Constantine et al. Case, Judgment of September 1, 2001, Inter-Am Ct. H.R. (Ser. C) No. 82 (2001).


 

 

In the Constantine 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 February 22, 2000.  The Commission’s application originates from petitions number 11,787 (George Constantine), 11,814 (Wenceslaus James), 11,840 (Denny Baptiste), 11,851 (Clarence Charles), 11,853 (Keiron Thomas), 11,855 (Anthony Garcia), 12,005 (Wilson Prince), 12,021 (Darrin Roger Thomas), 12,042 (Mervyn Edmund), 12,043 (Samuel Winchester), 12,052 (Martin Reid), 12,072 (Rodney Davis), 12,073 (Gangadeen Tahaloo), 12,075 (Noel Seepersad), 12,076 (Wayne Matthews), 12,082 (Alfred Frederick), 12,093 (Natasha De Leon), 12,111 (Vijay Mungroo), 12,112 (Phillip Chotalal), 12,129 (Naresh Boodram and Joey Ramiah), 12,137 (Nigel Mark), 12,140 (Wilberforce Bernard) and 12,141 (Steve Mungroo), received by its Secretariat between July 1997 and February 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 18):

 

4(1), 5(1), 5(2), and 8(1), for sentencing George Constantine, Wenceslaus James, Denny Baptiste, Clarence Charles, Keiron Thomas, Anthony Garcia, Wilson Prince, Darrin Roger Thomas, Mervyn Edmund, Samuel Winchester, Martin Reid, Rodney Davis, Gangadeen Tahaloo, Noel Seepersad, Wayne Matthews, Alfred Frederick, Natasha De Leon, Vijay Mungroo, Phillip Chotalal, Joey Ramiah and Naresh Boodram, Nigel Mark, Wilberforce Bernard and Steve Mungroo (hereinafter “the alleged victims”) to a “mandatory death penalty”;

 

4(1), 5(1), and 5(2), for applying the death penalty to one of the alleged victims while his case was pending before the Inter-American System of Human Rights;

 

4(6), for failing to provide these twenty-four 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 seventeen of the alleged victims;

 

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

 

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

8(2)(c), for failing to disclose a highly probative witness statement to one of the alleged victims prior to his trial, and consequently for denying the alleged victim adequate means by which to prepare his defence;

 

8(2)(d) and 8(2)(e), for denying one of the alleged victims the right to defend himself personally or to be properly assisted by legal counsel of his choice in the course of his appeal before the Trinidad and Tobago Court of Appeal;

 

8(1) and 25, for failing to make legal aid effectively available to nine 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 February 17, 1995, Mr. George Constantine (case 11,787) was convicted and sentenced to a “mandatory death penalty” by hanging for the murder of Elsa Constantine;

 

b)         On June 21, 1996, Mr. Wenceslaus James (case 11,814) was convicted and sentenced to a “mandatory death penalty” by hanging for the murder of Siewdath Ramkissoon;

 

c)                  On May 29, 1995, Mr. Denny Baptiste (case 11,840) was convicted and sentenced to a “mandatory death penalty” by hanging for the murder of Alexander Jordan;

 

d)         On March 16, 1989, Mr. Clarence Charles (case 11,851) was convicted and sentenced to a “mandatory death penalty” by hanging for the murder of Roger Charles;

 

e)         On July 27, 1994, Mr. Keiron Thomas (case 11,853) was convicted and sentenced to a “mandatory death penalty” by hanging for the murder of Wayne Gerry Williams;

 

f)          On October 30, 1996, Mr. Anthony Garcia (case 11,855) was convicted and sentenced to a “mandatory death penalty” by hanging for the murder of Cyril Roberts;

 

g)         On November 26, 1996, Mr. Wilson Prince (case 12,005) was convicted and sentenced to a “mandatory death penalty” by hanging for the murder of Ida Sebastien Richardson;

 

h)         On November 9, 1995, Mr. Darrin Roger Thomas (case 12,021) was convicted and sentenced to a “mandatory death penalty” by hanging for the murder of Chandranath Maharaj;

 

i)          On December 10, 1990, Mr. Mervyn Edmund (case 12,042) was convicted and sentenced to a “mandatory death penalty” by hanging for the murder of Minerva Sampson;

 

j)          On March 4, 1997, Mr. Samuel Winchester (case 12,043) was convicted and sentenced to a “mandatory death penalty” by hanging for the murder of Esma Darlington;

 

k)         On November 15, 1995, Mr. Martin Reid (case 12,052) was convicted and sentenced to a “mandatory death penalty” by hanging for the murder of Fabrina Alleyne;

 

l)          On January 31, 1997, Mr. Rodney Davis (case 12,072) was convicted and sentenced to a “mandatory death penalty” by hanging for the murder of Nicole Bristol;

 

m)        On May 26, 1995, Mr. Gangadeen Tahaloo (case 12,073) was convicted and sentenced to a “mandatory death penalty” by hanging for the murder of Janetta Peters;

 

n)         On February 7, 1997, Mr. Noel Seepersad (case 12,075) was convicted and sentenced to a “mandatory death penalty” by hanging for the murders of Candace Scott and Karen Sa Gomes;

 

o)         On November 16, 1988, Mr. Wayne Matthews (case 12,076) was convicted and sentenced to a “mandatory death penalty” by hanging for the murder of Norris Yorke;

 

p)         On September 29, 1997, Mr. Alfred Frederick (case 12,082) was convicted and sentenced to a “mandatory death penalty” by hanging for the murder of Rahiman Gopaul;

 

q)         On November 9, 1995, Mrs. Natasha De Leon (case 12,093) was convicted and sentenced to a “mandatory death penalty” by hanging for the murder of Chandranath Maharaj;

 

r)          On December 13, 1996, Mr. Vijay Mungroo (case 12,111) was convicted and sentenced to a “mandatory death penalty” by hanging for the murder of Edmund Mitchell;

 

s)         On December 13, 1996, Mr. Phillip Chotalal (case 12,112) was convicted and sentenced to a “mandatory death penalty” by hanging for the murder of Edmund Mitchell;

 

t)          On November 27, 1996, Messrs. Joey Ramiah and Naresh Boodram (case 12,129) were convicted and sentenced to a “mandatory death penalty” by hanging for the murders of Anthony Curtis Greenridge and Steven Sandy; in addition, Mr. Joey Ramiah was sentenced to death under the Offences Against the Person Act in relation to Dole Chaddee and on June 4, 1999, the State executed Mr. Ramiah pursuant to this second conviction;

 

u)         On November 11, 1997, Mr. Nigel Mark (case 12,137) was convicted and sentenced to a “mandatory death penalty” by hanging for the murder of Bhagirath Singh;

 

v)         On January 22, 1996, Mr. Wilberforce Bernard (case 12,140) was convicted and sentenced to a “mandatory death penalty” by hanging for the murder of Ramnarine Saroop;

 

w)        On December 13, 1996, Mr. Steve Mungroo (case 12,141) was convicted and sentenced to a “mandatory death penalty” by hanging for the murder of Edmund Mitchell;

 

x)         In all 23 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”;

 

y)         The Offences Against the Person Act provides a definition of “murder”, permits a jury to consider certain specific 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;

 

z)         Domestic judicial review proceedings for criminal convictions 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;

 

aa)       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;

 

bb)       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 a matter of legal right, and therefore not subject to judicial review.

 

 

III

PROCEEDING BEFORE THE COMMISSION

 

3)         Between July 1997 and April 1999, the Commission received 23 petitions from various British law firms (hereinafter “the petitioners”) on behalf of 24 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 August 1997 and April 1999, and subsequently opened cases 11,787; 11,814; 11,840; 11,851; 11,853; 11,855; 12,005; 12,021; 12,042; 12,043; 12,052; 12,072; 12,073; 12,075; 12,076; 12,082; 12,093; 12,111; 12,112; 12,129; 12,137; 12,140; and 12,141, and transmitted the pertinent parts of the petitions to the State, and requested a reply.

 

4)         The Commission received responses from the State in cases 11,787 (George Constantine), 11,814 (Wenceslaus James), 11,840 (Denny Baptiste), 11,851 (Clarence Charles), 11,853 (Keiron Thomas), 11,855 (Anthony Garcia), 12,005 (Wilson Prince), 12,042 (Mervyn Edmund), 12,052 (Martin Reid), 12,072 (Rodney Davis), 12,073 (Gangadeen Tahaloo), 12,075 (Noel Seepersad), 12,082 (Alfred Frederick), 12,093 (Natasha De Leon), 12,111 (Vijay Mungroo), 12,112 (Phillip Chotalal), 12,129 (Joey Ramiah and Naresh Boodram), 12,137 (Nigel Mark) and 12,140 (Wilberforce Bernard), on various dates between December 1997 and October 1999, and in the remaining four (12,021; 12,043; 12,076 and 12,141), the State did not provide the Commission with any observations respecting the petitions.  In the 19 cases in which the State delivered a response, the Commission decided to transmit the pertinent parts to the petitioners, in accordance with Article 34(7) of its Rules of Procedure, and requested their comments.

 

5)         In 18 cases, the petitioners delivered comments on the State’s response.  The Commission transmitted these communications to the State and requested a reply.  In two cases, 11,814 (Wenceslaus James) and 11,840 (Denny Baptiste), the State delivered replies to the petitioners’ observations. 

 

6)         In eight cases, 11,814 (Wenceslaus James), 11,840 (Denny Baptiste), 11,853 (Keiron Thomas), 11,855 (Anthony Garcia), 12,005 (Wilson Prince), 12,021 (Darrin Roger Thomas), 12,042 (Mervyn Edmund), and 12,129 (Naresh Boodram and Joey Ramiah), the Commission received supplementary materials from the petitioners and transmitted the pertinent parts to the State. In two cases, 11,840 (Denny Baptiste) and 11,853 (Keiron Thomas), the State delivered responses to the petitioners’ supplementary submissions.  In both cases, the Commission transmitted the pertinent parts of the State’s response to the petitioners, and the petitioners presented observations on the State’s response.

 

7)         During its 103rd Period of Sessions, the Commission scheduled oral hearings in several cases involving condemned prisoners, which the State did not attend. During the abovementioned period of sessions, the petitioners in cases 11,787 (George Constantine), 11,840 (Denny Baptiste), 12,005 (Wilson Prince), 12,021 (Darrin Roger Thomas), 12,042 (Mervyn Edmund), 12,043 (Samuel Winchester), 12,072 (Rodney Davis), and 12,075 (Noel Seepersad) presented the Commission with a joint submission, dated March 17, 1999.  By communication dated April 15, 1999, the Commission transmitted the petitioners’ additional submissions to the State and requested its observations.

 

8)         Between May 1998 and March 1999, the Commission adopted Reports Nos. 36/98, 62/98, 45/98, 35/99, 36/99, and 37/99, in the cases 11,814; 11,840; 11,855; 12,005; 12,042 and 12,052.  In these reports the Commission declared these petitions to be admissible. 

 

9)         On November 19, 1999, the Commission adopted Report No. 128/99, in accordance with Article 50 of the Convention, and transmitted it to the State on November 22, of the same year.  In this report, the Commission determined that the remaining seventeen cases were admissible[2] and, in the operative part of the report, recommended that the State, in relation to the 23 cases that are the subject of this application[3]:

 

1.                  Grant the victims in the cases that are subject of [this] Report an effective remedy which includes commutation of sentence and compensation;

 

2.                  Provide adequate compensation to the next of kin of Joey Ramiah (Case No. 12,129) for the violations referred to in [this Report] in relation to Mr. Ramiah;

 

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 right to trial within a reasonable time 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;

 

6.                  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.

 

10)       By communication dated January 22, 2000, the State replied to the Commission’s request for information on the measures taken to comply with the recommendations.

 

11)       On February 22, 2000, the Inter-American Commission, pursuant to Article 51 of the American Convention, decided to submit the case to the Court.

 

IV

PROVISIONAL MEASURES

 

12)       On May 22, 1998, prior to the submission of the application, the Commission requested that the Court adopt provisional measures to preserve the lives and physical integrity of Wenceslaus James and Anthony Garcia, among others[4]. 

 

13)       By Order of May 27, 1998, the President of the Court (hereinafter “the President”) ordered the adoption of the requested measures in the matter of James et al., and, on June 14 of the same year, the Court ratified this Order.

 

14)       On August 29, 1999, the Court expanded the provisional measures in the matter of James et al. to include Darrin Roger Thomas, Haniff Hilaire and Denny Baptiste[5].

 

15)       On May 3, 1999, the Commission requested that the Court expand the provisional measures ordered in the matter of James et al. in order to include twenty additional persons, namely: Wilberforce Bernard, Naresh Boodram, Joey Ramiah, Clarence Charles, Phillip Chotalal, George Constantine, Rodney Davis, Natasha De Leon, Mervyn Edmund, Alfred Frederick, Nigel Mark, Wayne Mathews, Steve Mungroo, Vijay Mungroo, Wilson Prince, Martin Reid, Noel Seepersad, Gangadeen Tahaloo, Keiron Thomas and Samuel Winchester.

 

16)       On May 11, 1999, the President of the Court ordered the State, inter alia, to take all measures necessary to preserve the lives of the alleged victims (supra 15), so that the Court could examine the pertinence of the Commission’s request for amplification.  On May 25, 1999, the plenary of the Court ratified the President’s Order of May 11, 1999.

 

17)       As of this date, the State has been filing the relevant reports with respect to the situation of the persons protected, and the Commission has filed its observations on the State’s reports.

 

V

PROCEEDING BEFORE THE COURT

 

18)       On February 22, 2000, the Inter-American Commission presented 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.               In Cases 11,787 (George Constantine), 11,814  (Wenceslaus James), 11,840 (Denny Baptiste), 11,851 (Clarence Charles), 11,853 (Keiron Thomas), 11,855 (Anthony Garcia), 12,005 (Wilson Prince), 12,021 (Darrin Roger Thomas), 12,042 (Mervyn Edmund), 12,043 (Samuel Winchester), 12,052 (Martin Reid), 12,072 (Rodney Davis), 12,073 (Gangadeen Tahaloo), 12,075 (Noel Seepersad), 12,076 (Wayne Matthews), 12,082 (Alfred Frederick), 12,093 (Natasha De Leon), 12,111 (Vijay Mungroo), 12,112 (Phillip Chotalal), 12,129 (Naresh Boodrarn and Joey Ramiah), 12,137 (Nigel Mark), 12,140 (Wilberforce Bernard), and 12,141 (Steve Mungroo) the State is responsible for the violation of the rights under Articles 4(1), 5(1), 5(2) and 8(l), in conjunction with Article 1(1) of the American Convention, for sentencing these victims to mandatory death penalties.

 

2.               In Case 12,129 (Naresh Boodram and Joey Ramiah), the State is responsible for violating the rights of the victim Joey Ramiah under Articles 4(l), 5(1) and 5(2) of the Convention, in conjunction with Article 1(1) of the Convention by executing Mr. Ramiah pursuant to a mandatory death penalty and while his case was pending before the Inter-American human rights system.

 

3.               In Cases 11,787 (George Constantine), 11,814 (Wenceslaus James), 11,840 (Denny Baptiste), 11,851 (Clarence Charles), 11,853 (Keiron Thomas), 11,855 (Anthony Garcia), 12,005 (Wilson Prince), 12,021 (Darrin Roger Thomas), 12,042 (Mervyn Edmund), 12,043 (Samuel Winchester), 12,052 (Martin Reid), 12,072 (Rodney Davis), 12,073 (Gangadeen Tahaloo), 12,075 (Noel Seepersad), 12,076 (Wayne Matthews), 12,082 (Alfred Frederick), 12,093 (Natasha De Leon), 12,111 (Vijay Mungroo), 12,112 (Phillip Chotalal), 12,129 (Naresh Boodram and Joey Ramiah), 12,137 (Nigel Mark), 12,140 (Wilberforce Bernard), and 12,141 (Steve Mungroo) the State is responsible for violation of the right under Article 4(6) of the Convention, in conjunction with 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.

 

4.               In Cases 11,787 (George Constantine), 11,840 (Denny Baptiste), 11,851 (Clarence Charles), 12,005 (Wilson Prince), 12,021 (Darrin Roger Thomas), 12,042 (Mervyn Edmund), 12,072 (Rodney Davis), 12,073 (Gangadeen Tahaloo), 12,075 (Noel Seepersad), 12,076 (Wayne Matthews), 12,082 (Alfred Frederick), 12,093 (Natasha De Leon) 12,111 (Vijay Mungroo), 12,112 (Phillip Chotalal), 12,137 (Nigel Mark), 12,140 (Wilberforce Bernard) and 12,141 (Steve  Mungroo), the State is responsible for the violation of the rights of the victims 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 violations of Article 1(1) of the Convention, by reason of the delays in the victims' criminal proceedings.

 

5.               In Cases 11,787 (George Constantine), 11,840 (Denny Baptiste), 11,851 (Clarence Charles), 12,005 (Wilson Prince), 12,021 (Darrin Roger Thomas), 12,042 (Mervyn Edmund), 12,072 (Rodney Davis), 12,073 (Gangadeen Tahaloo), 12,075 (Noel Seepersad), 12,076 (Wayne Matthews), 12,082  (Alfred Frederick), 12,093 (Natasha De Leon) 12,111 (Vijay Mungroo), 12,112  (Phillip Chotalal), 12,137 (Nigel Mark), 12,140 (Wilberforce Bernard), and 12,141 (Steve Mungroo), the State is responsible for the violation of Article 25 of the Convention, in conjunction with the violation of the State's obligations under Article 2 of the Convention, all in conjunction with 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.

 

6.               In Cases 11,853 (Keiron Thomas), 11,855 (Anthony Garcia), 12,021 (Darrin Roger Thomas), 12,043 (Samuel Winchester), 12,072 (Rodney Davis), 12,073 (Gangadeen Tahaloo), 12,075 (Noel Seepersad), 12,076 (Wayne Matthews), 12,082 (Alfred Frederick), 12,111 (Vijay Mungroo), 12,112 (Phillip Chotalal), 12,129 (Naresh Boodram and Joey Ramiah), 12,137 (Nigel Mark), 12,140 (Wilberforce Bernard) and 12,141 (Steve Mungroo), the State is responsible for the violation of Articles 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 before and after their convictions.

 

7.               In Case 12,052 (Martin Reid), the State is responsible for the violation of Article 8(2)(c) of the Convention, in conjunction with Article 1(1) of the Convention, for failing to disclose a highly probative witness statement to the victim prior to his trial.

 

8.               In Case 11,853 (Keiron Thomas), the State is responsible for the violations of the rights of the victim under Articles 8(2)(d) and 8(2)(e) of the Convention, in conjunction with Article 1(1) of the Convention, by denying the victim the right to defend himself personally or to be properly assisted by legal counsel of his choice during his appeal before the Trinidad and Tobago Court of Appeal.

 

9.               In Cases 11,787 (George Constantine), 12,005 (Wilson Prince), 12,042 (Mervyn Edmund), 12,052 (Martin Reid), 12,073 (Gangadeen Tahaloo), 12,075 (Noel Seepersad), 12,093 (Natasha De Leon), 12,112 (Phillip Chotalal), and 12,140 (Wilberforce Bernard), the State is responsible for the violation of Articles 8 and 25 of the Convention, in conjunction with Article 1(1) of the Convention, for failing to make legal aid effectively 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 21 of the cases that are the subject of this application, Cases 11,787 (George Constantine), 11,814 (Wenceslaus James), 11,840 (Denny Baptiste, 11,851 (Clarence Charles), 11,853 (Keiron Thomas), 11,855 (Anthony Garcia) 12,005 (Wilson Prince), 12,021 (Darrin Roger Thomas), 12,042 (Mervyn Edrnund) 12,043 (Samuel Winchester), 12,072 (Rodney Davis), 12,073 (Gangadeen Tahaloo), 12,075 (Noel Seepersad), 12,082 (Alfred Frederick), 12,093 (Natasha De Leon), 12,111 (Vijay Mungroo), 12,112 (Phillip Chotalal), 12,129 (Naresh Boodram. and Joey Ramiah), 12,137 (Nigel Mark), 12,140 (Wilberforce Bernard), and 12,141 (Steve Mungroo) an effective remedy which includes commutation of sentence and compensation.

Direct that the Republic of Trinidad and Tobago grant the victim in Case 12,076 (Wayne Matthews), whose death sentence the State has agreed to commute, an effective remedy that includes compensation.

 

Direct that the Republic of Trinidad and Tobago grant the victim in Case 12,052 (Martin Reid) an effective remedy which includes a re-trial in accordance with the due process protections prescribed under Article 8 of the Convention or, if a re-trial in compliance with these protections is not possible, release.

 

Direct that the Republic of Trinidad and Tobago provide adequate compensation to the next of kin of Joey Ramiah (Case 12,129) for the violations referred to in Part VII.B above relating to Mr. Ramiah.

 

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 right to trial within a reasonable time 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 that right.

 

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 that 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 insured 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 status 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 status 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 during the processing of the case before the domestic courts and the organs of the Inter-American system.

 

19)       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, Keir Starmer, Saul Lehrfreund, Belinda Moffat, Yasmin Waljee, and James Oury as assistants.

 

20)       On April 14, 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. 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 the Rules of Procedure, and 10(3) of the Statute of the Court (hereinafter “the Statute”).

 

21)       On June 14, 2000, Trinidad and Tobago submitted a preliminary objection to the compulsory jurisdiction of the Court in this case. The following day, the Secretariat transmitted a copy of the preliminary objection to the Inter-American Commission.

 

22)       On July 15, 2000, the Commission responded to the communication with respect to the raising of the preliminary objection on the part of the State, which was transmitted to Trinidad and Tobago on July 17 of the same year.

 

23)       On September 1, 2000, the Inter-American Commission waived the convening of a hearing on the preliminary objection raised by the State. On September 5, 2000, the Secretariat transmitted this communication to the State, and on September 12, 2000, requested its observations, granting it until September 29 of the same year to provide them.