee found, however, that the absence of discretion on the part of a sentencing authority to consider the particular circumstances of an offense in determining whether the death penalty is an appropriate punishment may, in certain circumstances, contravene internationally-prescribed conditions for implementing capital punishment.  In this case, the Committee found that the absence of discretion contravened the requirement under Article 6(2) of the ICCPR[55] that the death penalty be imposed “only for the most serious crimes”.  The Committee concluded: 

Considering that in this case use of firearms did not produce the death or wounding of any person and that the court could not under the law take these elements into account in imposing sentence, the Committee is of the view that the mandatory imposition of the death sentence under these circumstances violates article 6, paragraph 2 of the Covenant. 

146.            The U.N. Special Rapporteur on Extra-Judicial, Summary or Arbitrary Executions has suggested more generally that the due process standards applicable in death penalty proceedings require, inter alia, that all mitigating factors be taken into account in imposing sentence: 

Proceedings leading to the imposition of capital punishment must conform to the highest standards of independence, competence, objectivity and impartiality of judges and juries.  All defendants in capital cases must benefit from the full guarantees for an adequate defense at all stages of the proceedings, including adequate provision for State-funded legal aid by competent defense lawyers.  Defendants must be presumed innocent until their guilt has been proven without leaving any room for reasonable doubt, in application of the highest standards for the gathering and assessment of evidence.  All mitigating factors must be taken into account.  A procedure must be guaranteed in which both factual and legal aspects of the case may be reviewed by a higher tribunal composed of judges other than those who dealt with the case at the first instance.  In addition, the defendant’s right to seek pardon, commutation of sentence or clemency must be guaranteed.[56] [emphasis added] 

147.            The highest courts of various common law jurisdictions in which the death penalty has, at least until recently, been retained have similarly concluded that the rational, humane and fair imposition of the death penalty requires discretion on the part of courts to examine the mitigating circumstances of individual offenders and offenses in sentencing individuals to death.  The United States Supreme Court in the case of Woodson v. State of North Carolina[57] found a mandatory death sentence for first degree murder under the law of North Carolina to violate the Eighth[58] and Fourteenth[59] Amendments to the U.S. Constitution.  North Carolina, like Jamaica, had established distinctions between capital, or first degree, and non-capital, or second degree, murder, and subjected only the former category of murder to the death penalty.[60] The Court nevertheless found North Carolina's law to be unconstitutional.  Among the grounds for the Court’s decision was a finding that the mandatory death penalty did not satisfy a basic constitutional requirement that the process for imposing a sentence of death be rational by incorporating “objective standards” that guide and regularize the process and make it amenable to judicial review.[61] The Court also found that the mandatory death penalty failed to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposing upon him of a sentence of death, and was therefore inconsistent with the fundamental respect for humanity underlying the prohibition of cruel and unusual punishment under the Eighth Amendment.  In respect of the latter ground, the Court made the following compelling observations: 

In Furman, members of the Court acknowledged what cannot be fairly denied–that death is a punishment different from all other sanctions in kind rather than degree.  See 408 US, at 286-291, 33 L Ed 2d 346, 92 S Ct 2726 (Brennan J. concurring); id., at 306, 33 L Ed 2d 346, 92 S Ct 2726 (Stewart, J., concurring).  A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind.  It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.  

This Court has previously recognized that “[f]or the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender.” Pennsylvania ex rel. Sullivan v. Ashe, 302 US 51, 55, 82 L Ed43, 58 S Ct 59 (1937).  Consideration of both the offender and the offense in order to arrive at a just and appropriate sentence has been viewed as a progressive and humanizing development.  See Williams v. New York, 337 US, at 247-249, 93 L Ed 1337, 69 S Ct 1079; Furman v. Georgia, 408 US, at 402-3, 33 L Ed 2d 346, 92 S Ct 2726 (Burger C.J., dissenting).  While the prevailing practice of individualizing sentencing determinations generally reflects simply an enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment, see Trop v. Dulles, 356 US, at 100, 2 L Ed 2d 630, 78 S Ct 590 (plurality opinion), requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death. 

This conclusion rests squarely on the predicate 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.[62] 

148.            In the case of The State v. Makwanyane and McHunu,[63] the Constitutional Court of South Africa struck down the death penalty provision of the Criminal Procedure Act Nº 51[64] as inconsistent with South Africa’s 1993 Constitution.  As part of its analysis, that Court also suggested that the guided discretion provided to South African judges to consider the personal circumstances and subjective factors of a defendant in applying the death penalty satisfied in part the requirement that the death penalty not be imposed arbitrarily or capriciously, and reasoned as follows:[65] 

Basing his argument on the reasons which found favour with the majority of the United States Supreme Court in Furman v. Georgia, Mr. Trengove contended on behalf of the accused that the imprecise language of section 277, and the unbounded discretion vested by it in the Courts, make its provisions unconstitutional.

[. . .]

Under our court system questions of guilt and innocence, and the proper sentence to be imposed on those found guilty of crimes, are not decided by juries.  In capital cases, where it is likely that the death sentence may be imposed, judges sit with two assessors who have an equal vote with the judge on the issue of guilt and on any mitigating or aggravating factors relevant to sentence; but sentencing is the prerogative of the judge alone.  The Criminal Procedure Act allows a full right of appeal of persons sentenced to death, including a right to dispute the sentence without having to establish an irregularity or misdirection on the part of the trial judge.  The Appellate Division is empowered to set the sentence aside if it would not have imposed such a sentence itself, and it has laid down criteria for the exercise of this power by itself and other courts.[66] If the person sentenced to death does not appeal, the Appellate Division is nevertheless required to review the case and to set aside the death sentence if it is of the opinion that it is not a proper sentence.[67]

Mitigating and aggravating factors must be identified by the Court, bearing in mind that the onus is on the State to prove beyond a reasonable doubt the existence of aggravating factors, and to negate beyond a reasonable doubt the presence of any mitigating factors relied upon by the accused.[68] Due regard must be paid to personal circumstances and subjective factors which might have influenced the accused person’s conduct,[69] and these factors must then be weighed up with the main objects of punishment, which have been held to be: deterrence, prevention, reformation, and retribution.[70] In this process “[e]very relevant consideration should receive the most scrupulous care and attention”,[71] and the death sentence should only be imposed in the most exceptional cases, where there is no reasonable prospect of reformation and the objects of punishment would not be properly achieved by any other sentence. [72]

There seems to me to be little difference between the guided discretion required for the death sentence in the United States, and the criteria laid down by the Appellate Division for the imposition of the death sentence.  The fact that the Appellate Division, a court of experienced judges, takes the final decision in all cases is, in my view, more likely to result in consistency of sentencing, than will be the case where sentencing is in the hands of jurors who are offered statutory guidance as to how that discretion should be exercised.[73] 

149.            Similarly, in the case of Bachan Singh v. State of Punjab,[74] the appellant argued  before the Supreme Court of India that section 354(3) of the Indian Criminal Procedure Code of 1973, contravened the requirement under Article 21 of the Indian Constitution that “[n]o person shall be deprived of his life or personal liberty except according to procedure established by law”, because the provision provided judges with too much discretion in determining whether offenders should be sentenced to death.[75] The Indian Supreme Court rejected the appellant’s contention in this regard.  This was in part because, in the Court’s view, it was consistent with the requirements of Article 21 for the legislation to leave the imposition of the death penalty to “the judicial discretion of the Courts which are manned by persons of reason, experience and standing in the profession” who exercise their sentencing discretion “judicially in accordance with well-recognized principles crystallised by judicial decisions directed along the broad contours of legislative policy towards the signposts enacted in section 354(3).”[76] In reaching this conclusion, the Court articulated the following propositions intended to guide judges in India in exercising their sentencing discretion relating to the death penalty: 

(a)      the normal rule is that the offence of murder shall be punished with the sentence of life imprisonment.  The Court can depart from that rule and impose the sentence of death only if there are special reasons for doing so.  Such reasons must be recorded in writing before imposing the death sentence. 

(b)     while considering the question of sentence to be imposed for the offence of murder under section 302, Penal Code, the Court must have regard to every relevant circumstance relating to the crime as well as the criminal.  If the Court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the Court may impose the death sentence.[77]  

150.            The Court also emphasized the crucial role that mitigating factors play in the humane imposition of capital punishment.  The Court stated that the “scope and concept of mitigating factors in the area of the death penalty must receive a liberal and expansive construction by the Courts in accord with the sentencing policy written in section 354(3),” and opined that  

[a] real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality.  That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.[78] 

151.            The experience in other international and domestic jurisdictions therefore suggests that a court must have the discretion to take into account the particular circumstances of an individual offender and offense in determining whether the death penalty can and should be imposed, if the sentencing is to be considered rational, humane and rendered in accordance with the minimum requirements of due process.  The individual circumstances to be considered have been determined to include the character and record of the offender, the subjective factors that might have influenced the offender’s conduct, the design and manner of execution of the particular offense, and the possibility of reform and social readaptation of the offender.  Authorities in these jurisdictions have also suggested that, in order to be exercised in a rational and non-arbitrary manner, the sentencing discretion should be guided by legislative or judicially-prescribed principles and standards, and should be subject to effective judicial review, all with a view to ensuring that the death penalty is imposed in only the most exceptional and appropriate circumstances.  In the Commission's view, these principles should also be considered in interpreting and applying Articles 4, 5 and 8 of the Convention, so as to require individualized sentencing in implementing the death penalty.  To accept any lesser standard would, in the Commission’s view, fail to afford sufficient protection to the most fundamental of rights under the Convention. 

4.            The Cases Before the Commission 

a.            Mandatory Death Penalty 

152.            As indicated previously, the victims in the four cases that are the subject of this Report were convicted of capital murder, or multiple non-capital murders, under Jamaica's Offences Against the Person Act. Murder for the purposes of the Act is defined as the unlawfully killing of another person with the intent to kill or to cause serious bodily injury.[79]   Once an offender is found guilty of capital murder, Article 3(1) of the Act requires a court to impose the death penalty.  Similarly, the death sentence is mandatory for a conviction for multiple non-capital murders as provided for in Article 3(1A) of the Act. With the exception of the pregnancy provisions in Article 3(2) to 3(6) of the Act, there are no provisions in the Act 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.  Upon satisfying the elements of Article 3(1) or 3(1A) of the Act, death is the automatic penalty. 

153.            Consequently, in the cases within this Report, the Commission concludes that once the victims were found guilty of their crimes, the law in Jamaica did not permit a hearing by the courts as to whether the death penalty was a permissible or appropriate penalty for those victims.  There was no opportunity for the trial judge or the jury to consider such factors as the victims’ characters or records, the nature or gravity of the offenses, or the subjective factors that may have motivated the victims’ conduct, in determining whether the death penalty was an appropriate form of punishment.  The victims were likewise precluded from making representations on these matters, which accounts for the absence of evidence of such factors in the records of these cases.  The courts sentenced the victims based solely upon the category of crimes for which they had been found responsible.  

            b.            Prerogative of Mercy 

154.            The Commission is aware of the Governor General's authority under the Constitution of Jamaica to grant a pardon or respite, or to substitute a less severe punishment for that imposed on any person, in death penalty and other cases, on recommendation of the Jamaican Privy Council.  The Commission does not, however, consider that the exercise of the Prerogative of Mercy by the Jamaican Privy Council provides an adequate opportunity consistent with the requirements of Articles 4, 5 and 8 of the Convention for the proper implementation of the death penalty through individualized sentencing.  The authority of the Executive in Jamaica to exercise its Prerogative of Mercy is prescribed in Sections 90 and 91 of the State's Constitution: 

90.(1)  The Governor General may, in Her Majesty's name and on Her Majesty's behalf-

(a)      grant to any person convicted of any offence against the law of Jamaica a pardon, either free or subject to lawful conditions;

(b)      grant to any person a respite, either indefinite or for a specified period, from the execution of any punishment imposed on that person for such an offence;

(c)      substitute a less severe form of punishment for that imposed on any person for such an offence; or

(d)      remit the whole or part of any punishment imposed on any person for such an offence or any penalty or forfeiture otherwise due to the Crown on account of such an offence. 

(2)      In the exercise of the powers conferred on him by this section the Governor-General shall act on the recommendation of the Privy Council. 

91.(1) Where any person has been sentenced to death for an offence against the law of Jamaica, the Governor-General shall cause a written report of the case from the trial judge, together with such other information derived from the record of the case or elsewhere as the Governor-General may require, to be forwarded to the Privy Council so that the Privy Council may advise him in accordance with the provisions of section 90 of this Constitution. 

(2)      The power of requiring information conferred on the Governor-General by subsection (1) of this section shall be exercised by him on the recommendation of the Privy Council or, in any case in which in his judgement the matter is too urgent to admit of such recommendation being obtained by the time within which it may be necessary for him to act, in his discretion.[80]  

206.            Consequently, in respect of all four cases, Case Nos. 11.823 (Leroy Lamey), 11.843 (Kevin Mykoo), 11.846 (Milton Montique) and 11.847 (Dalton Daley), the Commission finds that the conditions of detention to which the victims have been subjected fail to respect the physical, mental and moral integrity of the victims as required under Article 5(1) of the Convention, and, in all of the circumstances, constitute cruel, inhuman or degrading treatment or punishment contrary to Article 5(2) of the Convention. The Commission therefore finds the State responsible for violations of these provisions of the Convention in respect of these victims, in conjunction with the State‘s obligations under Article 1(1) of the Convention. 

207.            Given its conclusions in Part IV.B.4 of this Report that the victims' death sentences contravene Articles 4, 5 and 8 of the Convention, so as to render any subsequent execution unlawful, the Commission does not consider it necessary to determine whether the length of time for which the victims in the cases before it were held in detention, or the victims' conditions of detention, may also render their executions unlawful. 

E.            Articles 4 and 8 - Right to a Fair Trial 

208.            The Petitioners in all of the cases that are the subject of this Report allege violations of Article 8(2) in relation to the law in Jamaica governing communications between death row inmates and their attorneys.  Further, the Petitioners in Case Nos. 11.843 (Kevin Mykoo), 11.846 (Milton Montique) and 11.847 (Dalton Daley) allege that the victims were held for prolonged periods prior to being permitted to see attorneys, in violation of Articles 8(2)(b), (d) and (e) of the Convention.  Finally, the Petitioners in Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley) allege violations of Article 8(1) and 8(2)(d) of the Convention by reason of the failure of the victims' attorneys to investigate and present evidence in support of their claims of alibi. 

209.            The State provided observations on certain of the Petitioners' contentions.  In respect of the Petitioners' allegations in Case Nos. 11.843 (Kevin Mykoo) and 11.846 (Milton Montique) that the victims were held for, respectively, three months and two months prior to being permitted to see an attorney, the State effectively denies these claims, arguing that there is no evidence to support them and, in the case of Mr. Mykoo,  that his failure to raise these claims in the context of his domestic proceedings brings into question the accuracy of these assertions.  With regard to the purported failure on the part of the trial attorneys in Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley) to properly investigate and present alibi defenses, the State argues that, while it is obliged to provide counsel to criminal defendants, it cannot be held accountable for the manner in which such counsel performs his or her duties.  The State also points out that it was open to the victims to complain to the General Legal Council if they believed their representation to be inadequate.  

210.   Article 8(1) and 8(2) of the Convention provide as follows: 

8(1)    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.  

8(2)   Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law.  During the proceedings, every person is entitled, with full equality, to the following minimum guarantees:

(a)      the right of the accused to be assisted without charge by a translator or interpreter, if he does not understand or does not speak the language of the tribunal or court;

(b)      prior notification in detail to the accused of the charges against him;

(c)      adequate time and means for the preparation of his defense;

(d)      the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel;

(e)      the inalienable right to be assisted by counsel provided by the state, paid or not as the domestic law provides, if the accused does not defend himself personally or engage his own counsel within the time period established by law;

(f)      the right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts;

(g)      the right not to be compelled to be a witness against himself or to plead guilty; and

(h)      the right to appeal the judgment to a higher court.  

211.            After carefully reviewing the victims’ allegations and the information in the records before it, the Commission first finds that the claims respecting the Jamaican Prison Rules have not been properly substantiated.  In particular, while the Petitioners have challenged the validity of Jamaican Prison Rule 296(4) generally under the Convention, they have not referred to or substantiated a specific occasion in which this provision has been applied to a particular individual, whether the victims in these cases or otherwise, so as to contravene his or her rights under the Convention.  In this regard, the Commission must point out that its contentious jurisdiction, like that of the Inter-American Court of Human Rights, is intended to protect the rights and freedoms of specific individuals, not to resolve abstract questions.[117] As the Commission has no evidence before it as to the application of Rule 296(4) of the Jamaican Prison Rules in the circumstances of a particular case, it finds no violations of the Convention in this regard.  

212.            With respect to the claims in Case Nos. 11.843 (Kevin Mykoo), 11.946 (Milton Montique) and 11.847 (Dalton Daley) that the victims were the subject of prolonged delays prior to being permitted to see attorneys, the Commission observes that the State has disputed the accuracy of the Petitioners' contentions in this regard in Case Nº 11.843 (Kevin Mykoo), and neither party in this case has presented compelling independent or corroborating documentation or information from which the Commission may determine whether the victim sought access to an attorney following his arrest and, if so, when such access was granted.  As a consequence, the Commission considers that it does not have sufficient information to make a determination as to whether the victim suffered the violation of Article 8 of the Convention in this regard.  

213.            Conversely, in Case 11.846 (Milton Montique) the Commission notes that the Petitioner's claim was supported by an affidavit sworn by the victim, in which he confirmed that he did not see his trial attorneys until two months before his trial.[118] Further, the State delivered no observations respecting this allegation in Case Nº 11.847 (Dalton Daley).  Accordingly, in each of these cases, the Commission finds as matters of fact and based upon the records before it that the victim in Case Nº 11.846 (Milton Montique) was detained for a period of approximately 28 months, from the date of his arrest on April 1, 1992 until two months prior to the commencement of his trial in November 1994, before being permitted to see his trial attorneys, and that the victim in Case Nº 11.847 (Dalton Daley) was kept in custody for three months before he was permitted to contact or see a lawyer. 

214.            With respect to the applicable legal principles, Article 8(2)(d) of the Convention provides that 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 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 at 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.[119] In order for these rights to be effective, a defendant must be provided with an effective 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 their respective counsel.[120]  

215.            In the circumstances of Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley), the Commission considers that, while the time within which a defendant should be given access to an attorney following his or her arrest may depend upon the circumstances of a particular case, delays of the length suffered by the victims are well beyond those which may be considered prima facie reasonable or permissible, and the State has offered no explanation for the delays.[121] As a consequence, the Commission finds that the rights of the victims in Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley) under Article 8(2)(d) and 8(2)(e) of the Convention have been violated, by reason of the delay in permitting them access to attorneys following their arrests and detention by the State.   

216.            With respect to the claims by the Petitioners in Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley) relating to the purported failure of their trial counsel to properly investigate and present the victims' alibi defenses, after carefully considering these claims on the records available, the Commission cannot find the State responsible for violations of the Convention in this regard.  The Commission notes in this connection that the State fulfilled its burden of providing both of the victims in these cases with legal assistance in the course of their criminal proceedings.  In the particular case of the provision of State-funded defense counsel, the Commission considers that it cannot hold the State responsible for actions of which it has no knowledge.  The Commission shares the views of the European Court in this regard, which has observed that, as a consequence of the independence of the legal profession from the State, the conduct of the defense is essentially a matter between the defendant and his counsel, whether counsel be appointed under a legal aid scheme or be privately appointed.[122] As a result, the Commission concludes that the competent national authorities are required under Article 8(2)(c) of the Convention to intervene only if a failure by legal aid counsel to provide effective representation is manifest or sufficiently brought to their attention.[123]  

217.            In the two cases under consideration, however, the records do not suggest that the victims made it known to State officials that they considered their legal representation to be inadequate, prior to or during their trials.  Moreover, in the Commission's view, it is not apparent on the information available that it would have been clear or should have been manifest to the trial judge that the behavior of the victims' attorneys was incompatible with the interests of justice.[124] In the court’s perception, the absence of evidence of an alibi or other defense on the part of the defendants would not necessarily have been regarded as a consequence of negligence on the part of the attorneys, but more probably would have been presumed to be a function of the proper exercise of defense counsels' professional judgment as to the availability or merit of such a defense.  Based upon these considerations, therefore, the Commission does not find violations of the Convention in respect of these allegations.  

218.            Given its conclusions in Part IV.B.4 of this Report that the death sentences imposed on the victims contravene Articles 4, 5 and 8 of the Convention so as to render their executions unlawful, the Commission does not consider it necessary to determine whether the violations of Article 8 determined above may also render the carrying out of the victim's death sentences unlawful contrary to Article 4 of the Convention. 

F.         Articles 8, 24 and 25 – Unavailability of Legal Aid for
            Constitutional Motions  

219.            The Petitioners in the four cases that are the subject of this Report argue that legal aid is not effectively available for Constitutional Motions before the courts in Jamaica, and therefore that the victims have been denied from pursing Constitutional Motions, contrary to their rights under Articles 24 and 25 of the Convention, which 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.  

220.            More particularly, as noted in Part III.A.2.e of this Report, 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 the victims are 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 access to the court and to effective remedies, in fact as well as in law.  

221.            The State delivered responses to these allegations only in Case Nos. 11.843 (Kevin Mykoo) and 11.846 (Milton Montique).  In the latter case, the State expressed the view, without further elaboration, that the Convention does not require it to provide legal aid for Constitutional Motions, and in both cases the State suggested that legislation had recently been enacted in Jamaica, but apparently not yet proclaimed into force, which would extend legal aid to assist individuals in bringing Constitutional Motions.  

222.            Based upon the material before it, the Commission is satisfied that Constitutional Motions dealing with legal issues of the nature raised by the victims in their proceedings before the Commission, such as the right to due process and the adequacy of the victims' conditions of detention, 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 that the State does not provide legal aid to individuals in Jamaica to bring Constitutional Motions, given that the State's Legal Aid Act has not, according to the record in these cases, been proclaimed in force.  Further, the Commission finds, in the absence of allegations or evidence to the contrary, that the victims in the cases at issue are indigent and are therefore not otherwise able to secure legal representation for Constitutional Motions.  

223.            The Commission considers that in the circumstances of the present cases, the State's obligations in respect of legal assistance for Constitutional Motions flow from both Article 8 and Article 25 of the Convention.  In particular, the determination of rights through a Constitutional Motion in the Supreme Court of Jamaica must conform with the requirements of a fair hearing in accordance with Article 8(1) of the Convention.  In the circumstances of the cases before the Commission, the Supreme Court would be called upon to determine whether the victims' criminal convictions violated their rights under the Constitution of Jamaica.  In such cases, the application of a requirement of a fair hearing in the Supreme Court should be consistent with the principles in Article 8(2) of the Convention.[125] 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 cases, the effective unavailability of legal aid has denied the victims the opportunity to challenge the circumstances of their convictions under the Constitution of Jamaica in a fair hearing, and therefore has contravened Article 8(1) in respect of those individuals.[126]      

224.            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.”[127] 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.[128] 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.  

225.            By failing to make legal aid available to the victims to pursue Constitutional Motions in relation to their criminal proceedings, the State has effectively barred recourse for those victims to a competent court or tribunal in Jamaica for protection against acts that potentially violate their 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 as regards the victims in these cases. 

226.            Accordingly, the Commission concludes that the State has failed to respect the rights of the victims in the four cases under consideration in this report, Case Nos. 11.823 (Leroy Lamey), 11.843 (Kevin Mykoo), 11.846 (Milton Montique), and 11.847 (Dalton Daley), under Article 8(1) of the Convention by denying them an opportunity to challenge the circumstances of their convictions under the Constitution of Jamaica in a fair hearing.  The Commission also concludes that the State has failed to provide the victims with 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, and has therefore violated their rights to judicial protection under Article 25 of the Convention.  

227.            In light of the above conclusions, the Commission does not consider it necessary to determine whether the failure of the State to provide legal aid for Constitutional Motions violates Article 24 of the Convention.  

V.         ACTIONS TAKEN SUBSEQUENT TO REPORT Nº 103/00  

228.            The Commission examined this case in the course of its 108^th period of sessions, and on October 16, 2000, adopted Report Nº 103/00, pursuant to Article 50 of the American Convention.  

229.            On October 17, 2000, the Commission transmitted Report Nº 103/00 to the State, and requested that the Government of Jamaica inform the Commission within two months as to the measures adopted to comply with the recommendations made to resolve the situation denounced. 

230.            As of December 17, 2000, the date of expiration of the prescribed two-month period, the Commission had not received a response from the State to Report 103/00. 

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 Nº 103/00, ratifies its conclusions that: 

            231.            The State is responsible for violating the rights of the victims in Case Nos. 11.826 (Leroy Lamey), 11.843 (Kevin Mykoo), 11.846 (Milton Montique) and 11.847 (Dalton Daley) under Articles 4(1), 5(1), 5(2) and 8(1), in conjunction with violations of Article 1(1) of the American Convention, by sentencing these victims to a mandatory death penalty. 

            232.            The State is responsible for violating the rights of the victims in Case Nos. 11.826 (Leroy Lamey), 11.843 (Kevin Mykoo), 11.846 (Milton Montique) and 11.847 (Dalton Daley) under Article 4(6) of the Convention, in conjunction with violations of Article 1(1) of the Convention, by failing to provide these victims with an effective right to apply for amnesty, pardon or commutation of sentence. 

            233.            The State is responsible for violating the rights of the victims in Case Nos. 11.843 (Kevin Mykoo), 11.846 (Milton Montique) and 11.847 (Dalton Daley) under Article 7(5) and 7(6) of the Convention, in conjunction with violations of Article 1(1) of the Convention, by failing to promptly bring the victims before a judge following their arrests, and by failing to ensure their recourse without delay to a competent court to determine the lawfulness of their detention. 

            234.            The State is responsible for violating the rights of the victims in Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley) under Articles 7(5) and 8(1) of the Convention, in conjunction with violations of Article 1(1) of the Convention, by reason of the delays in trying the victims. 

            235.            The State is responsible for violating the rights of the victims in Case Nos. 11.826 (Leroy Lamey), 11.843 (Kevin Mykoo), 11.846 (Milton Montique) and 11.847 (Dalton Daley) under Article 5(1) and 5(2) of the Convention, in conjunction with violations of Article 1(1) of the Convention, by reason of the victims' conditions of detention. 

            236.            The State is responsible for violating the rights of the victims in Case Nos. 11.846 (Milton Montique) and 11.847 (Dalton Daley) under Articles 8(2)(d) and 8(2)(e) in conjunction with violations of Article 1(1) of the Convention, by denying the victims access to legal counsel for prolonged periods following their arrests. 

            237.            The State is responsible for violating the rights of the victims in Case Nos. 11.826 (Leroy Lamey), 11.843 (Kevin Mykoo), 11.846 (Milton Montique) and 11.847 (Dalton Daley) under Articles 8 and 25 of the Convention, in conjunction with violations of Article 1(1) of the Convention, by failing to make legal aid available to these victims to pursue Constitutional Motions. 

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 the victims in the cases that are the subject of this report 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. 

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 victims' rights to humane treatment under Article 5(1) and 5(2) of the Convention, particularly in relation to their conditions of detention, are given effect in Jamaica. 

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. 

VIII.            PUBLICATION  

238.            On February 22, 2001, the Commission transmitted Report Nº 5/01 adopted 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 comply with the Commission's recommendations.  The State failed to present a response within the time limit prescribed by the Commission.  

239.            Based upon the foregoing considerations, and in the absence of a response by the State to Report Nº 5/01, 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 Santiago, Chile, on the 4 day of the month of April, 2001.  (Signed): Claudio Grossman, Chairman;  Juan Mendez, First Vice-Chairman;  Marta Altolaguirre, Second Vice-President;  Hélio Bicudo,  Robert K. Goldman,  Peter Laurie, and  Julio Prado Vallejo, Commissioners.  The concurring opinion of Dr. Hélio Bicudo is included immediately after this report. 

CONCURRING OPINION OF COMMISSIONER HÉLIO BICUDO 

            In the 108th period of sessions I expressed my opinion that the death penalty has been abolished in the inter-American system of human rights. In Case 12.028 (Grenada), concerning the mandatory death sentence imposed on Mr. Donnason Knights, I presented my argument in favor of this understanding. In the present case, although I am in general agreement as to the findings, reasoning and motives of the report, I would like to insist on my position that the death penalty has already been abolished by the evolution of the normative standards of the Inter-American system. For this reason I present the following separate opinion: 

1.            The American Declaration of the Rights and Duties of Man (hereinafter American Declaration), approved at the Ninth International American Conference, which took place in Santa Fe de Bogota in May and June of 1948, affirms that “Every human being has the right to life, liberty and the security of his person” (Article I) and, moreover, that “All persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor” (Article II). 

2.            Article 4 of the American Convention on Human Rights (hereinafter American Convention), approved on November 22, 1969 in San Jose, Costa Rica, states that “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.” 

3.            At the same time, the American Convention, by including the right to personal integrity in the civil and political rights framework, affirms that “No one shall be subjected to torture or to cruel, inhumane, or degrading punishment or treatment.” 

4.            However, death penalty is provided for in the American Convention in its original version. Article 4, Section 2 allows the death penalty to be applied by member states only for the most serious crimes. 

5.            There is a contradiction among the aforementioned articles which repudiate torture, cruel, inhumane or degrading punishment or treatment. 

6.            The American Declaration considers life to be a fundamental right, and the American Convention condemns torture or the imposition of cruel, inhumane or degrading punishment or treatment. The elimination of a life could be deemed torture or cruel, inhumane or degrading punishment or treatment. 

7.            It seems that the tolerance expressed in Article 4, Section 2 of the American Convention reveals the sole adoption of a political position of conciliation between all member states in order to approve a more general article, the one about the right to life.

8.            Before analyzing what it means for some states to retain the death penalty as a part of their legal systems, it is important to note that the Inter-American Convention to Prevent and Punish Torture, signed in Cartagena de Indias, Colombia, on December 9^th, 1985, describes the meaning of torture as follows: “Torture shall be understood to be any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as  personal punishment, as a preventive measure, as a penalty, or for any other purpose” (Article 2). 

9.            Notice that this article addresses torture as a personal punishment or penalty in all circumstances. 

10.            The death penalty brings immeasurable suffering to the individual.  Is it possible to imagine the anguish that the individual feels when he/she is informed of the verdict?  Or the moments leading up to the actual execution?  Would it be possible to evaluate the suffering of those who wait on death row for execution, in some cases for several years?  In the United States, fifteen, sixteen or seventeen year-old minors, who committed homicide and subsequently received the death penalty, wait for fifteen years or longer for their execution.  Is it possible to imagine a fate worse than remaining between hope and despair until the day of execution? 

11.            The OAS member states, by adopting the Convention on Forced Disappearance of Persons, reaffirm that “the true meaning of American solidarity and good neighborliness can be none other than that of consolidating in the Hemisphere, in the framework of democratic institutions, a system of individual freedom and social justice based on respect for essential human rights.” 

12.            It is important to mention that in 1998 and 1999, the United States was the only country in the world known for executing minors under 18 years of age.  To that extent, it is important to note that the United States has accepted the International Covenant on Civil and Political Rights since September 1992, Article 6(5) of which establishes that the death penalty cannot be imposed on minors under 18 years old or on pregnant women.  The U.S. Senate opted to express its reservation to this section at the moment of its ratification but currently there is an international consensus opposed to that reservation based on Article 19(c) of the Vienna Convention on the Law of Treaties. This Convention gives the State the possibility to formulate reservations, but these reservations cannot be incompatible with the object and purpose of the treaty. 

13.            In June 2000, Shaka Sankofa, formerly known as Gary Graham, was convicted in the State of Texas for a crime he committed when he was 17 years old.  He was executed after waiting 19 years on death row, although the Inter-American Commission on Human Rights (hereinafter “IACHR” or “Commission”) had formally presented requests to the American government to suspend the act until the case was decided by the Commission. There were serious doubts regarding whether Shaka Sankofa had really committed the crime.  The U.S. Government did not respond to the Commission’s recommendation but could not escape from the jurisdiction of the IACHR on the protection of human rights, according to the American Declaration.  The Commission thus sent out a press release condemning the U.S. decision, since it was not in accordance with the inter-American system of  protection of human rights.[129] 

14.            The Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (hereinafter Convention of Belem do Pará), approved in Belem do Pará, Brazil, on June 9, 1994, does not allow the imposition of the death penalty on women.  Article 3 states “ Every woman has the right to be free from violence in both the public and private spheres” and Article 4 states that “Every woman has the right to have her life respected”.  Regarding the duties of states, the Convention of Belem do Pará establishes that states should “refrain from engaging in any act or practice of violence against women and ensure that their authorities, officials, personnel, agents, and institutions act in conformity with this obligation”. Therefore, if every woman has the right to life, and the right to be free from violence, and the state is denied the practice of violence against women, it seems that the Convention of Belem do Pará prohibits the application of the death penalty to women. There is no discrimination against men or children.  It cannot be argued that it is “positive discrimination” or “affirmative action”, because it only serves to preserve the inherent rights of the individual.  For instance, pregnant women or women with children are entitled to rights based solely on the fact of their exclusive female condition.  Thus, the same rights cannot be extended to men.  Positive discrimination is usually applied to bring about equality, through temporary and proportional measures, to groups of people that experience de facto inequality.  There is no inequality between men and women with regard to the right to life.  In any case, the imposition of the death penalty is not a proportional measure, as we will see later on.  When it comes to common rights–such as the right to life-we cannot argue positive discrimination.  All persons are equal before the law.  The prohibition of the death penalty for women was based on both the female condition and the human condition. 

15.            Article 24 of the American Convention affirms that all persons are equal before the law, and consequently, they are entitled, without discrimination, to equal protection of the law.  Although that Convention does not define discrimination, the IACHR understands that discrimination includes distinction, exclusion, restriction or preference which has the purpose or effect of nullifying or impairing the recognition of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life (Manual on the Preparation of Reports on Human Rights, International Covenant on Civil and Political Rights, Article 26.) 

16.            It is also important to note that Article 37(a) of the Convention on the Rights of the Child prohibits the imposition of the death penalty on minors under 18 years of age. 

17.            The above-mentioned Convention is considered a universal legal instrument in the area of human rights. (Only the United States and Somalia have failed to ratify it.) 

            18.            Article 37 of the Convention on the Rights of Child states:  “No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.”  

19.            Although the U.S. has not ratified the Convention on the Rights of the Child, it became a signatory to the Convention in February 1995, and has thus accepted its legal obligations.  Article 18 of the Vienna Convention on the Law of Treaties establishes that the States that have signed a treaty, but not ratified it, shall refrain from engaging in any act that is contrary to its purpose until it has decided to announce its intention of not becoming part of that treaty.  Despite the fact that the U.S. has not ratified the Convention, the U.S. State Department has already recognized that the Vienna Convention on the Law of Treaties serves as a precedent for international treaty proceedings.  The U.S. State Department considers the Convention a declaration of customary law based on the Vienna Convention on the Law of Treaties, which establishes the importance of treaties as sources of international law as well as a method of peaceful development and cooperation between nations, no matter what their Constitutions and social systems entail. 

20.            As mentioned above, the imposition of the death penalty against women, is not a case in which positive discrimination could be applied because Article 37(a) of the Convention on the Rights of the Child aims to preserve rights that are created not only for children  but for all human beings. 

21.            If that is the case, then Article 4 of the American Convention has lost its previous meaning.  Therefore states that have signed and ratified it as well as other international instruments cannot impose the death penalty upon any person, regardless of gender or any other personal condition. 

22.            The issue will be examined under legal hermeneutics of positive law. International law presupposes [normative] dispositions that are above [the] State [law]. As set forth by the illustrious Italian jurist, Norberto Bobbio, universalism–which international law attempts to embody–reappears today, specially after the end of WWII and the creation of the UN, no longer as a belief in an eternal natural law [order], but as the will to constitute, in the end, a single body of positive law of the social and historical development (as natural law and the state of nature). He also ponders that the idea of the single global State is the final limit of the idea of the contemporary juridical universalism, that is the establishment of a universal positive law (Cf. Teoria do Ordenamento Jurídico, Universidade de Brasília, 1991, p. 164). 

23.            In the present case, we cannot allow a previous law with the same content of a new law to supersede the new law.  That would be considered as antinomy, and therefore it has to be solved. What are the rules that should prevail? There is no doubt that they are incompatible. But how could we solve the problem? 

24.            According to Mr. Bobbio, the criteria to solve an antinomy are the following: a) chronological criteria, b) hierarchical criteria, c) specialty criteria.[14] 

25.            According to the chronological criteria the new law prevails over the previous law–lex posteriori derogat priori. According to the hierarchy criteria, international law prevails over national law. Lastly, the specialty criteria could also apply in this case, since it is a specific law with a specific purpose. 

26.            It is impossible to argue that death penalty as described in the Section 2 of Article 4 of the American Convention is a specific law as opposed to general law of the right to life.  It is also not possible to accept the idea that death penalty is considered a particular penalty that does not entail a violation of right to life or torture or any other cruel or inhumane treatment. 

27.            The Inter-American Court of Human Rights affirms that the imposition of restrictions on the death penalty should be effected by setting up a limit through an irreversible and gradual process, which would be applied both in countries that have not abolished the death penalty and in those that have done so. (Advisory Opinion – OC-3/83) 

28.            The Court also understands that the American Convention is progressive to the extent that, without deciding to abolish the death penalty, it adopts certain measures to limit it and diminish its application until it is no longer applicable. 

29.            It is worth reviewing the preparatory work of the American Convention that illustrates the interpretation of Article 4. The proposal to outlaw the death penalty made by several delegations did not receive any opposing vote, despite the fact that the majority of votes had not been reached. The development of negotiations in the Conference can be reviewed in the following declaration presented before the Plenary Session of Completion and signed by 14 of 19 participants (Argentina, Costa Rica, Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Uruguay and Venezuela): 

The delegations that sign below, participants of the Specialized Inter-American Conference on Human Rights, taking into consideration the highly prevailing feeling, expressed in the course of the debates on the abolishment of the death penalty, in accordance with the purest humanistic traditions of our peoples, solemnly declare our firm aspiration of seeing the application of the death penalty in the American context eradicated as of now, and our indeclinable purpose of effecting all possible efforts so that, in the short term, an additional protocol to the American Convention on Human Rights “Pact of San Jose, Costa Rica” might be adopted, consecrating the definitive abolition of the death penalty, and putting America once more in the forefront  of the protection of fundamental human rights. (author’s translation from the original in Spanish, Acts and documents, OAS-serv. K-XVI-I2, Washington – DC, 1973, hereafter Acts and Documents, repr. 1978, Spanish version, p. 161, 195, 296 and 449/441). 

30.            In agreement with these assertions, the Commission’s Rapporteur made clear, on this article, his firm tendency towards the abolition of this penalty. (Acts and documents, supra, n.296) 

31.            Moreover, the rule of law (Estado de derecho) implies, when punishment is imposed, the knowledge of what the penalty actually means. When the purpose of the punishment applied is not only retribution, but the recuperation or rehabilitation of the convict, he or she knows what will happen in his or her future. If the punishment is purely retributive, as in a sentence imposing imprisonment for life, the convict still envisages his future. But if the convict is sentenced to death, the State does not point to what the elimination of his being will bring him. Science, with all its developments, has not managed, up to now, to unveil the after-death: future life, with prize or punishment? Pure and simple elimination? 

32.            In this sense, the rule of law forbids the imposition of a penalty whose consequences cannot be unveiled.  

33.            In truth, all punishment enacted by the legislator constitutes species of sanctions, distributed according to a rational scale that attempts to take into consideration a series of factors specific to each hypothesis of unlawfulness. 

34.            The right and obligation to punish which belongs to the State expresses itself in a variety of figures and measures, according to gradual solutions, measurable in money or in amounts of time. This gradual order is essential to criminal justice, for it would not be realized without a superior criterion of equality and proportionality in the distribution of punishment, for transgressors would then receive more than their just deserts. 

35.            With the imposition of the death penalty, however, the aforementioned serial harmony is abruptly and violently shattered; one jumps from the temporal sphere into the non-time of death. 

36.            With what objective criterion or with what rational measure (for ratio means reason and measure) does one shift from a penalty of 30 years imprisonment or a life sentence to a death penalty? Where and how is proportion maintained? What is the scale that ensures proportionality? 

37.            It could be argued that there is also a qualitative difference between a fine and detention, but the calculus of the former can be reduced to chronological criteria, being determined, for instance, in terms of work days lost, so that it has a meaning of punishment and suffering to the perpetrator, linked to his patrimonial situation. In any circumstance, these are rational criteria of convenience, susceptible to contrast with experience, that govern the passage from one type of punishment to the other, whereas the notion of “proportion” is submerged in the face of death. 

38.            Summing up, the option for the death penalty is of such order that, as Simmel affirmed, it emphasizes all contents of the human life, and it could be said that it is inseparable from a halo of enigma and mystery, of shadows that cannot be dissipated by the light of reason: to attempt to fit it into the scheme of penal solutions is equal to depriving it from its essential meaning to reduce it to the violent physical degradation of a body (quoted by Miguel Reale, in O Direito como experiencia). 

39.            Hence, the conclusion of the eminent philosopher and jurist Miguel Reale: Analyzed according to its semantic values, the concept of punishment and the concept of death are logically and ontologically impossible to reconcile and that, therefore the “death penalty” is a “contradictio in terminis” (cf. O Direito como Experiencia, 2^nd edition, Saraiva, São Paulo, Brazil) 

40.            The jurist Hector Faundez Ledesma writes on this topic: “as the rights consecrated in the Convention are minimum rights, it cannot restrict their exercise in a larger measure than the one permitted by other international instruments. Therefore, any other international obligation assumed by the State in other international instruments on human rights is of utmost importance, and its coexistence with the obligations derived from the Convention must be taken into consideration insofar as it might be more favorable to the individual.”  

41.            “The same understanding”, continues the jurist, “is extensive to any other conventional provision that protects the individual in a more favorable way, be it contained in a bilateral or multilateral treaty, and independently of its main purpose” (El Sistema Interamericano de Protección de los Derechos Humanos, 1996, pp. 92-93). 

42.            Moreover, Article 29(b) of the American Convention establishes, in the same line of thought, that no disposition of the Convention may be interpreted in the sense of “restricting the enjoyment or exercise of any right or freedom recognized by the virtue of the laws of any State Party”. In this sense, it is opportune to refer to the IACHR report on Suriname, and the Advisory Opinions 8 and 9 (of the Inter-American Court on Human Rights, 1987) 

            43.            On this opportunity, the IACHR affirmed that the prohibition of imposing the death penalty in cases where the offender was a minor at the time of the crime was an emerging principle of international law. Twelve years later there is no doubt that this principle is totally consolidated. The ratification of the Convention on the Rights of the child by 192 States, where the death penalty of minor offenders is prohibited, is a irrefutable proof of the consolidation of the principle (Cf. Report presented by Amnesty international to the IACHR, in Washington, on March 5^th, 1999). 

            44.            It is true that the Universal Declaration on Human Rights does not refer specifically to the prohibition of the death penalty, but consecrates in its Article 3 the right of every person to his life, liberty and security (the same provision can be found on Article I of the American Declaration of the Rights and Duties of Man). Adopted by the General Assembly of the United Nations in 1948, under the guise of a recommendatory resolution, the Universal Declaration is held – by many important scholars – to be a part of the body of international customary law and a binding norm (jus cogens) – as defined in Article 53 of the Vienna Convention on the Law of Treaties. Mutatis Mutandi, it would be lawful to affirm that the Convention on the Rights of the Child, by reason of its breadth and binding character, must also be observed by the only two states that have not ratified it, as has already been said, and has been recognized by the Department of State of the United States of America. 

            45.            It is convenient to observe, furthermore, that the European Court of Human Rights, in its decision in the Soering Case–Jens Soering, born in Germany, in detention in England and submitted to an extradition procedure on behalf of the government of the United States pending charges of murder committed in Virginia, a State that punishes this crime with the death penalty–made opportune comments regarding Article 3 of the European Convention, which establishes the interdiction of torture, inhuman cruel or degrading treatment or punishment. The Court considered that the request could not be granted unless the person subject to extradition would be guaranteed his or her rights under Article 3 of the Convention (cf. Jurisprudence de la Cour europeenne des droits de l’homme, 6^th ed. 1998, Sirey, Paris, pp. 18 and ff.).

            46.            The Court concluded that the extradition to a country that applied the death penalty did not constitute a breach of the right to life or to the right to personal integrity since the death penalty is not, in itself, explicitly prohibited by the European Convention. Nonetheless, the possibility that the condemned could spend years waiting for the moment–totally unpredictable, by the way–of the execution of the punishment, the so called “death row syndrome”, was considered by the Court as constituting a cruel treatment and, therefore, a breach of the right to personal integrity. 

            47.            It is, doubtlessly, an ambiguity: if there is a delay in imposing the penalty, there is violation of the right; if the sentence is carried out immediately, the state’s action will not be considered a breach of the fundamental right to life. 

            48.            This decision gives rise to the conclusion that little by little, the traditional vision, the positivistic application of the law, is being abandoned. Instead of a literal interpretation of the texts in discussion, a teleological hermeneutics is searched, in this case, of the European Convention, to achieve the major conclusion that the death penalty should not be permitted in any hypothesis.  

            49.            Therefore, the absolute prohibition, in the European Convention, of the practice of torture or of inhuman or degrading treatment or punishment shows that Article 3, referred to above, proclaims one of the fundamental values of democratic societies. The judgment underlines that provisions in the same sense can be found in the International Covenant on Civil and Political Rights of 1966, and in the American Convention on Human Rights of 1969, protecting, in all its extension and depth, the right of the human person. The Court concludes that it is an internationally approved norm. 

            50.            It is true that the concept of inhuman or degrading treatment or punishment depends upon a whole set of circumstances. It is not for any other reason that one should have utmost care to ensure the fair balance between the requirements of the communities’ general interest and the higher imperatives of the protection of the fundamental rights of the individual, that take form in the principles inherent to the European Convention taken as a whole. 

            51.            Amnesty International has affirmed that the evolution of the norms in Western Europe concerning the death penalty leads to the conclusion that it is an inhuman punishment, within the meaning of Article 3 of the European Convention. It is in this sense that the judgment of the court in the Soering case should be understood. 

            52.            For its part, the Inter-American Court on Human rights has already affirmed that “The right to life and the guarantee and respect thereof by States cannot be conceived in a restrictive manner. That right does not merely imply that no person may be arbitrarily deprived of his or her life (negative obligation). It also demands of the States that they take all appropriate measures to protect and preserve it (positive obligation).” (Cf. Repertorio de Jurisprudencia del Sistema Interamericano de Derechos Humanos, 1998, Washington College of Law, American University, 1/102). 

            53.            It was for the same reason that the European Court, in the aforementioned Soering decision, considered that “Certainly, ‘the Convention is a living instrument which ... must be interpreted in the light of present-day conditions’; and, in assessing whether a given treatment or punishment is to be regarded as inhuman or degrading for the purposes of Article 3 (art. 3), "the Court cannot but be influenced by the developments and commonly accepted standards in the penal policy of the Member States of the Council of Europe in this field” (par. 102). 

            54.            In fact, to determine whether the death penalty, because of current modifications of both domestic and international law, constitutes a treatment prohibited by Article 3, it is necessary to take into consideration the principles that govern the interpretation of that Convention. In this case, both in the European Convention and in the American Convention, “No one shall be subjected to torture or to inhuman or degrading treatment or punishment” (Article 3 of the European Convention); “No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.” (Article 5(2) of the American Convention on Human Rights). 

            55.            In the same line of thought, in the case between Ireland and the United Kingdom, the European Court had already decided that “The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim's conduct (…) Article 3 (art. 3) makes no provision for exceptions (…)the only relevant concepts are 'torture' and 'inhuman or degrading treatment', to the exclusion of 'inhuman or degrading punishment'.(par. 163-164) 

            56.            More recently, in its Advisory Opinion OC-16, of October 1^st, 1999, requested by Mexico, the Inter-American Court of Human Rights considered it opportune to state that, as regards the right to information about consular assistance, as part of the due process guarantees, that in a previous examination of Article 4 of the American Convention, the Court observed that the application and imposition of capital punishment are governed by the principle that "no one shall be arbitrarily deprived of his life." Both Article 6 of the International Covenant on Civil and Political Rights and Article 4 of the Convention require strict observance of legal procedure and limit application of this penalty to "the most serious crimes." In both instruments, therefore, there is a marked tendency toward restricting application of the death penalty and ultimately abolishing it. (par. 134) 

            57.            Is it reasonable to ask what is still lacking for the universal elimination of the death penalty? Simply the total recognition of the rights emanated from the treaties. 

            58.            In support of this idea, we find the concurring vote, in the above-mentioned Advisory Opinion requested by Mexico, of Judge Cançado Trindade, wherein relevant assertions are made concerning the hermeneutics of law in face of the new protection demands. 

            59.            In his concurring vote, the illustrious international legal scholar and current President of the Court (1999/2001) underlines that “The very emergence and consolidation of the corpus juris of the International Law of Human Rights are due to the reaction of the universal juridical conscience to the recurrent abuses committed against human beings, often warranted by positive law: with that, the Law (el Derecho) came to the encounter of the human being, the ultimate addressee of its norms of protection.” (Concurring vote, par.4)  

            60.            The author of the concurring vote also warns that “In the same sense the case-law of the two international tribunals of human rights in operation to date has oriented itself, as it could not have been otherwise, since human rights treaties are, in fact, living instruments, which accompany the evolution of times and of the social milieu in which the protected rights are exercised” (ibid, par. 10) 

            61.            In this sense the European Court on Human Rights, in its Tyrer vs. United Kingdom Case (1978), when determining the unlawfulness of physical punishment applied to teenagers in the Isle of Man, affirmed that the European Convention on Human Rights is “a living instrument which ... must be interpreted in the light of present-day conditions”. 

            62.            Finally, with the demystification of the postulates of the voluntarist legal positivism, it has become clear that the answer to the problem of the basis and the validity of general international law can only be found in the universal legal consciousness, from the affirmation of an idea of objective justice. 

            63.            Furthermore, in a meeting of representatives of the human rights treaty bodies, it was emphasized that conventional procedures are part of a broad international system of human rights protection, which has–as a basic postulate–the indivisibility of human rights (civil, political, economic, social and cultural). To ensure in practice the universalization of human rights, the meeting recommended the universal ratification, up to the year 2000, of the six core human rights treaties of the United Nations (the two International Covenants of 1966; the conventions on the elimination of racial discrimination and discrimination against women; the UN Convention against Torture; and the Convention on the Rights of the Child), of the three regional conventions on human rights (European, American and African), and the ILO Conventions that concern basic human rights. The representatives at the meeting warned that the non-compliance by the states in respect of their obligation to ratify constituted a breach of conventional international obligations and that the invocation of state immunity, in this context, would result in a “double standard” that would punish the states that duly complied with their obligations. (Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol 1, Fabris Ed. 1997, pp. 199-200) 

            64.            Article 27 of the Vienna Convention on the Law of Treaties of 1969 forbids the invocation of domestic law to justify the non-compliance of an international obligation. Moreover, according to Article 31 of the Vienna Convention: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their contest and in light of its object and purpose”. It follows also that, according to the doctrine of “effet utile”, the interpreter must not deny any term of a normative provision its value in the text: no provision can be interpreted as not having been written.  

            65.            In effect, the Inter-American Court, in its Advisory opinion OC-14/94, has held that: “Pursuant to international law, all obligations imposed by it must be fulfilled in good faith; domestic law may not be invoked to justify nonfulfillment. These rules may be deemed to be general principles of law and have been applied by the Permanent Court of International Justice and the International Court of Justice even in cases involving constitutional provisions [Greco-Bulgarian “Communities”, Advisory Opinion, 1930, P.C.I.J., Series B, Nº 17, p.32; Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in the Danzig Territory, Advisory Opinion, 1932, P.C.I.J., Series A/B, Nº 44, p. 24; Free Zones of Upper Savoy and the District of Gex, Judgment, 1932, P.C.I.J., Series A/B, Nº 46, p. 167; and, I.C.J. Pleadings, Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 (Case of the PLO Mission) (1988) 12, at 31-2, para. 47]. (par.35) 

            66.            In view of the considerations presented here, it can be said that the norm of Article 4, section 2 of the American Convention has been superseded by the aforementioned conventional provisions, following the best hermeneutic of the international law of human rights, with the result that it is prohibitive, for domestic law–even if older than the American Convention–to apply cruel punishment, such as the death penalty. 

            67.            This result also follows from the principle of the international law of human rights that all action must have as its basic goal the protection of victims. 

            68.            In light of these considerations, provisions such as Article 4(2) of the American Convention on Human Rights should be disregarded, in favor of legal instruments that better protect the interests of the victims of violations of human rights. 

Done and signed in the city of Santiago, Chile, on the 4th day of the month of April, 2001.  (Signed): Dr. Hélio Bicudo, Commissioner. 

[1] Section 2(1) of the Act defines "capital murder" as including murder committed against certain persons by virtue of their employment, position or status, for example law enforcement officials and judicial officers. It also includes murder committed in the course or furtherance of certain other crimes, including robbery, burglary, housebreaking, and arson in relation to a dwelling house. Section 2(3) defines non-capital murder as murder not falling within section 2(1) of the Act. The text of these provisions is set out in Part IV.C.1.a of this Report.

  [23] See affidavit of Milton Montique, sworn on December 5, 1997, paras. 3-16.

  [24] See affidavit of Dalton Daley, sworn on December 5, 1997, paras. 3-13.