Benjamin et al. Case, Judgment of September 1, 2001, Inter-Am Ct. H.R. (Ser. C) No. 81 (2001).


 

 

In the Benjamin et al. case,

 

the Inter-American Court of Human Rights (hereinafter “the Inter-American Court”, “the Court” or “the Tribunal”), composed of the following judges:

 

            Antônio A. Cançado Trindade, President;

            Máximo Pacheco-Gómez, Vice-President;

            Hernán Salgado-Pesantes, Judge;

            Oliver Jackman, Judge;

            Alirio Abreu-Burelli, Judge;

            Sergio García-Ramírez, Judge; and

            Carlos Vicente de Roux-Rengifo, Judge;

 

also present:

 

            Manuel E. Ventura-Robles, Secretary, and

            Pablo Saavedra-Alessandri, Deputy Secretary;

 

pursuant to Article 36 of its Rules of Procedure[1] (hereinafter “the Rules of Procedure”), delivers the following judgment on the preliminary objection filed by the State of Trinidad and Tobago (hereinafter “the State” or “Trinidad and Tobago”).

 

I

INTRODUCTION OF THE CASE

 

1)         The present case was submitted to the Court by the Inter-American Commission on Human Rights (hereinafter “the Inter-American Commission” or “the Commission”) on October 5, 2000.  The Commission’s application originates from the petitions numbered 12,148 (Peter Benjamin), 12,149 (Krishendath Seepersad), 12,151 (Allan Phillip), 12,152 (Narine Sooklal), 12,153 (Amir Mowlah), 12,156 (Mervyn Parris) and 12,157 (Francis Mansingh), received by its Secretariat between January and May of 1999.

 

II

FACTS SET FORTH IN THE APPLICATION

 

2)         The Inter-American Commission set forth in its application the facts on which it is based.  In the following paragraphs, the Court summarizes the facts and claims relevant to the consideration of the preliminary objection:

 

The State of Trinidad and Tobago is responsible for the violation of the following articles of the American Convention on Human Rights (hereinafter “the American Convention” or “the Convention”) (infra 14):

 

4(1), 5(1), 5(2) and 8(1), for sentencing Peter Benjamin, Krishendath Seepersad, Allan Phillip, Narine Sooklal, Amir Mowlah, Mervyn Parris and Francis Mansingh (hereinafter “the alleged victims”) to a “mandatory death penalty”;

 

4(6), for failing to provide these seven alleged victims with an effective right to apply for amnesty, pardon, or commutation of sentence;

 

7(5) and 8(1), for the delay in the criminal process of six of the alleged victims;

 

25 and 2, for failing to adopt legislative or other measures necessary to give effect to the right of six of the alleged victims to be tried within a reasonable time under Articles 7(5) and 8(1) of the Convention;

 

5(1) and 5(2), for reason of five of the alleged victims’ conditions of detention;

 

5(4), for failing to segregate from convicted persons, save in exceptional circumstances, in the case of one of the alleged victims;

 

5(6), for failing to have as an essential aim of his deprivation of liberty his reform and social readaptation in the case of one of the alleged victims;

 

8(1), for failing to provide one of the alleged victims with a mechanism to be re-evaluated in light of potentially exculpatory evidence;

 

8(2)(d), for reason of the delay in permitting the victim to contact an attorney following his arrest in the case of one of the alleged victims;

 

8 and 25, for failing to make effective legal aid effectively available to two of the alleged victims to pursue constitutional motions in the domestic courts in connection with their criminal proceedings;

 

all in relation to Article 1(1) of the Convention.

 

The Inter-American Commission supports its statements, inter alia, with the following facts:

 

a)                 On October 27, 1997, Mr. Peter Benjamin (case 12,148) was convicted and sentenced to a “mandatory death penalty” by hanging for the murder of Kanhai Deodath;

 

b)                 On May 29, 1998, Mr. Krishendath Seepersad (case 12,149) was convicted and sentenced to a “mandatory death penalty” by hanging for the murder of Shazard Ghany;

 

c)                 On November 17, 1995, Mr. Allan Phillip (case 12,151) was convicted and sentenced to a “mandatory death penalty” by hanging for the murder of Brian Barrow;

 

d)                 On May 24, 1996, Mr. Narine Sooklal (case 12,152) was convicted and sentenced to a “mandatory death penalty” by hanging for the murder of Mobina Ali;

 

e)                 On October 27, 1997, Mr. Amir Mowlah (case 12,153) was convicted and sentenced to a “mandatory death penalty” by hanging for the murder of Shaffina Mowlah;

 

f)                  On February 17, 1995, Mr. Mervyn Parris (case 12,156) was convicted and sentenced to a “mandatory death penalty” by hanging for the murder of Anthony Gittens;

 

g)                 On May 24, 1996, Mr. Francis Mansingh (case 12,157) was convicted and sentenced to a “mandatory death penalty” by hanging for the murder of Mobina Ali;

 

h)                 In all seven cases, the alleged victims were tried by Trinidad and Tobago for the crime of murder, were convicted, and sentenced to death by hanging, under the Offences Against the Person Act. Once an offender is found guilty of murder, section 4 of the said Act “mandates the death penalty”, establishing that “all persons sentenced for murder will suffer death”;

 

i)                   The Offences Against the Person Act provides a definition of “murder”, permits a jury to consider certain circumstances of a killing in determining whether the offender ought to be found guilty of murder or of a lesser offence, mandates the imposition of the death penalty on an offender found guilty of murder, but does not permit a judge or jury to consider the personal circumstances of an offender or his or her offence;

 

j)                   Domestic judicial review proceedings in respect of a criminal conviction may take two forms: a criminal appeal against conviction or a constitutional motion under Section 14 of the Constitution. Article 6 of the Trinidad and Tobago Constitution shields from challenge, under sections 4 and 5 of the Constitution, any claim that a law or any action taken under the authority of any law existing in 1976, the date of commencement of the Constitution, violates the fundamental rights under sections 4 and 5 of the Constitution. This includes any argument that the executive act of carrying out a death sentence pronounced by a court under a law that was in force in 1976 abrogates, abridges or infringes in any way a condemned individual’s Constitutional rights or freedoms;

 

k)                 In addition, section 4 of the Trinidad and Tobago Constitution only guarantees the right to a fair trial, and not a speedy trial, within a reasonable time. Consequently, a lengthy pre-trial delay in a criminal case cannot, in and of itself, raise an issue under the Trinidad and Tobago Constitution, rather, it is simply a factor for the trial judge to take into account when assessing the overall question of fairness;

 

l)                   The Constitution of Trinidad and Tobago provides for an Advisory Committee on the Power of Pardon, which is charged with considering and making recommendations to the Minister of National Security as to whether an offender sentenced to death ought to benefit from the President’s discretionary power of pardon under the said Constitution.  No criteria are prescribed in law for the exercise of the Committee’s functions or the President’s discretion, and the offender has no legal right to make submissions to the Committee to present, receive or challenge evidence the Committee chooses to take into account. The exercise of the power of pardon is an act of clemency that is not matter of legal right, and therefore not subject to judicial review.

 

 

III

PROCEEDING BEFORE THE COMMISSION

 

3)         Between January and May 1999, the Commission received seven petitions from various British law firms (hereinafter “the petitioners”) on behalf of seven alleged victims whose rights were alleged to have been violated by the State.  The Commission began the proceedings of the cases that are the subject of this application on various dates between May and June of 1999, subsequently it opened cases 12,148; 12,149; 12,151; 12,152; 12,153; 12,156 and 12,157, and transmitted the pertinent parts of the petitions to the State, and requested a reply.

 

4)         The Commission received responses from the State in the cases 12,149 (Krishendath Seepersad) and 12,151 (Allan Phillip) on August 6 and 18, 1999, respectively; and in the remaining five cases (12,148; 12,152; 12,153; 12,156 and 12,157) the State did not provide the Commission with any observation respecting the petitions.  In the two cases in which the State delivered a response, the Commission decided to transmit the pertinent parts to the petitioners pursuant to Article 34(7) of its Rules of Procedure and requested their comments.

 

5)         In case 12,149 (Krishendath Seepersad), the petitioners delivered comments on the State’s response.  Further, in case 12,151 (Allan Phillip), the Commission received supplementary materials from the petitioners.  The Commission transmitted the communications to the State, and requested a reply.  The State did not deliver a response to these supplementary materials.

 

6)         On June 13, 2000, the Commission adopted Report No. 53/00, in accordance with Article 50 of the Convention, and transmitted it to the State on July 5 of the same year.  In the report, the Commission determined the admissibility and merits of the seven cases and, in the operative part of the Report, recommended that the State[2]:

 

 

1.                   Grant the victims in Cases Nos. 12,149 (Krishendath Seepersad), 12,151 (Allan Phillip), 12,152 (Narine Sooklal), 12,153 (Amir Mowlah), 12,156 (Mervyn Parris), and 12,157 (Francis Mansingh) an effective remedy which includes commutation of sentence and compensation;

 

2.                   Grant the victim in Case No. 12,148 (Peter Benjamin) an effective remedy which includes a re-trial in accordance with the due process protections prescribed under Article 8 of the Convention or, where a re-trial in compliance with this protection is not possible, the victim’s release;

 

3.                   Adopt such legislative or other measures as may be necessary to ensure that the death penalty is imposed in compliance with the rights and freedoms guaranteed under the Convention, including and in particular Articles 4, 5 and 8;

 

4.                   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 Trinidad and Tobago;

 

5.                   Adopt such legislative or other measures as may be necessary to ensure that the conditions of detention in which the victims in these cases are held comply with the standards of humane treatment mandated by Article 5 of the Convention;

 

6.                   Adopt such legislative or other measures as may be necessary to ensure that the right to trial within a reasonable time and to a fair trial under Articles 7(5) and 8(1) of the Convention is given effect in Trinidad and Tobago, including effective recourse to a competent court or tribunal for protection against acts that violate those rights;

 

7.                   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 Trinidad and Tobago, in relation to recourse to Constitutional Motions.

 

 

7)         The State did not provide the Commission with any response or information on the measures taken to comply with its recommendations.

 

8)         On October 4, 2000, the Inter-American Commission, pursuant to Article 51 of the American Convention, decided to submit the case to the Court.

 

 

 

 

 

IV

PROVISIONAL MEASURES[3]

           

 

9)         On May 25, 1999, prior to the submission of the application, the Commission requested that the Court expand the provisional measures in the matter of James et al. to include in the said provisional measures Messrs. Peter Benjamin, Krishendath Seepersad, Allan Phillip, Narine Sooklal, and Amir Mowlah, among others[4]. The Commission considered that the circumstances were similar to those of the other inmates to whom the existing Order for provisional measures in Trinidad and Tobago applied, because the executions of these persons were imminent and they were therefore vulnerable to irreparable harm.

 

10)       On May 27, 1999, the Court ordered the State, inter alia, to take all measures necessary to preserve the lives of Peter Benjamin, Krishendath Seepersad, Allan Phillip, Narine Sooklal, and Amir Mowlah, so as not to hinder the processing of their cases before the Inter-American System.

 

11)       On June 18, 1999, the Commission transmitted to the Court a request to further expand the provisional measures issued by the Court in the matter James et al. to include Messrs. Mervyn Parris and Francis Mansingh. As in the abovementioned cases (supra 9), the Commission considered that the circumstances were similar to those of the other inmates to whom the existing Order for provisional measures applied in Trinidad and Tobago, because the executions of the said persons were imminent and they were therefore vulnerable to irreparable harm. 

 

12)       On June 19, 1999, the President of the Court (hereinafter “the President”) decided to expand the provisional measures in the matter of James et al. to include Messrs. Mervyn Parris and Francis Mansingh; and requested Trinidad and Tobago to take all measures necessary to preserve their lives, so that the Court could examine the pertinence of the Commission’s request. On September 25, 1999, the Court ratified the President’s Order of June 19, 1999 in relation to Messrs. Mervyn Parris and Francis Mansingh.

 

13)       As of this date, the State has presented the relevant reports with respect to the situation of the persons protected, and the Commission has delivered its observations on the State’s reports.

 

 

 

 

 

V

PROCEEDING BEFORE THE COURT

 

14)       On October 5, 2000, the Inter-American Commission filed its application in the following terms:

 

 

The Inter-American Commission on Human Rights respectfully petitions the Honorable Inter-American Court of Human Rights to declare violations of the Convention by the State, establish reparations for those violations, and determine costs and expenses to be paid to the representatives of the victims.

 

A.      Declarations of violations

 

The Inter-American Commission on Human Rights respectfully petitions the Honorable Inter-American Court of Human Rights to:

 

Find that the Republic of Trinidad and Tobago is responsible for:

 

1)             violating the rights of the victims in Cases Nos. 12,148 (Peter Benjamin), 12,149 (Krishendath Seepersad), 12,151 (Allan Phillip), 12,152 (Narine Sooklal), 12,153 (Amir Mowlah), 12,156 (Mervyn Parris) and 12,157 (Francis Mansingh) under Articles 4(1), 5(1), 5(2) and 8(1) of the American Convention, by sentencing these victims to a mandatory death penalty.

 

2)             violating the rights of the victims in Cases Nos. 12,148 (Peter Benjamin), 12,149 (Krishendath Seepersad), 12,151 (Allan Phillip), 12,152 (Narine Sooklal), 12,153 (Amir Mowlah), 12,156 (Mervyn Parris) and 12,157 (Francis Mansingh) under Article 4(6) of the Convention, in conjunction with the violation 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.

 

3)             violating the rights of the victims in Cases Nos. 12,149 (Krishendath Seepersad), 12,151 (Allan Phillip), 12,152 (Narine Sooklal), 12,153 (Amir Mowlah), 12,156 (Mervyn Parris) and 12,157 (Francis Mansingh) to be tried within a reasonable time and to a fair trial under Articles 7(5) and 8(1) of the Convention, in conjunction with the violation of Article 1(1) of the Convention, by reason of the delays in the victims’ criminal proceedings.

 

4)             violating the rights of the victims in Cases Nos. 12,149 (Krishendath Seepersad), 12,151 (Allan Phillip), 12,152 (Narine Sooklal), 12,153 (Amir Mowlah), 12,156 (Mervyn Parris) and 12,157 (Francis Mansingh) under Article 25 of the Convention, together with the State’s obligations under Article 2 of the Convention, all in conjunction with the violation of Article 1(1) of the Convention, by failing to adopt legislative or other measures necessary to give effect to the right to be tried within a reasonable time under Articles 7(5) and 8(1) of the Convention.

 

5)             violating the rights of the victims in Cases Nos. 12,149 (Krishendath Seepersad), 12,152 (Narine Sooklal), 12,153 (Amir Mowlah), 12,156 (Mervyn Parris) and 12,157 (Francis Mansingh) under Articles 5(1) and 5(2) of the Convention, in conjunction with the violation of Article 1(1) of the Convention, by reason of the victims’ conditions of detention.

 

6)             violating the right of the victim in Case No. 12,157 (Francis Mansingh) under Article 5(4) of the Convention, in conjunction with the violation of Article 1(1) of the Convention, to be segregated from convicted persons, save in exceptional circumstances.

 

7)             violating the right of the victim in Case No. 12,149 (Krishendath Seepersad) under Article 5(6) of the Convention, in conjunction with the violation of Article 1(1) of the Convention, to have as an essential aim of his deprivation his reform and social readaptation.

 

8)             violating the right of the victim in Case No. 12,148 (Peter Benjamin) under Article 8(1) of the Convention, in conjunction with the violation of Article 1(1) of the Convention, by failing to provide the victim with a mechanism for the victim’s conviction to be reevaluated in the light of potentially exculpatory evidence.

 

9)             violating the rights of the victim in Case No. 12,152 (Narine Sookal) under Article 8(2)(d) of the Convention, in conjunction with the violation of Article 1(1) of the Convention, by reason of the delay in permitting the victim to contact an attorney following his arrest.

 

10)           violating the rights of the victims in Cases Nos. 12,153 (Amir Mowlah) and 12,156 (Mervyn Parris) under Articles 8 and 25 of the Convention, in conjunction with the violation of Article 1(1) of the Convention, by failing to make effective legal aid available to these victims to pursue constitutional motions in the domestic courts in connection with their criminal proceedings.

 

 

B.      Reparations

 

The Inter-American Commission on Human Rights respectfully petitions the Honorable Inter-American Court of Human Rights to:

 

Direct that the Republic of Trinidad and Tobago grant the victims in Cases Nos. 12,149 (Krishendath Seepersad), 12,151 (Alan Phillip), 12,152 (Narine Sooklal), 12,153 (Amir Mowlah), 12,156 (Mervyn Parris) and 12,157 (Francis Mansingh) an effective remedy which includes commutation of sentence and compensation;

 

Direct that the Republic of Trinidad and Tobago grant the victim in Case No. 12,148 (Peter Benjamin) an effective remedy which includes a re-trial in accordance with the due process protections prescribed under Article 8 of the Convention or, where a re-trial in compliance with these protections is not possible, the victim’s release;

 

Direct that the Republic of Trinidad and Tobago adopt such legislative or other measures as may be necessary to ensure that the death penalty is imposed in compliance with the rights and freedoms guaranteed under the Convention, including and in particular Articles 4, 5 and 8;

 

Direct that the Republic of Trinidad and Tobago 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 Trinidad and Tobago;

 

Direct that the Republic of Trinidad and Tobago adopt such legislative or other measures as may be necessary to ensure that the conditions of detention in which the victims in these cases are held comply with the standards of humane treatment mandated by Article 5 of the Convention;

 

Direct that the Republic of Trinidad and Tobago adopt such legislative or other measures as may be necessary to ensure that the right to trial within a reasonable time and to a fair trial under Articles 7(5) and 8(1) of the Convention is given effect in Trinidad and Tobago, including effective recourse to a competent court or tribunal for protection against acts that violate those rights;

 

Direct that the Republic of Trinidad and Tobago 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 Trinidad and Tobago in relation to recourse to constitutional motions.

 

C.      Compensation

 

The Commission has requested that the Honorable Court require the State of Trinidad and Tobago to remedy the consequences of the violations which are the subject of this application.

 

Article 63(1) of the American Convention provides:

 

If the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated.  It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party. 

 

This Honorable Court has stated that Article 63(1) of the Convention codifies a rule of customary law and constitutes one of the fundamental principles of customary law (Aloeboetoe Case, Judgment of September 10, 1993, para. 43).  The obligation to repair a breach may give rise to a number of measures to remedy the consequences.  The State must, to the extent possible, reestablish the statu quo ante, which in the present case could be achieved by commuting the complainant’s death sentence and adjusting the domestic law of Trinidad and Tobago accordingly.  Where reestablishing the statu quo ante is no longer possible, the consequences must be remedied through other means.  The Commission therefore seeks to obtain a decision of the Court as to the compensation owing to the victim as a result of the State’s violation of his rights under the Convention.

 

D.      Costs and expenses

 

The Commission seeks a determination from the Court respecting the costs and expenses incurred by the representatives of the victims during the processing of the case before the domestic courts and the organs of the Inter-American system.

 

15)       The Commission appointed Messrs. Robert K. Goldman and Nicholas Blake as delegates, and Messrs. David J. Padilla and Brian D. Tittemore as legal advisors.  The Commission also designated Julian Knowles, Ivan Krolick, Keir Starmer, Saul Lehrfreund, Belinda Moffat, Yasmin Waljee, and James Oury as assistants.

 

16)       On October 19, 2000, the Secretariat of the Court (hereinafter “the Secretariat”), following the preliminary examination of the application by the President of the Court, notified the State of the application and its annexes. On the same date, the Secretariat, following instructions of the President, informed the State of its right to designate an ad hoc judge pursuant to Articles 18 of its Rules of Procedure and 10(3) of the Statute of the Court (hereinafter “the Statute”). 

 

17)       On December 9, 2000, Trinidad and Tobago submitted a preliminary objection to compulsory jurisdiction of the Court in this case.

 

18)       On December 11, 2000, the Secretariat acknowledged receipt of the State’s communication of December 9 of the same year, transmitted to the Commission said communication and informed the parties that the President of the Court, following the precedent of the Constantine et al. case[5], decided to waive the convening of a special hearing on the preliminary objection in the present case.

 

19)       On January 11, 2001, the Commission replied to the State’s brief on preliminary objection, which reply was transmitted to Trinidad and Tobago on January 15, of the same year.

 

20)       On May 7, 2001, the Secretariat received from the Commission copies of two decisions pertinent to cases on the imposition of the “mandatory death penalty”, issued by the United Nations Human Rights Committee and the Court of Appeals for the Eastern Caribbean.  These decisions were transmitted to the State on May 15, 2001.

 

VI

JURISDICTION

 

21)       Trinidad and Tobago deposited its instrument of ratification to the American Convention on May 28, 1991.  On the same date, the State recognized the compulsory jurisdiction of the Court. 

 

22)       On May 26, 1998, Trinidad and Tobago denounced the Convention and pursuant to Article 78 of the same, this denunciation took effect one year later, on May 26, 1999.  The facts, to which the instant case refers, occurred prior to the effective date of the State’s denunciation.  Consequently, the Court has jurisdiction, under the terms of Articles 78(2) and 62(3) of the Convention, to entertain the present case and render a judgment on the State’s preliminary objection.

 

VII

PRELIMINARY OBJECTION:

FAILURE OF THE COMMISSION TO REFER THE CASE TO THE COURT AND OF THE COURT TO “ACCEPT JURISDICTION” WITHIN THE STIPULATED PERIOD AND LACK OF JURISDICTION

 

23)       In its preliminary objection, Trinidad and Tobago sustained that the Inter-American Court does not have jurisdiction to hear the case in light of three main arguments:

 

I)             The Commission did not refer the case to the Court and the Court did not accept jurisdiction of the case within the three-month period stipulated under Article 51 of the American Convention on Human Rights.

 

II)           The State’s second reservation precludes any jurisdiction of the Court in this case.

 

III)          Alternatively, the State has never recognized the jurisdiction of the Court.

 

24)       The Court will now consider the arguments presented by the State in the case sub judice.

 

 

A.        FAILURE OF THE COMMISSION TO REFER THE CASE TO THE COURT AND OF THE COURT TO “ACCEPT JURISDICTION” WITHIN THE STIPULATED PERIOD

 

 

Arguments of the State

 

25)       The State alleged that Article 51(1) of the Convention requires that, for the Court to have jurisdiction, not only must the Commission’s Report have been submitted to the Court within three months of the date of transmittal of the said Report to the State concerned, but that the Court must also have accepted jurisdiction in respect of the matter within the three month period.

 

26)       In this regard, the State noted that Article 51(1) of the Convention provides that

 

[i]f, within a period of three months from the date of the transmittal of the report of the Commission to the states concerned, the matter has not either been settled or submitted by the Commission or by the state concerned to the Court and its jurisdiction accepted, the Commission may, by the vote of an absolute majority of its members, set forth its opinion and conclusions concerning the question submitted for its consideration.  (emphasis added)

 

27)       Trinidad and Tobago maintained that the Confidential Report No. 53/00, issued pursuant to Article 50 of the Convention, was submitted to the State on July 5, 2000. Consequently, the three-month time period stipulated in Article 51(1) expired on October 4 of the same year, and the Court should therefore have accepted jurisdiction on the matter before that date. However, the Commission referred the case to the Court on October 5, 2000, and it “accepted jurisdiction” on October 19, the same year.

 

 

Arguments of the Commission

 

28)       The Commission contended that the practice and case law of the Court establish that the three-month period in Article 51(1) of the Convention should be calculated based on the Gregorian Calendar month; that is to say, from the date of the referral to the State of the Commission’s Report pursuant to Article 50, to midnight on the same date three months after; and not, as the State alleged, on the basis of 90 calendar days.   

 

29)       The Commission indicated that the State acknowledged that the Commission transmitted its Report No. 53/00 under Article 50 of the Convention on July 5, 2000, and subsequently referred the application to the Court on October 5, of the same year.  Based on these facts, uncontested by the State, the Commission submitted that it properly complied with the three-month period stipulated in Article 51(1) of the Convention, as interpreted by the Court, when it submitted the Benjamin et al. case to the Court.

 

30)       The Commission also stated that the phrase “its jurisdiction accepted” in Article 51(1) of the Convention cannot be interpreted so as to require the Court to make an express act of acceptance of jurisdiction in each application, much less to require it to do so within the three-month period prescribed in the article.

 

31)       The Commission argued that the interpretation of Article 51(1) of the Convention advocated by the State would not accord with the ordinary meaning of the terms of the provision in their context, or with the object and purpose of the Convention. It would be inconsistent with other provisions of the Convention, the Court’s Statute, and the Court’s procedure and jurisprudence.

 

32)       It added that the State’s interpretation of Article 51(1) of the Convention would necessarily require the Court to make a determination as to whether it has jurisdiction to entertain a case within the same three-month period prescribed for the Commission or a State to submit a matter to the Court.  Such an interpretation is plainly not viable, as it would inevitably provide parties with insufficient time to raise preliminary objections, for a hearing on preliminary issues, or for the Court to make a determination respecting its jurisdiction in a given case.  As a consequence, the Court would lose jurisdiction in most, if not all, of the cases submitted to it. Such an interpretation of Article 51(1) would be irrational in the context of the Convention as a whole, and is plainly contrary to the object and purpose of the Convention.

 

33)       Interpreting Article 51(1) as speaking to the acceptance by the State of the Court’s compulsory jurisdiction under Article 62 of the Convention, on the other hand, is consistent with the Convention’s object and purpose, and is reinforced by it, the Court’s Statute, and the procedure and jurisprudence of the Court. Article 61 of the Convention, for example, expressly contains instructions to comply with Articles 48 to 50, but not Article 51, as a precondition for the Court to hear a case. Similarly, Article 2 of the Statute defines the Court’s compulsory jurisdiction in terms of Articles 61, 62, and 63, but not Article 51, of the Convention.

 

34)       Further, the Commission indicated that Article 36 of the Court’s Rules of Procedure provides a period of two months from the date of notification of an application for parties to raise preliminary objections, and a further thirty days for the submission of any additional written briefs on the preliminary objections. The timing of this process is clearly incompatible with an interpretation of Article 51(1) that would require preliminary objections to be filed within three months of the date of transmission of the Commission’s Article 50 Report.  Moreover, the Court has determined in its jurisprudence that Article 51 of the Convention requires a matter to be filed before the Court within the three-month period under Article 51, but has never interpreted said article in a manner that requires the Court to determine its jurisdiction over the case within this same three-month period.

 

35)       Even in respect of the requirement under Article 51 of the Convention that an application be filed with the Court within the three-month period prescribed thereunder, the Court has held in its Advisory Opinion Certain Attributes of the Inter-American Commission on Human Rights (OC-13/93)[6] that the time limit, while of preclusive character, is not fatal with regard to the submission of a case to the Court where special circumstances exist. In particular, the Court has established in the Cayara case’s preliminary objections[7] that an application containing “serious charges” cannot be deemed to have lapsed simply on the grounds of a brief lapse in the time period under Article 51 of the Convention and, more generally, that the Court’s procedural system as a means of attaining justice cannot be sacrificed for the sake of mere formalities.

 

36)       Given the urgency of the issues raised in the present application before the Court, particularly the legitimacy of the pending executions, the Commission requested that the State should not be permitted to defeat the Court’s jurisdiction over the case based upon an erroneous interpretation of the procedural period under Article 51 of the Convention.


Considerations of the Court

 

37)       The Court considers that insofar as the first argument of the State’s preliminary objection is concerned, several implicit issues must be clarified:  first, the State objects to the Commission’s submission of the complaint, which it considers to have expired in light of the three months stipulated in Article 51(1) of the Convention; and second, it objects to the supposed “failure of the Court to accept jurisdiction” within the mentioned time limit. 

 

38)       The Court will not analyze whether the application was submitted within ninety days of July 5, 2000, since it is of the opinion that, in accordance with Article 51(1) of the American Convention, the period of three months should be based on the Gregorian calendar month, which is to say, from date to date. 

 

39)       As this Court has established in the Paniagua Morales et al. Case

 

it has been the regular practice of the Court to compute the period of three months referred to in Article 51(1) of the Convention from date to date […]

 

In the Caballero Delgado and Santana Case (Caballero Delgado and Santana Case, Preliminary Objections, Judgment of January 21, 1994.  Series C No. 17), the Court inadvertently used the expression “90 days” as the equivalent of “three months” (paragraph 39) when referring to an argument of the Commission, and applied the two expressions synonymously (paragraph 43).  Nevertheless, in that same case, the Court applied the criteria of three calendar months, as it is in paragraph 39 of that judgment, which applied a period of three months from October 17, 1991 to January 17, 1992 (if the period has been computed in days and not by the Gregorian calendar, ninety-three will have transpired).  Also in the Neira Alegria et al. Case (Neira Alegría et al. Case, Preliminary Objections, Judgment of December 11, 1991.  Series C No. 13, paras.  32-34), the Court applied the period of three months from June 11, 1990, to September 11, 1990 (three calendar months made up of ninety-three days).

 

The Court decides that, in accordance with Article 51(1) of the American Convention, the Inter-American Commission has a period of three months from the transmission of the Report referred to in Article 50(1) of the Convention, to submit the case to the Court.  The expression “period of three months” should be understood in its ordinary meaning.  According to the Dictionary of the Royal Academy of the Spanish Language, “period” “[ is the] term or time indicated for something” and “month [is the] number of consecutive days from the one indicated to another of the same date in the following months.”  Additionally, the Vienna Convention on the Law of Treaties (Article 31(1)) considers in its rules of interpretation, the ordinary meaning of the words, as well as the context, and the object and purpose of the treaty[8].

 

40)       The Court finds it convenient to clarify, in light of the State’s arguments, that what took place on October 19, 2000 was a notification of the application (supra 16).  Consequently, it should not be interpreted that the three-month time period stipulated in Article 51(1) of the Convention applies to the Court’s actions in the exercise of its own jurisdiction, as this emanates from the American Convention. Article 51(1) only refers to a limit for the submission of the application to the Court and does not directly relate to the Court’s actions relative to the determination of its jurisdiction.  When the text of Article 51(1) says “its jurisdiction accepted”, this refers to the acceptance of the Court’s jurisdiction on the part of the State, and not the Court’s actions in the exercise of its own jurisdiction.

 

41)       For the foregoing considerations, the Court dismisses the first argument of the State’s preliminary objection, in which it refers to the timeliness of the application and the “acceptance of jurisdiction” on the part of the Court.

 

B.  LACK OF JURISDICTION OF THE COURT

 

Arguments of the State

 

42)       As previously stated by Trinidad and Tobago, the State deposited its instrument of adherence of the Convention on May 28, 1991, dated April 3, 1991, recognizing the compulsory jurisdiction of the Court, but subjected this recognition to a “reservation”.  The State’s “reservation” reads that

 

[a]s regards Article 62 of the Convention, the Government of the Republic of Trinidad and Tobago, recognizes the compulsory jurisdiction of the Inter-American Court of Human Rights, as stated in the said article, only to such extent that recognition is consistent with the relevant sections of the Constitution of the Republic of Trinidad and Tobago; and provided that Judgment of the Court does not infringe, create or abolish any existing rights or duties of any private citizen.

 

43)       The State indicated that Article 75 of the Convention declares that it can only be subject to reservations in conformity with the provisions of the Vienna Convention on the Law of Treaties signed on May 23, 1969 (hereinafter “the Vienna Convention”).  In this respect, Article 19 of the same provides

 

[a] State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless:

 

a)             the reservation is prohibited by the treaty;

 

b)            the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or

 

c)              in cases not falling under subparagraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty.”

 

44)       The State also mentioned that in its Advisory Opinion on The Effect of Reservations on the Entry into Force of the American Convention on Human Rights (OC-2/82), the Court had stated that the reference in Article 75 to the Vienna Convention was intended to be a reference to paragraph (c) of Article 19 of the Vienna Convention and “makes sense only if it is understood as an express authorization designed to enable States to make whatever reservations they deem appropriate, provided the reservations are not incompatible with the object and purpose of the treaty.  As such they can be said to be governed by Article 20(1) of the Vienna Convention and, consequently, do not require acceptance by any other State party” [9].

 

45)       The State argued that its “reservation” was made relative to its acceptance of the Court’s jurisdiction and is limited to Article 62 of the American Convention.  According to Trinidad and Tobago, Article 62 of the Convention is an optional clause that States can freely “accept or reject”.  Those States that accept and so declare are expressly authorized to do so subject to conditions.  The Convention permits restrictions at the moment of acceptance of the Court’s jurisdiction under Article 62, which does not affect the enjoyment or exercise of the rights and liberties recognized in the Convention.  Consequently, given that the “reservation” does not deny the exercise of any of the rights provided for in the Convention, it can be considered compatible with the objec