Opinion of Judge Cançado (not yet available)

Opinion of Judge García (en español)

Opinion of Judge De Roux

In the Hilaire, Constantine and 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;
Alirio Abreu-Burelli, Vice-President;
Hernán Salgado-Pesantes, Judge;
Oliver Jackman, 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 Articles 29, 55, and 57 of the Rules of Procedure of the Court (hereinafter "the Rules of Procedure" or "the Rules")1, delivers the present Judgment, which is structured according to the following order:

I. Introduction of the Case paras. 1-11

II. Jurisdiction of the Court paras. 12-20

III. Proceedings Before the Commission paras. 21-25

IV. Provisional Measures paras. 26-33

V. Proceedings Before the Court paras. 34-59

VI. Facts Set Forth para. 60

VII. Evidence paras. 61-83

a) Documentary Evidence paras. 70-76

b) Expert Evidence para. 77

c) Assessment of the Evidence paras. 78-83

VIII. Proven Facts para. 84

IX. Violation of Article 4(1) and 4(2) in relation to Articles 1(1) and 2 of the American Convention (Mandatory Death Penalty) paras. 85-118

X. Violation of Articles 7(5), 8, and 25 in relation to Articles 1(1) and 2 of the American Convention (Right to Trial Within a Reasonable Time, Right to a Fair Trial and Judicial Protection) paras. 119-152

XI. Violation of Article 5(1) and 5(2) in relation to Article 1(1) of the American Convention (Detention Conditions) paras. 153-172

XII. Violation of Articles 4(6) and 8 in relation to Article 1(1) of the American Convention (Amnesty, Pardon or Commutation of Sentence) paras. 173-189

XIII. Violation of Article 4 of the American Convention (Non-compliance with the Provisional Measures Ordered by the Court with Respect to Joey Ramiah, Case No. 12,129) paras. 190-200

XIV. Reparations (Application of Article 63(1) of the American Convention) paras. 201-222

XV. Operative Paragraphs para. 223

I. INTRODUCTION OF THE CASE

1) The present Case is the result of a joinder of the Hilaire, Constantine et al., and Benjamin et al. Cases2, that were submitted to the Court separately by the Inter-American Commission on Human Rights (hereinafter "the Inter-American Commission" or "the Commission") against the State of Trinidad and Tobago (hereinafter "the State" or "Trinidad and Tobago") on May 25, 1999, February 22, 2000, and October 5, 2000, respectively.

2) The Commission’s Applications are based on petitions numbered 11,816 (Haniff Hilaire), 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), 12,141 (Steve Mungroo), 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 at its Secretariat between July 1997 and May 1999.

3) Below, the Court provides a chart, which summarizes the allegations made by the Commission in its Applications relating to the rights of the American Convention allegedly violated with respect to each of the alleged victims:

4) The Commission divided its submission of final allegations according to six principal issues in connection with the criminal proceedings of some or all of the alleged victims, as a result of their murder conviction in Trinidad and Tobago. These issues are: the "mandatory nature of the death penalty"; the process for granting amnesty, pardon or commutation of sentence in Trinidad and Tobago; the delays in certain alleged victims’ criminal proceedings; the deficiencies in the treatment and conditions of detention of certain alleged victims; the due process violations during some of the alleged victims’ pre-trial, trial and appeal phases; and finally, for certain alleged victims, the denial of access to legal aid for the purpose of pursuing domestic remedies for the violations of their rights.

5) Likewise, in its closing arguments the Commission requested that the Court declare the international responsibility of the State of Trinidad and Tobago, by reason of the following:

a) violation of Articles 4(1), 5(1), 5(2) and 8(1), in relation to the violation of Article 1(1), all of the American Convention, by sentencing all the alleged victims3 to a "mandatory death penalty";

b) violation of the rights of Joey Ramiah (Case No. 12,129) protected under Articles 4(1), 5(1) and 5(2) of the Convention, in relation to a violation of Article 1(1) of the same, by executing Joey Ramiah pursuant to a "mandatory death penalty" while his petition to obtain the protection of his rights was pending before the inter-American human rights system;

c) violation of the rights protected under Article 4(6) in relation to Article 1(1) of the Convention, by failing to provide the thirty-two alleged victims4 with an effective right to apply for amnesty, pardon or commutation of sentence;

d) violation of the right to be tried within a reasonable time and the right to a fair trial under Articles 7(5) and 8(1) of the Convention, in relation to Article 1(1), by reason of delays in the criminal proceedings of twenty-four of the alleged victims5;

e) violation of the rights of twenty-three alleged victims6 under Articles 25, 2 and 1(1) of the Convention for failing to adopt legislative or other measures necessary to make effective the right to be tried within a reasonable time under Articles 7(5) and 8(1) of the Convention;

f) violation of the rights under Article 5(1) and 5(2) of the Convention, in relation to Article 1(1), by reason of the twenty-one alleged victims’7 treatment and conditions of detention during their criminal proceedings;

g) violation of the right of Francis Mansingh (Case No. 12,157) prior to being convicted, to be detained separately from convicted inmates under Articles 5(4) and 1(1) of the Convention, and of Krishendath Seepersad (Case No. 12,149) and Haniff Hilaire (Case No. 11,816) under Articles 5(6) and 1(1) of the Convention, to have as an essential aim of their punishment their reform and social re-adaptation;

h) violation of the rights of Martin Reid (Case No. 12,052) under Articles 8(1), 8(2)(c), and 1(1) of the Convention, and of Peter Benjamin (Case No. 12,148) under Articles 8(1) and 1(1) of the Convention, as a consequence of the defects in the fairness of the trials that led to their convictions;

i) violation of the rights of Keiron Thomas (Case No. 11,853) and Narine Sooklal (Case No. 12,152) under Article 8(1) and 8(2), in relation to the violation of Article 1(1) of the Convention, due to errors committed in their pre-trial and appeal proceedings; and

j) violation of the rights of eleven of the alleged victims8 under Articles 8 and 25 of the Convention, in relation to Article 1(1) of the same, by failing to provide effective legal aid for the purpose of pursuing constitutional motions to protect their rights.

6) In its final written submissions on the merits and eventual reparations, the Commission reiterated its request for a declaration of the international responsibility of the State for the alleged violations mentioned in the previous paragraph and requested that the Court order the following "other forms of reparation":

i) that Trinidad and Tobago commute the death sentences of twenty-eight of the alleged victims9, and verify that the death sentence of Wayne Matthews (Case No. 12,076) has been effectively commuted as previously undertaken by the State;

ii) that Trinidad and Tobago grant Martin Reid (Case No. 12,052) and Peter Benjamin (Case No. 12,148) effective remedies to refer their cases to the Court of Appeal, in order that their convictions may be reviewed in full accordance with due process guarantees;

iii) that Trinidad and Tobago provide adequate compensation to the next of kin of Joey Ramiah (Case No. 12,129) by reason of his execution on June 4, 1999;

iv) that the State adopt such legislative or other measures as may be necessary to ensure respect for the Convention's guarantees when imposing the death penalty: an effective right to apply for amnesty, pardon or commutation of sentence; respect for the minimum standards governing the humane treatment of prisoners; the right to be tried within a reasonable time; the right to fair trial guarantees; and the right to judicial protection; and

v) that Trinidad and Tobago pay reasonable compensation to the representatives of the alleged victims (hereinafter "the representatives of the alleged victims" or "the representatives") for the expenses generated by presenting and processing the case before the Inter-American Court.

7) Finally, both in its Application and its written submission on final allegations, the Commission requested that the State be ordered to pay the costs of the proceedings.

Representatives of the Alleged Victims

8) In their final written submissions, the representatives of the alleged victims argued that the State has failed to respect the rights and freedoms recognised under the American Convention of the persons included in the present Case. In general terms, the aforementioned representatives grouped their claims as follows: a) "mandatory death penalty"; b) classification of degrees of criminal culpability; c) individualised sentencing; d) commutation or mercy procedure; e) delay in the processing of the cases; f) prison conditions; and g) due process guarantees.

9) The representatives also stated that they agreed with the Commission’s pleadings and requested that in the case of Joey Ramiah (supra para. 5(b)), the Court declare a gross violation of his rights and order just and appropriate compensation to his next of kin.

10) In relation to eventual reparations, the representatives of the alleged victims primarily seek commutation of the death sentences due to the "mandatory" nature of its imposition and/or the "mandatory" nature of its imposition together with other breaches of the American Convention, such as the State’s delay in bringing the alleged victims to trial and the "appalling" pre and post-conviction detention conditions to which they have been subjected.

11) As a basis for their claims, both the representatives of the alleged victims and the Commission alleged a series of acts and omissions of the State of Trinidad and Tobago, that the Court will address and assess the probative evidentiary value thereof.

II. JURISDICTION OF THE COURT

12) Trinidad and Tobago deposited its instrument of ratification of the American Convention on May 28, 1991. On that same day, the State recognised the compulsory jurisdiction of the Court.

13) On May 26, 1998, Trinidad and Tobago denounced the Convention and the denunciation became effective one year later, as of May 26, 1999, pursuant to Article 78 of the Convention. The facts referred to in the present Case occurred before the State's denunciation took effect.

14) The State of Trinidad and Tobago challenged the Court's jurisdiction to hear the present Case by way of the submission of a preliminary objection in the Hilaire, Constantine et al., and Benjamin et al. Cases, which were being processed separately at that time (infra para. 37). This preliminary objection was dismissed by the Court in its judgments of September 1, 2001 (infra para. 40).

15) In this way, the Court held in its judgments on preliminary objections that:

[…] Trinidad and Tobago cannot prevail in the limitation included in its instrument of acceptance of the optional clause of the mandatory jurisdiction of the Inter-American Court of Human Rights in virtue of what has been established in Article 62 of the American Convention, because this limitation is incompatible with the object and purpose of the Convention.10

16) Notwithstanding the fact that the Inter-American Court is fully competent to hear the present Case, as it indicated in the judgments on preliminary objections mentioned above (supra para. 14), the State of Trinidad and Tobago refused to recognise the jurisdiction of this Tribunal to continue processing this case. Accordingly, on February 8, 2002, the State announced that it would not attend the public hearing convened by the Court (infra paras. 47 and 49) and indicated the following:

The Government of the Republic of Trinidad and Tobago must decline the invitation of the Court to participate at the public hearing and the preliminary meeting to be held on 20-21 February, 2002 […] In taking this decision the Government of Trinidad and Tobago does not intend any discourtesy towards the Court or its distinguished and learned President. It reflects the belief of the State that, in the absence of any special agreement by the Republic of Trinidad and Tobago recognising the jurisdiction of the Court in this matter, the Inter-American Court of Human Rights has no jurisdiction in respect of these cases.

17) The Inter-American Court does not agree with the reason given by the State for not appearing before this Tribunal and for not participating in the proceedings (infra paras. 38, 46, 49, 53 and 83); as it has been well established in this case, the Court, as with any other international organ with jurisdictional functions, has the inherent authority to determine the scope of its own competence (compétence de la compétence/Kompetenz-Kompetez).11

18) As this Tribunal has indicated in its judgments on jurisdiction in the Constitutional Court and Ivcher Bronstein Cases,

[t]he jurisdiction of the Court cannot be contingent upon events extraneous to its own actions. The instruments consenting to the optional clause concerning recognition of the Court’s binding jurisdiction (Article 62(1) of the Convention) presuppose that the States submitting them accept the Court’s right to settle any controversy relative to its jurisdiction. An objection or any other action taken by the State for the purpose of somehow affecting the Court’s jurisdiction has no consequence whatever, as the Court retains the compétence de la compétence, as it is master of its own jurisdiction.12

19) Likewise, the Inter-American Court reiterates that when interpreting the American Convention in accordance with the general rules of treaty interpretation enshrined in Article 31(1) of the United Nations Convention on the Law of Treaties (hereinafter "the Vienna Convention"), and considering the object and purpose of the American Convention, the Tribunal, in the exercise of the authority conferred on it by Article 62(3) of the Convention, must act in a manner that preserves the integrity of the provisions of Article 62(1) of the Convention.13 It would be unacceptable to subordinate these provisions to restrictions that would render inoperative the Court’s jurisdictional role, and consequently, the human rights protection system established in the Convention. The Court has the inherent authority consistent with the imperative of judicial certainty to determine the scope of its own jurisdiction.

20) Given that the arguments submitted by Trinidad and Tobago in the Hilaire, Constantine et al. and Benjamin et al. Cases, with respect to the jurisdiction of this Tribunal to hear each case, were already resolved by the Court at the appropriate procedural stage 14 (infra para. 40), and that the facts alleged in the Applications submitted in the present Case pre-date the entry into force of the State’s denunciation (supra para. 13), and taking into account the considerations set out in the preceding paragraphs, the Court reaffirms that it is fully competent according to the terms of Articles 62(3) and 78(2) of the Convention, to hear the present Case and render judgment.

III. PROCEEDINGS BEFORE THE COMMISSION

21) Between July 1997 and May 1999, the Commission received the 31 petitions that comprise the present Case from several British firms of Solicitors (supra para. 2). The Commission began to examine the facts set forth in the petitions on various dates between August 1997 and June 1999, and subsequently opened the cases and remitted the pertinent parts of the petitions to the State with a request for its observations.

22) The Commission received responses from the State in relation to certain cases 15 on various dates between December 1997 and September 1999. The responses, replies and rejoinders received were duly transmitted to the relevant parties.

23) On April 21, 1999, the Commission adopted Report No. 66/99 on the merits in the Hilaire Case, which it transmitted to the State on April 26, 1999. On May 18, 1999, the State sent the Commission its response to said Report, and on May 23, 1999, the Inter-American Commission, pursuant to Article 51 of the American Convention, decided to refer the case to the Court.

24) On November 19, 1999, the Commission adopted Report No. 128/99, in connection with the twenty-three cases that comprise the Constantine et al. Case. 16 This Report was transmitted to the State on November 22, 1999. On January 22, 2000, the State sent its response to the Report, and on February 22, 2000, the Inter-American Commission, pursuant to Article 51 of the Convention, decided to refer the case to the Court.

25) On June 13, 2000, the Commission adopted Report No. 53/00 in connection with the seven cases that comprise the Benjamin et al. Case 17, and transmitted it to the State on July 5 of the same year. The State did not provide the Commission with a response, nor did it provide any information relating to any measures it might have taken to comply with the Commission’s recommendations. On October 4, 2000, the Inter-American Commission, pursuant to Article 51 of the Convention, decided to refer the case to the Court.

IV. PROVISIONAL MEASURES

26) On May 22, 1998, the Commission requested that the Court adopt provisional measures to preserve the life and physical integrity of Wenceslaus James and Anthony Garcia, among others 18, who were being detained awaiting execution in Trinidad and Tobago. This request was based on the ground that executing these persons before the Commission had an opportunity to examine their petitions would cause them irreparable harm and render moot the Commission’s eventual decisions in the matter.

27) By Order of May 27, 1998, the President of the Court (hereinafter "the President") ordered the adoption of urgent measures in what was later named the James et al. matter, and on June 14 of the same year, the Court ratified the President’s decision, issued the provisional measures requested and summoned the parties to a public hearing to be held on August 28, 1998. The hearing was held on the date indicated and the State did not appear.

28) On August 29, 1998, the Court expanded the provisional measures in the James et al. matter to include: Darrin Roger Thomas, Haniff Hilaire, and Denny Baptiste.19

29) On May 25, 1999, the Court ordered the expansion of the aforementioned provisional measures to include: Wilberforce Bernard, Naresh Boodram, Joey Ramiah, Clarence Charles, Phillip Chotalal, George Constantine, Rodney Davis, Natasha De Leon, Mervyn Edmund, Alfred Frederick, Nigel Mark, Wayne Matthews, Steve Mungroo, Vijay Mungroo, Wilson Prince, Martin Reid, Noel Seepersad, Gangadeen Tahaloo, Keiron Thomas, and Samuel Winchester. 20

30) 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, among others, so as not to impede the processing of their cases before the inter-American system. 21

31) On September 25, 1999, the Court ordered, as in the previous cases (supra paras. 28-30) the amplification of the provisional measures and directed the State, inter alia, to take all measures necessary to preserve the lives of Mervyn Parris and Francis Mansingh. 22

32) Despite the Court's requests on multiple occasions that the State provide information in relation to the provisional measures 23, Trinidad and Tobago has failed to submit any information regarding the situation of the alleged victims.

33) On June 4, 1999, Trinidad and Tobago executed Joey Ramiah, who was among those protected by the provisional measures ordered by this Court (supra paras. 5(b) and 6(iii), infra paras. 190-200).

V. PROCEEDINGS BEFORE THE COURT

34) The Applications in the Hilaire, Constantine et al. and Benjamin et al. Cases were submitted by the Commission on May 25, 1999, February 22, 2000, and October 5, 2000, respectively (supra para. 1).

35) In the three Applications, the Commission appointed as delegates, Messrs. Robert K. Goldman and Nicholas Blake, and solely for the Hilaire Case, also included Mr. Jean Joseph Exumé. Likewise, the Commission accredited Messrs. David J. Padilla and Brian D. Tittemore as legal advisors for all three cases. In the Hilaire Case, the Commission designated Messrs. Peter Carter, Owen Davies, and Andrea Dahlberg as legal assistants; in the Constantine et al. and Benjamin et al. Cases, it designated as assistants Messrs. Julian Knowles, Keir Starmer, Saul Lehrfreund, Belinda Moffat, Yasmin Waljee and James Oury, and in the Benjamin et al. Case, it also designated Mr. Ivan Krolick (infra para. 41).

36) Following a preliminary examination of the Applications in the Hilaire, Constantine et al., and Benjamin et al. Cases, the Secretariat of the Court (hereinafter "the Secretariat"), sent notifications to the State on June 11, 1999, April 14, 2000, and October 19, 2000, respectively. These notifications set out the deadlines for the State’s responses, submission of preliminary objections and appointment of representation. The State was also invited to designate an ad hoc judge in each case pursuant to Article 18 of the current Rules of Procedure, and Article 10(3) of the Statute of the Court (hereinafter "the Statute").

37) On August 16, 1999, June 14, 2000, and December 9, 2000, respectively, Trinidad and Tobago submitted a preliminary objection to the compulsory jurisdiction of the Court in the Hilaire, 24 Constantine et al., and Benjamin et al. Cases.

38) It should be noted that throughout the proceedings before the Court, the State did not respond to the Applications, appoint representatives or designate an ad hoc judge.

39) The Commission delivered its observations on the preliminary objections submitted by the State on November 19, 1999 for the Hilaire Case, on July 15, 2000 for the Constantine et al. Case, and on January 11, 2001 for the Benjamin et al. Case.

40) On September 1, 2001, during its LII Regular Period of Sessions, the Court deliberated and rendered judgment on the preliminary objections submitted in each of the three cases. 25

41) By way of communications dated May 31, 2000, and November 2, 2001, the representatives of the alleged victims reported their designation of Mrs. Yasmin Waljee as the sole representative in the present Case.

42) On November 16, 2001, the Secretariat, as instructed by the President of the Court, and pursuant to Article 44 of its Rules of Procedure, requested that the Inter-American Commission and the representatives of the alleged victims submit arguments concerning reparations, costs and expenses, to be considered in the event that the Court should find violations of the Convention in the three cases.

43) On November 30, 2001, the Court ordered the joinder of the Hilaire, Constantine et al. and Benjamin et al. Cases and their respective proceedings and stated that the now consolidated Case would henceforth be referred to as the Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago Case. 26

44) On December 14, 2001, the Inter-American Commission submitted its pleadings on eventual reparations in the recently joined case and provided the Court with its final list of expert witnesses who would participate in an eventual public hearing on the case. 27

45) On December 17, 2001, the representatives of the alleged victims submitted their arguments on eventual reparations.

46) On December 28, 2001, the Court requested comments from the State on the pleadings submitted by the Commission and by the representatives of the alleged victims within thirty days from the date of receipt of the communication. These observations were never submitted by the State.

47) On January 18, 2002, the President of the Court issued an Order convening the parties to a public hearing on the merits and eventual reparations in the Hilaire, Constantine and Benjamin et al. Case.

48) On January 22, 2002, the Court received the written reports of experts Desmond Allum (infra para. 77(a)), Gaietry Pargass (infra para. 77(c)), and Vivien Stern and Andrew Coyle (infra para. 76(b)). Likewise, on January 23, 2002, the Court received the expert report of Scharlette Holdman (infra para. 76(c)).

49) On February 8, 2002, the State informed that it would not attend the public hearing convened by the Court (supra para. 16).

50) On February 11, 2002, the Court received the written expert report of Nigel Eastman (infra para. 77(b)).

51) On February 19, 2002, Messrs. Vaughan Lowe and Guy Goodwin-Gill jointly submitted an amicus curiae brief.

52) On February 20 and 21, 2002, at a public hearing, the Court heard the testimony of the three expert witnesses called by the Inter-American Commission, as well as the final arguments on the merits and eventual reparations from the Commission and the representatives of the alleged victims.

Appearing before the Court:

for the alleged victims:

Julian Knowles, representative;
Keir Starmer, representative;
Yasmin Waljee, representative;
Parvais Jabber, representative;
Julie Morris, representative;

for the Inter-American Commission on Human Rights:

Robert Goldman, delegate;
Nicholas Blake, delegate;
Brian Tittemore, advisor; and

expert witnesses offered by the Inter-American Commission on Human Rights:

Desmond Allum;
Nigel Eastman; and
Gaietry Pargass.

53) As previously indicated (supra paras. 16 and 49), the State did not appear in the public hearing. The hearing was held pursuant to Article 27 of the Court’s Rules of Procedure, which was read by the President at the beginning of the hearing and states the following:

Article 27. Default Procedure

1. When a party fails to appear in or continue with a case, the Court shall, on its own motion, take such measures as may be necessary to complete the consideration of the case.

2. When a party enters a case at a later stage of the proceedings, it shall take up the proceedings at that stage.

54) During the public hearing, the Commission provided additional documentation. 28 This documentation was sent to the State and to the representatives of the alleged victims on March 4, 2002.

55) On February 21, 2002, the Court requested that the parties send their final written submissions on the merits and eventual reparations in the present Case.

56) On March 15, 2002, the Inter-American Commission submitted copies of various judgments issued by the Judicial Committee of the Privy Council 29 dated March 11, 2002. 30

57) On March 22, 2002, the Commission and the representatives of the alleged victims presented their final written submissions separately.

58) On April 8, 2002, the Court requested clarification of the dates of arrest and conviction, as well as additional information from the Inter-American Commission and the representatives of the alleged victims in relation to the 32 alleged victims in the present Case.

59) On April 17 and April 19, 2002, respectively, the representatives of the alleged victims and the Commission submitted explanatory notes containing the clarifications requested by the Court (supra para. 58).

VI. FACTS SET FORTH

60) The Commission alleged that all of the alleged victims (supra para. 2) were tried and convicted of murder in Trinidad and Tobago pursuant to the Offences Against the Person Act, 31 and that they were also sentenced to death by hanging. Below, the Court presents a summary of the legal proceedings that led to each conviction:

a) Haniff Hilaire (Case No. 11,816) was charged, along with his co-defendants Denny Baptiste and Indravani Ramjattan, with the murder of Alexander Jordan, which occurred between February 12 and 13, 1991. Haniff Hilaire was arrested on February 14, of the same year, and was tried, convicted, and sentenced to death on May 29, 1995. The same day, he applied for leave to appeal to the Court of Appeal of Trinidad and Tobago and on March 10, 1997, his appeal was dismissed. On October 30, 1997, Haniff Hilaire filed a petition for special leave to appeal to the Judicial Committee of the Privy Council and on November 6, 1997, said petition was dismissed. 32

b) George Constantine (Case No. 11,787) was charged with the December 1991 murder of his mother, Elsa Constantine. George Constantine was arrested on December 25, 1991, and was tried, convicted, and sentenced to death on February 17, 1995. He subsequently appealed his conviction to the Trinidad and Tobago Court of Appeal, and his appeal was dismissed on November 1, 1996. He then petitioned the Judicial Committee of the Privy Council for special leave to appeal the Court of Appeal’s decision, and his petition was dismissed on July 29, 1997. 33

c) Wenceslaus James (Case No. 11,814) was charged together with his co-defendant Anthony Briggs with the August 5, 1992 murder of Siewdath Ramkissoon. Wenceslaus James was arrested on August 21, 1992, and was tried, convicted, and sentenced to death on June 21, 1996. He subsequently appealed his conviction to the Trinidad and Tobago Court of Appeal, and his appeal was dismissed on March 6, 1997. James then petitioned the Judicial Committee of the Privy Council for special leave to appeal the Court of Appeal’s decision, and his petition was dismissed on October 2, 1997. 34

d) Denny Baptiste (Case No. 11,840) was charged, together with his co-defendants Haniff Hilaire (supra para. 60(a)) and Indravani Ramjattan, with the murder of Alexander Jordan, which occurred between February 12 and 13, 1991. Denny Baptiste was arrested on February 16, 1991, and was tried, convicted, and sentenced to death on May 29, 1995. He appealed his conviction to the Trinidad and Tobago Court of Appeal, and his appeal was dismissed on March 10, 1997. He then petitioned the Judicial Committee of the Privy Council for special leave to appeal his conviction, and the his petition was dismissed on November 7, 1997. 35

e) Clarence Charles (Case No. 11,851) was charged with the April 26, 1986 murder of Roger Charles. Clarence Charles was arrested on June 5, 1986, and was tried, convicted, and sentenced to death and on March 16, 1989. On December 8, 1993, he successfully appealed against his conviction. His re-trial commenced on April 4, 1995. On April 19, 1995, Clarence Charles was again convicted of murder and sentenced to death. Clarence Charles again appealed his conviction to the Trinidad and Tobago Court of Appeal, and his appeal was dismissed on November 5, 1996. He then petitioned the Judicial Committee of the Privy Council for special leave to appeal his conviction, and his petition was dismissed on December 4, 1997. 36

f) Keiron Thomas (Case No. 11,853) was charged with the August 7, 1991 murder of Wayne Gerry Williams. He was arrested on August 9, 1991, and was tried, convicted and sentenced to death on July 27, 1994. He subsequently appealed his conviction to the Trinidad and Tobago Court of Appeal, and his appeal was dismissed on May 9, 1996. He then petitioned the Judicial Committee of the Privy Council for special leave to appeal the Court of Appeal’s decision, and his petition was dismissed on November 6, 1997. 37

g) Anthony Garcia (Case No. 11,855) was charged with murder of Cyril Roberts. He was arrested on September 14, 1994, and was tried, convicted and sentenced to death on October 30, 1996. He subsequently appealed his conviction to the Trinidad and Tobago Court of Appeal, and his appeal was dismissed on May 22, 1997. Anthony Garcia then petitioned the Judicial Committee of the Privy Council for special leave to appeal the Court of Appeal’s decision, and the his petition was dismissed on December 4, 1997. 38

h) Wilson Prince (Case No. 12,005) was charged with the November 6, 1993 murder of Ida Sebastien Richardson. He was arrested on December 24, 1993, and was tried, convicted and sentenced to death on November 25, 1996. He appealed his conviction to the Trinidad and Tobago Court of Appeal, and his appeal was dismissed on October 14, 1997. Wilson Prince then petitioned the Judicial Committee of the Privy Council for special leave to appeal the Court of Appeal’s decision, and the his petition was dismissed on March 11, 1998. 39

i) Darrin Roger Thomas (Case No. 12,021) was charged together with his common law wife Natasha De Leon (infra para. 60(r)) with the murder of Chandranath Maharaj, which took place between February 6 and 12 of 1993. He was arrested on March 12, 1993, and was tried, convicted, and sentenced to death on November 9, 1995. He subsequently appealed his conviction to the Trinidad and Tobago Court of Appeal, and his appeal was dismissed on June 20, 1997. He then petitioned the Judicial Committee of the Privy Council for special leave to appeal the Court of Appeal’s decision, and his petition was dismissed on March 11, 1998. 40

j) Mervyn Edmund (Case No. 12,042) was charged with the December 28, 1987 murder of Minerva Sampson. He was arrested on December 30, 1987, and was tried, convicted and sentenced to death on December 10, 1990. He subsequently successfully appealed his conviction to the Trinidad and Tobago Court of Appeal, which ordered a new trial. He was tried for a second time on March 14, 1995, and on March 21, 1995 was again convicted of murder and sentenced to death. He appealed his second conviction and his appeal was dismissed on September 17, 1996. Finally he petitioned the Judicial Committee of the Privy Council for special leave to appeal from the Court of Appeal’s decision, and his petition was dismissed on July 16, 1998. 41

k) Samuel Winchester (Case No. 12,043) was charged with the September 15, 1995 murder of Esma Darlington. He was arrested on September 23, 1995, and was tried, convicted and sentenced to death on March 4, 1997. He subsequently appealed his conviction to the Trinidad and Tobago Court of Appeal, and his appeal was dismissed on October 22, 1997. He then petitioned the Judicial Committee of the Privy Council for special leave to appeal the Court of Appeal’s decision, and his petition was dismissed on June 4, 1998. 42

l) Martin Reid (Case No. 12,052) was charged with the April 13, 1994 murder of Fabrina Alleyne. He was arrested on June 13, 1994, and was tried, convicted and sentenced to death on November 15, 1995. He subsequently appealed his conviction to the Trinidad and Tobago Court of Appeal, and his appeal was dismissed on November 27, 1996. He then petitioned the Judicial Committee of the Privy Council for special leave to appeal the Court of Appeal’s decision, and his petition was dismissed on July 30, 1998. 43

m) Rodney Davis (Case No. 12,072) was charged with the March 20, 1992 murder of Nicole Bristol. He voluntarily turned himself in to the police on March 26, 1992, and was tried, convicted and sentenced to death on January 31, 1997. He subsequently applied for leave to appeal against his conviction to the Trinidad and Tobago Court of Appeal, and his application was dismissed on December 2, 1997. Rodney Davis then petitioned the Judicial Committee of the Privy Council for special leave to appeal the Court of Appeal’s decision, and his petition was dismissed on November 2, 1998. 44

n) Gangadeen Tahaloo (Case No. 12,073) was charged with the November 10, 1991 murder of his wife, Janetta Peters. He was arrested on November 10, 1991, and was tried, convicted and sentenced to death on May 26, 1995. He successfully appealed to the Trinidad and Tobago Court of Appeal and a new trial was ordered. On November 19, 1997, he was again convicted of murder and sentenced to death. He subsequently appealed his conviction to the Trinidad and Tobago Court of Appeal, and his appeal was dismissed on February 4, 1998. He petitioned the Judicial Committee of the Privy Council for special leave to appeal the Court of Appeal’s decision, and his petition was dismissed on November 2, 1998. 45

o) Noel Seepersad (Case No. 12,075) and his co-defendant Chuck Attin were charged with the July 11, 1994 murders of Candace Scott and Karen Sa Gomes. Noel Seepersad was arrested on July 11, 1994, and was tried, convicted and sentenced to death on February 7, 1997. He subsequently appealed his conviction to the Trinidad and Tobago Court of Appeal, and his appeal was dismissed on November 25, 1997. He petitioned the Judicial Committee of the Privy Council for special leave to appeal the Court of Appeal’s decision, and the his petition was dismissed on December 10, 1998. 46

p) Wayne Matthews (Case No. 12,076) was charged with the murder of Norris Yorke, which took place between February 3 and 4, 1987. He was arrested on February 6, 1987, and was tried, convicted and sentenced to death on November 16, 1988. He successfully appealed his conviction to the Trinidad and Tobago Court of Appeal, which ordered a re-trial. On October 29, 1993, Wayne Matthews was again convicted of murder and sentenced to death. He appealed his second conviction to the Trinidad and Tobago Court of Appeal, and his appeal was denied on January 25, 1996. Wayne Matthews then petitioned the Judicial Committee of the Privy Council for special leave to appeal the Court of Appeal’s decision, and his petition was dismissed on November 26, 1998. 47

q) Alfred Frederick (Case No. 12,082) was charged with the murder of Rahiman Gopaul, which occurred sometime between January 11 and 14, 1991. He was arrested on January 17, 1991, and was tried, convicted and sentenced to death on September 29, 1997. He subsequently appealed his conviction to the Trinidad and Tobago Court of Appeal, and his appeal was rejected on March 31, 1998. He then petitioned the Judicial Committee of the Privy Council for special leave to appeal the Court of Appeal’s decision, and his petition was dismissed on December 17, 1998. 48

r) Natasha De Leon (Case No. 12,093) was charged, together with her common law husband Darrin Roger Thomas (supra para. 60(i)), with the murder of Chandranath Maharaj, which took place between February 6 and 12, 1993. She was arrested on March 10, 1993, and was tried, convicted and sentenced to death on November 9, 1995. She subsequently appealed her conviction to the Trinidad and Tobago Court of Appeal, and her appeal was dismissed on June 20, 1997. She sought special leave to appeal the Court of Appeal’s decision and on March 11, 1998, the Privy Council accepted her petition and remitted the case back to the Trinidad and Tobago Court of Appeal. On September 23, 1998 the Court of Appeal dismissed the victim’s remitted appeal. 49

s) Vijay Mungroo (Case No. 12,111) was charged together with his co-defendants Steve Mungroo (infra para. 60(x)) and Phillip Chotalal (infra para. 60(t)) with the January 10, 1990 murder of Edmund Mitchell. He was arrested on January 24, 1990, and was tried, convicted and sentenced to death on December 13, 1996. He subsequently appealed his conviction to the Trinidad and Tobago Court of Appeal, and his appeal was dismissed on November 28, 1997. He then petitioned the Judicial Committee of the Privy Council for special leave to appeal, and his petition was dismissed on February 2, 1999. 50

t) Phillip Chotalal (Case No. 12,112) was charged together with his co-defendants Steve Mungroo (infra para. 60(x)) and Vijay Mungroo (supra para. 60(s)) with the January 10, 1990 murder of Edmund Mitchell. He was arrested on January 11, 1990, was tried and convicted on December 13, 1996, and was sentenced to death on December 17, 1996. He subsequently appealed his conviction to the Trinidad and Tobago Court of Appeal, and his appeal was dismissed on November 28, 1997. He then petitioned the Judicial Committee of the Privy Council for special leave to appeal, and his petition was dismissed on February 2, 1999. 51

u) Naresh Boodram and Joey Ramiah (Case No. 12,129) were both charged with the June 14, 1992 murders of Anthony Curtis Greenridge and Steven Sandy. They were arrested on May 25 and May 14, 1994, respectively, and both were tried, convicted and sentenced to death on November 27, 1996. They subsequently appealed their convictions to the Trinidad and Tobago Court of Appeal, and their appeals were dismissed on December 16, 1997. Boodram and Ramiah then petitioned the Judicial Committee of the Privy Council for special leave to appeal the Court of Appeal’s decision, and their petitions were dismissed on October 29, 1998. 52

v) Nigel Mark (Case No. 12,137) was charged with the April 28, 1992 murder of Bhagirath Singh. He was arrested on April 29, 1992, was tried, convicted and sentenced to death on November 11, 1997. He subsequently appealed his conviction to the Trinidad and Tobago Court of Appeal, and his appeal was dismissed on July 16, 1998. He then petitioned the Judicial Committee of the Privy Council for special leave to appeal the Court of Appeal’s decision, and his petition was dismissed on February 2, 1999. 53

w) Wilberforce Bernard (Case No. 12,140) was charged with the February 4, 1990 murder of Ramnarine Saroop. He was arrested on February 22, 1990, and was tried, convicted and sentenced to death on January 22, 1996. He subsequently appealed his conviction to the Trinidad and Tobago Court of Appeal, and his appeal was dismissed on September 24, 1997. He then petitioned the Judicial Committee of the Privy Council for special leave to appeal the Court of Appeal’s decision, and his petition was dismissed on October 22, 1998. 54

x) Steve Mungroo (Case No. 12,141) was charged, together with his co-defendants Vijay Mungroo (supra para. 60(s)) and Phillip Chotalal (supra para. 60(t)), with the January 10, 1990 murder of Edmund Mitchell. He was arrested on January 24, 1990, and was tried, convicted and sentenced to death on December 13, 1996. He subsequently appealed his conviction to the Trinidad and Tobago Court of Appeal, and his appeal was dismissed on November 28, 1997. He petitioned the Judicial Committee of the Privy Council for special leave to appeal the Court of Appeal’s decision, and his petition was dismissed on February 2, 1999. 55

y) Peter Benjamin (Case No. 12,148) was charged with the January 21, 1995 murder of Kanhai Deodath. He was arrested on January 21, 1995, and was tried, convicted and sentenced to death on October 27, 1997. He subsequently appealed his conviction to the Trinidad and Tobago Court of Appeal, and his appeal was dismissed on April 28, 1998. He petitioned the Judicial Committee of the Privy Council for special leave to appeal the Court of Appeal’s decision, and the Privy Council dismissed his petition on January 21, 1999. 56

z) Krishendath Seepersad (Case No. 12,149) was charged with the September 28, 1993 murder of Shazard Ghany. He was arrested on October 10, 1993, was tried, convicted and sentenced to death on May 29, 1996. He subsequently successfully appealed his conviction to the Trinidad and Tobago Court of Appeal and a new trial was ordered for October 17, 1997. He was again convicted of murder and sentenced to death on May 29, 1998. He again appealed his conviction to the Trinidad and Tobago Court of Appeal and this appeal was dismissed on October 8, 1998. He petitioned the Judicial Committee of the Privy Council for special leave to appeal the Court of Appeal’s decision, and his petition was dismissed on May 6, 1999. 57

aa) Allan Phillip (Case No. 12,151) was charged with the May 16, 1992 murder of Brian Barrow. He was arrested on May 16, 1992, was tried, convicted, and sentenced to death on November 17, 1995. He later appealed to the Trinidad and Tobago Court of Appeal, and this appeal was dismissed on June 12, 1996. He petitioned the Judicial Committee of the Privy Council for special leave to appeal the Court of Appeal’s decision, and the petition was dismissed on April 15, 1999. 58

bb) Narine Sooklal (Case No. 12,152) was charged together with his co-defendants, Sharma Sooklal and Francis Mansingh (infra para. 60(ee)), with the December 10, 1992 murder of Mobina Ali. He was arrested on December 13, 1992, and was tried, convicted and sentenced to death on May 24, 1996. He subsequently appealed to the Trinidad and Tobago Court of Appeal, and this appeal was dismissed on September 26, 1997. He petitioned the Judicial Committee of the Privy Council for special leave to appeal the Court of Appeal’s decision, and on February 23, 1998, special Leave was granted and his petition was dismissed on July 21, 1999. 59

cc) Amir Mowlah (Case No. 12,153) was charged with the February 6, 1991 murder of his wife, Shaffina Mowlah. He was arrested on February 6, 1991, and was tried, convicted and sentenced to death on October 27, 1997. He subsequently appealed his conviction to the Trinidad and Tobago Court of Appeal, and his appeal was dismissed on June 17, 1998. He then petitioned the Judicial Committee of the Privy Council for special leave to appeal the Court of Appeal’s decision, and his petition was dismissed on May 25, 1999. 60

dd) Mervyn Parris (Case No. 12,156) was charged with the November 9, 1989 murder of Anthony Gittens. He was arrested on February 21, 1990, and was tried, convicted and sentenced to death on February 17, 1995. He subsequently appealed his conviction to the Trinidad and Tobago Court of Appeal, which dismissed his appeal on February 6, 1998. He sought special leave to appeal the Court of Appeal’s decision to the Judicial Committee of the Privy Council, which dismissed his petition on December 2, 1999. 61

ee) Francis Mansingh (Case No. 12.157) was charged with his co-defendants Sharma Sooklal and Narine Sooklal (supra para. 60(bb)) with the December 10, 1992 murder of Mobina Ali. He was arrested on December 16, 1992, and was tried, convicted and sentenced to death on May 24, 1996. He subsequently appealed his conviction to the Trinidad and Tobago Court of Appeal, and his appeal was dismissed on September 26, 1996. He petitioned the Judicial Committee of the Privy Council for special leave to appeal from the Court of Appeal’s decision, leave was granted and finally, the Privy Council dismissed his appeal on July 21, 1999. 62

VII. EVIDENCE

61) Before turning to the analysis of the evidence received, in this chapter the Court will specify the general guidelines for assessing evidence and make reference to certain general considerations applicable to the specific case, the majority of which have been previously expounded in the jurisprudence of this Tribunal.

62) Article 43 of the Court's Rules of Procedure provides that:

1. Items of evidence tendered by the parties shall be admissible only if previous notification thereof is contained in the application and in the reply thereto and, when appropriate, in the document setting out the preliminary objections and in the answer thereto.

2. Evidence tendered to the Commission shall form part of the file, provided that it has been received in a procedure with the presence of both parties, unless the Court considers it essential that such evidence should be repeated.

3. Should any of the parties allege force majeure, serious impediment or the emergence of supervening events as grounds for producing an item of evidence, the Court may, in that particular instance, admit such evidence at a time other than those indicated above, provided that the opposing parties are guaranteed the right of defense.

4. In the case of the alleged victim, his next of kin or his duly accredited representatives, the admission of evidence shall also be governed by the provisions of Articles 23, 35(4) and 36(5) of the Rules of Procedure.

63) Likewise, Article 44 states the following:

The Court may, at any stage of the proceedings:

1. Obtain, on its own motion, any evidence it considers helpful. In particular, it may hear as a witness, expert witness, or in any other capacity, any person whose evidence, statement or opinion it deems to be relevant.

2. Request the parties to provide any evidence within their reach or any explanation or statement that, in its opinion, may be useful.

3. Request any entity, office, organ or authority of its choice to obtain information, express an opinion, or deliver a report or pronouncement on any given point. The documents may not be published without the authorization of the Court.

4. Commission one or more of its members to conduct measures in order to gather evidence.

64) According to the consistent practice of this Court, at the commencement of each procedural stage, the parties are required to state in writing, at the first available opportunity, the evidence they will be presenting. Furthermore, in the exercise of the judicial discretion conferred upon the Court by Article 44 of the Rules of Procedure (supra para. 63), the Court may request additional evidence from the parties for the purpose of clarification, without allowing, however, an opportunity for the parties to expand upon or complement existing arguments, or to offer new evidence, unless so permitted by the Tribunal. 63

65) The Court has previously stated that its procedure relating to the admission and evaluation of evidence is not subject to the same formalities as domestic judicial procedures, and that the admission of certain pieces of evidence to the general body of evidence must be carried out with careful attention to the circumstances of the particular case, while bearing in mind the limits imposed by due respect for judicial certainty and procedural equality as between the parties. In taking into account that, according to international jurisprudence, international tribunals have the authority to evaluate and assess evidence according to the rules of "competent analysis," the Court has always avoided adopting a rigid standard for the quantum of evidence necessary to justify a decision. 64 This principle is especially applicable to international human rights tribunals, which enjoy greater flexibility in assessing the evidence presented before them, in accordance with the rules of logic and on the basis of experience, for the purpose of determining the international responsibility of a State for the violation of a person’s rights. 65

66) On the other hand, it is necessary to bear in mind that international human rights protection should not be confused with criminal justice. In cases where States appear before this Tribunal, they do not appear as defendants in a criminal action, as the Court does not impose punishments on individuals found guilty of human rights violations. The function of this Tribunal is to protect the victims, determine when their rights have been violated and order reparation of the damage caused by the States responsible for such acts. 66 Thus,

[t]he sole requirement is to demonstrate that the State authorities supported or tolerated infringement of the rights recognized in the Convention. Moreover, the State's international responsibility is also at issue when it does not take the necessary steps under its domestic law to identify and, where appropriate, punish the authors of such violations […]. 67

67) It should be emphasized that in this case, the State failed to discharge its procedural responsibility of presenting evidence in the course of the procedural stages set out in Article 43 of the Rules of Procedure (supra para. 62). The Court considers, as it has in other cases, that when the State does not specifically contest the application, the facts on which it remains silent are presumed to be true, provided that the existing evidence leads to conclusions consistent with those facts. 68

68) Applying the above principles, before reaching a conclusion, the Court must proceed to take into account the evidence before it, the arguments made by the Commission and the representatives of the alleged victims and any documentary or other evidence which has been requested by Court and might be relevant in the present Case.

69) Therefore, in the exercise of its jurisdictional function, the Court will proceed to examine and evaluate all the elements that comprise the corpus of evidence in the case, guided by the rules of "competent analysis," so that the judges may be in a position to arrive at conclusions consistent with the facts, upon which they will have to base their decisions in the present Judgment.

a.) DOCUMENTARY EVIDENCE

70) In the Hilaire Case Application, the Inter-American Commission submitted a copy of thirty-four documents contained in twenty-one exhibits (supra paras. 1 and 34). 69

71) In the Constantine et al. Case Application, the Inter-American Commission submitted a copy of 120 documents contained in forty-four exhibits (supra paras. 1 and 34). 70

72) In the Benjamin et al. Case Application, the Inter-American Commission submitted a copy of fifty-three documents contained in thirty exhibits (supra paras. 1 and 34). 71

73) During the public hearing, the Commission submitted three documents related to the case (supra para. 54) and later sent a copy of three judgments issued by the Privy Council (supra para. 56).

74) Likewise, on March 22, 2002, the representatives of the alleged victims submitted various documents as exhibits to their final written arguments (supra para. 57). 72

75) The Court also received the written expert reports submitted by seven experts, namely: Thomas Alfred Warlow 73; Desmond Allum 74; Gaietry Pargass 75; Vivien Stern and Andrew Coyle 76; Scharlette Holdman 77; and Nigel Eastman 78, offered by the Commission in its final written submissions on eventual reparations (supra paras. 44, 48 and 50). 79

76) Below, the Court includes a summary of the three expert witness reports that were received only in writing (one of them prepared by two experts), in the order in which they were submitted:

a) Expert Witness Report of Thomas Alfred Warlow on the evidence available in the case of Peter Benjamin (Case No. 12,148) and on whether the shotgun which is alleged to have been used to kill the deceased could have fired the lethal bullet

The expert report of Thomas Alfred Warlow 80 contains an analysis of two separate documents related to the proceedings in the specific case of Peter Benjamin before the domestic courts of Trinidad and Tobago. 81 The first is a post mortem study of the corpse and the second is comprised of two reports prepared by an official from the Scientific-Forensic Centre in Trinidad and Tobago.

Thomas Warlow established that a 16-bore shotgun, the shotgun allegedly found on Mr. Benjamin, cannot chamber or fire 12-bore shotgun cartridges of the kind used in the murder and found at the crime scene. Consequently, Mr. Warlow concluded that the shotgun allegedly belonging to Peter Benjamin could not have been used in the murder for which he has been found guilty.

b) Expert Witness Report of Vivien Stern and Andrew Coyle on conditions of detention

Vivien Stern and Andrew Coyle 82 submitted a joint expert report on the conditions of detention in Port of Spain, Trinidad and Tobago, in relation to all the persons comprised in the present Case.

In their report, the expert witnesses indicated that prisoners remain in detention for excessively long periods, and that inmates in Port of Spain who are sentenced to death do not receive adequate medical care, are at times subjected to cruel treatment, live in conditions that are degrading and dangerous to their health and are deprived of proper access to fresh air and exercise.

Expert witnesses Coyle and Stern argued that the combination of all of these aspects of prison treatment, routinely applied to prisoners for long periods, constitutes cruel, inhuman or degrading treatment in violation Article 5(2) of the American Convention on Human Rights.

c) Expert Witness Report of Scharlette Holdman on the nature and role of mitigating factors in capital cases in the United States of America

The expert report of Scharlette Holdman 83 discusses mitigating factors of criminal responsibility and the preparation of evidence to demonstrate mitigating circumstances for cases involving crimes that formally may carry the death penalty. It also describes the qualifications and responsibilities of mitigation specialists, the relevance of mitigating evidence at the various stages of criminal proceedings and provides examples of cases in which mitigation has affected the outcome of a criminal proceeding.

Dr. Holdman explained that the main purpose of mitigation is to provide explanations for an offender's behaviour. It is based on "factors that were formative in the offender's development, behavior and functioning." However, it also reflects the nature and circumstances of the offence under the theory that punishment should be proportionate to the crime.

The expert witness further stated that mitigating evidence seeks to establish the degree of individual responsibility for certain kinds of conduct, analysing certain aspects of the offender such as family dynamics, neurological deficits, mental and physical developmental disabilities, medical and psychiatric illnesses, mental retardation, intellectual functioning, cultural and ethnic influences, situations of extreme poverty; community environment, child maltreatment, character, and chronological age, among others.

Theories of mitigation are governed by principles of respect for the uniqueness of each individual and require an examination of the character and record of the offender, thereby minimizing the risk that the death penalty will be imposed without taking into account factors that may support the imposition of a less severe penalty.

b) EXPERT EVIDENCE

77) During the public hearing held on February 20 and 21, 2002, the Court heard testimony from three expert witnesses presented by the Inter-American Commission (supra para. 52). The reports of their testimony are summarized below in the order they were submitted. 84

a) Attorney Desmond Allum 85 addressed the nature of the "mandatory death penalty," the exercise of the prerogative of mercy in Trinidad and Tobago, and other aspects of the State’s domestic criminal law, including the evolution and current status of the law of prosecutorial disclosure.

The expert witness found that there was no uniform practice in Trinidad and Tobago as to how long a person might be detained after being arrested and added that there is no "culture of keeping any written record in relation to persons taken to the police station." As a result, it is unclear exactly when the arrests took place.

He added that there is no provision in Trinidad and Tobago requiring the State to provide legal aid in anticipation of defence immediately upon arrest. Instead, the accused may only request representation when first brought before a judge. Often it can take up to six weeks before the first meeting with a lawyer.

He stated that there are different lawyers for the trial and appellate proceedings, which tends to cause an additional delay given that the appellate lawyer often is not informed of what occurred in the trial phase. In addition, Trinidad and Tobago does not recognise the right to be tried within a reasonable time.

The expert witness stated that the imposition of the "mandatory death penalty" on a person accused of intentionally taking another’s life may be the result of a confession made by the accused prior to having had access to a lawyer or being informed of his trial rights. Furthermore, there may not be a written statement or any other evidence to corroborate what the accused said.

In his testimony, Desmond Allum asserted that Courts should have discretion to take into account the circumstances of each individual offender in deciding whether or not the death penalty should be imposed. He stated that there should be individualised sentencing in death penalty cases and that this penalty should only be applied in exceptional cases.

b) Forensic Psychiatrist Nigel Eastman 86 addressed Amir Mowlah’s (Case No. 12,153) psychiatric condition and the possible psychiatric affliction he was suffering from at the time of the murder, as well as the adequacy of the psychiatric assessment conducted at trial.

He indicated that there is a grave shortage of psychiatric assistance (general and forensic) in Trinidad and Tobago. There is lack of experience and training in legal analysis for psychiatrists and most prefer not to work in this area due to the political climate favouring the death penalty. He stated that there is no law providing an opportunity for an individual accused of a capital offence to be assessed by a psychiatrist. Moreover, there are no available facilities to carry out psychiatric counselling, interviews and basic medical examinations.

The expert recommended that the State implement improved strategies for the medical and psychological examination and investigation of criminal offenders in Trinidad and Tobago, especially in death penalty cases, in view of the fact that mental disorders or problems can be extremely relevant to the determination of culpability.

c) Barrister Gaietry Pargass 87 spoke of the conditions of detention in the prisons of Trinidad and Tobago, reforms which should be made to the procedure for requesting legal aid and the conditions surrounding the execution of convicted persons in Trinidad in Tobago.

With respect to the conditions of detention in the remand prison of Port of Spain in Trinidad and Tobago, there is extreme overcrowding with up to fourteen prisoners per cell, measuring ten by nine feet. In certain cases there is not enough space to lie down to sleep, thus forcing some prisoners to sleep sitting or standing up. They remain in these conditions for a period of two to six years, which is the average time spent in pre-trial detention.

In addition, she stated that in that particular prison, instead of proper toilet facilities, there is a single bucket (slop pail) for an entire cell, which is emptied twice a day. Moreover, prisoners spend twenty-three hours in their cells except for a few minutes when they leave to eat. They are only allowed to go outside for exercise approximately three times a week due to the shortage of prison officers to supervise.

The expert witness clarified that the situation for those sentenced to death is somewhat different since they are assigned one cell per person. According to the rules of the prison, these prisoners should be allowed out of their cells to get fresh air and exercise for one hour a day; however, in practice this never happens. Also, there have been complaints regarding the poor quality of food and the lack of ventilation in the cells, as well as a lack of light that leads to vision complications, eye pain, and a general deterioration in the prisoners' vision.

With respect to pre-execution procedure, the prison superintendent reads the prisoners the death warrants. They are then taken to other cells in a section called "F2" that is very close to the execution chamber. On the wall and door of the execution chamber there are drawings of a figure with a rope around its neck and a message that reads: "You have come here to be executed." This both terrorizes and depresses the prisoners—others cannot sleep due to nightmares, much less eat. In addition, there are periodic checks of the prisoners' weight and they are asked about their favourite meals as part of their last wishes.

The expert witness stated that prisoners awaiting execution are permitted two visits by family and friends per week for fifteen minutes each. They must request all visits in writing using special forms that are made available every ten days. This procedure makes it extremely difficult for prisoners to see their lawyer in the event of an emergency. In the case of inmates detained awaiting trial, they are allowed even fewer visits and are only given request forms once a month. These forms are checked and censored by the relevant prison officials before being sent by mail to the person the prisoner wishes to see.

With respect to medical services for prisoners, Gaietry Pargass stated that there is only one doctor available to treat the entire prison population. For those prisoners awaiting execution, there is a prison official available with basic nursing training, who visits once in the morning and once in the evening to administer medication for minor pains and illnesses like headaches.

The expert witness concluded that prisoners live in overcrowded conditions during approximately two to six years between arrest and conviction. Although they often complain about the conditions, very little can be done since there is not enough space in Trinidad and Tobago’s prisons.

c) ASSESSMENT OF THE EVIDENCE

78) The Court will now assess the probative value of the documents and expert reports submitted to it. The evidence presented during all stages of the proceedings in the three cases has been integrated into a single body of evidence and will be assessed en bloc. 88

79) With respect to the evidence submitted by the Inter-American Commission in the three cases, the Court considers that:

a) As regards the documents related to the trial, judgment and appeal before the domestic tribunals, attached as exhibits to the Commission's Applications in each case, the Court has confirmed that they possess the requisite authenticity, as they contain no inconsistencies and meet the minimum standard of admissibility, inasmuch as they originate from reliable sources, and therefore possess clear probative value.

b) In regard to the relevant domestic legislation of Trinidad and Tobago, this Court considers that it is admissible as documentary evidence and that it can serve as a useful means to corroborate, where relevant, the facts established in the Applications and the contentions of the parties in the present Case.

c) In relation to jurisprudence from the tribunals of Trinidad and Tobago, the Privy Council and other jurisdictions, submitted by the Commission with the Applications, it should likewise be incorporated into the body of evidence, as indicated in the previous paragraph, to be considered in this case, for the purpose of verifying the truth of the facts set forth.

80) Therefore, the Court admits the probative value of those documents presented by the parties in due time, the authenticity of which was not challenged or questioned.

81) In regard to the expert testimony given during the public hearing by Desmond Allum, Nigel Eastman, and Gaietry Pargass (supra para. 52), as well as the written reports and their exhibits presented by experts Thomas A. Warlow, Desmond Allum, Gaietry Pargass, Vivien Stern and Andrew Coyle, Scharlette Holdman, and Nigel Eastman (supra paras. 48 and 50), the Court holds them to be valid and accords probative value to all evidence that is consistent with the object and purpose of each of the cases.

82) Upon examining the expert reports together with the remaining evidence, in accordance with the rules of "competent analysis" and experience, the Court considers that it is possible to infer conclusions consistent with the facts. In accordance with this criterion, the Court attributes high probative value to the experts' statements, within the diverse contexts and circumstances that correspond to each of the alleged victims, since each statement reveals essential evidence for the purposes of this case.

83) It is relevant to reiterate that the State had the opportunity to submit its own witnesses and experts and to contest the evidence brought by the parties at the different procedural stages of this case, but failed to do so.

VIII. PROVEN FACTS

84) The Court now proceeds to consider the relevant facts that it deems to be proven and which result from the analysis of the proceedings, as well as the documentary evidence (which highlights the domestic legislation of Trinidad and Tobago) and expert testimonial evidence provided.

a) All the alleged victims were tried and convicted of murder in Trinidad and Tobago, and sentenced to death pursuant to the Offences Against the Person Act in force in the State since April 3, 1925. 89

b) The Offences Against the Person Act prescribes the death penalty as the only applicable sentence for the crime of murder. 90

c) Section 3 of the Offences Against the Person Act adopts the English common law definition of murder, which in turn provides that a defendant may be convicted of murder if it is established that he unlawfully caused the death of another person with the intention to kill or to cause serious bodily injury. 91

d) The Offences Against the Person Act permits the jury to consider certain determinative circumstances of the killing for the purpose of establishing whether the accused should be found guilty of murder or of a lesser crime. 92

e) Once an offender is found guilty of murder, the Offences Against the Person Act does not permit the judge or jury to consider the particular circumstances of the offence or offender for the purpose of determining the appropriate penalty. 93

f) Article 6 of the Constitution of the Republic of Trinidad and Tobago precludes individuals from challenging, under Sections 4 and 5 of the Constitution, all laws or acts carried out pursuant to any law in force in Trinidad and Tobago before 1976, the year the Constitution entered into force. 94

g) The 32 persons comprised in this case all invoked the appropriate domestic recourses for the review of their convictions (supra para. 60).

h) In accordance with the Constitution of the Republic of Trinidad and Tobago, the President of the Republic retains a discretionary power to pardon those sentenced to death. 95

i) The Constitution of the Republic of Trinidad and Tobago provides for an Advisory Committee on the Power of Pardon, which is charged with considering and making recommendations to the relevant Minister as to whether an offender sentenced to death should benefit from discretionary pardon. 96

j) In the cases of several of the alleged victims (infra para. 152(a) and 152(b)), due process guarantees before trial, during trial, and on appeal were not respected by reason of various factors such as unjustified delay of the proceedings and the unavailability of legal aid, experts and other kinds of specialized assistance.

k) The Constitution of the Republic of Trinidad and Tobago does not stipulate trial within a reasonable time as part of due process guarantees. 97

l) The victims in thirty cases 98 were detained by the authorities of Trinidad and Tobago for periods lasting from a minimum of four years (Peter Benjamin) up to a maximum period of eleven years and nine months (Wayne Matthews) from the time of their arrest to the resolution of their final appeal (supra para. 60 and infra para. 152(a)).

m) All of the victims' pre and post trial detention took place in grossly overpopulated and unhygienic conditions. As to pre-trial detention conditions, their cells, referred to as "F2" cells, lack sufficient ventilation and natural light. Along with the showers used by the victims, they are located in close proximity to the execution chamber (gallows). The prisoners do not have adequate nutrition, medical services or recreation, which only exacerbates the state of mental anguish in which they live (supra paras. 76(b) and 77(c)).

n) Only twenty-one of the alleged victims 99 in this case have maintained that they were imprisoned under conditions of overcrowding, inadequate hygiene and other deficient detention conditions since the time of their arrest. Nevertheless, on the basis of the evidence, this Court accepts as fact that these conditions are typical of Trinidad and Tobago's prison system and therefore concludes that all of the alleged victims in the present Case have been subjected to those same conditions indicated in the previous paragraph.

o) The detention conditions described above only exacerbate the intrinsic suffering that the alleged victims already endure due to the impending imposition of their death penalty.

p) Of the 32 victims in this case, thirty are currently detained in the prisons of Trinidad and Tobago awaiting their execution by hanging, the only exceptions being Joey Ramiah (Case No. 12,129), who was executed, and Wayne Matthews (Case No. 12,076), whose sentence was commuted.

q) On January 27, 1999, the Judicial Committee of the Privy Council ordered that all executions in Trinidad and Tobago be stayed pending the decision of the Commission and the Court as to appropriate recourse for these persons under the American Convention. It also held that carrying out these sentences prior to the determination of their petitions before the Commission and the Court would constitute a breach of the constitutional rights 100 of the alleged victims in this case.

r) On June 4, 1999, the State of Trinidad and Tobago executed Joey Ramiah after he had been found guilty of murder and sentenced to death by hanging (infra paras. 190-200), despite the existence of provisional measures in his favour, whereby the Court had ordered the State to stay his execution.

s) On February 7, 2000, Wayne Matthews was informed that his death sentence had been commuted to 75 years in prison.

t) The representatives of the alleged victims have incurred costs in the course of the processing of these cases before the inter-American system.

IX. VIOLATION OF ARTICLE 4(1) and 4(2), IN RELATION TO ARTICLES 1(1) AND 2 OF THE AMERCIAN CONVENTION.
(Mandatory Death Penalty)

Contentions of the Commission

85) The Commission contended that the State is responsible for violating the American Convention through the arrest, detention, trial, conviction and sentencing to death by hanging of the thirty-two victims included in the present Case (supra para. 2), pursuant to the Offences Against the Person Act of Trinidad and Tobago, enacted in 1925.

86) It added that, in accordance with Section 4 of the Offences Against the Person Act, once the offender is found guilty of murder, the death penalty is "mandatorily imposed" because that section provides that "every person found guilty of murder shall suffer death." 101

87) In addition, the Commission pointed out that the law of Trinidad and Tobago does not allow the courts to consider the personal circumstances of the offender or his crime in murder cases. Among the circumstances mentioned were the prior criminal record of the offender, the subjective factors that could have motivated his conduct, the degree of his participation in the criminal act and the probability that the offender could be reformed and socially readapted. The courts also cannot assess whether the death penalty is the appropriate punishment or not for the specific case in light of the particular circumstances of the offender’s conduct.

88) The Commission added that the use of the "mandatory death penalty" by Trinidad and Tobago results in its imposition on all persons convicted of murder, without taking into account the mitigating and aggravating circumstances of the case or the varying degrees of culpability. In the Commission’s opinion, the foregoing contravenes the inherent dignity of the human being and the right to humane treatment protected in Article 5(1) and 5(2) of the American Convention.

89) The Commission added that the "mandatory imposition of the death penalty," that is, where the death penalty is the only imposable punishment for murder cases, eliminates the possibility of determining individualised sentences and prevents a rational and proportional relation between the offender, the crime and the punishment imposed and does not allow judicial review of the judgment, according to the terms of the American Convention.

90) In light of this, the Inter-American Commission pointed out in its final allegations that the imposition of the "mandatory death penalty" for all persons convicted of murder, without analysing the individual characteristics of the offender and the crime and without considering whether the death penalty was the appropriate punishment for that case, renders it an inhuman and unjust punishment, constituting a violation of Articles 4(1), 4(2), 5(1), 5(2), and 8(1) in relation to Article 1(1) of the American Convention.

91) The Commission maintained that Articles 4, 5 and 8 of the Convention should be interpreted as obligating courts to dictate "individualised sentences," or rather, to exercise certain discretion, even if it is a limited discretion, for the purpose of taking into account the mitigating and aggravating circumstances in play for each particular case.

92) Finally, the Commission indicated that the "mandatory death penalty" is incompatible with the safeguards of the most fundamental human rights. This finding is consistent with the conclusions reached by supervisory domestic and international bodies that have considered the matter, including the Inter-American Court and the Judicial Committee of the Privy Council, who recently addressed the issue in Reyes v. The Queen. The Commission stated that, according to this jurisprudence, the death penalty is subject to rigorous application of judicial guarantees and procedural requirements, whose observance should be strictly respected and scrutinized by the highest domestic judicial bodies.

Contentions of the Representatives of the Alleged Victims

93) The representatives of the alleged victims indicated that the victims were convicted of murder and automatically sentenced to death by hanging, pursuant to the Offences Against the Person Act of 1925, without any examination of the particular circumstances of the crime or the background or personal characteristics of the accused. In this way, each one of the 32 victims was tried under a legal system that did not permit a charge of non-capital murder and did not permit judicial discretion to impose a lesser sentence. This implies a violation of Articles 4(1), 4(2), 5(1), 5(2) and 8(1), in relation to Article 1(1) of the American Convention.

94) The representatives considered that when a State maintains the death penalty, it should implement a classification system for murder with varying degrees of culpability, thus ensuring that this punishment is only imposed for the most serious crimes.

95) Likewise, they indicated that the classification or qualification of the crime alone is not sufficient for the determination of the penalty. It is also necessary to consider the particular circumstances of the crime, such as the prior criminal record and character of the offender, before imposing the most severe punishment, in order that the crime committed and the punishment be proportional.

96) In relation to the above, the representatives of the alleged victims added that, according to the Royal Commission on Capital Punishment 102

[y]et there is perhaps no single class of offences which varies so widely both in character and in culpability as the class comprising those that may fall within the comprehensive common law definition of murder […] we may see the multifarious variety of the crimes for which death is the uniform sentence. Convicted persons may be men, or they may be women, youths, girls, or hardly older than children. They may be normal or they may be feeble-minded, neurotic, epileptic, borderline cases, or insane; and in each case the mentally abnormal may be differently affected by their abnormality […]. 103

97) The aforementioned representatives indicated that in other countries 104 of the Commonwealth, a distinction has been made between capital or first degree murder, and non-capital or second degree murder. Capital murder 105 at times carries the "mandatory death penalty" as a punishment, while second-degree murder does not. In Trinidad and Tobago, there have been attempts to introduce this distinction through a reform of the Offences Against the Person Act, which in spite of being approved by the Senate has still not been promulgated. 106

Assessment of the Court

98) After considering the arguments of the parties, the Court will reach a decision concerning the "mandatory death penalty," for which it is relevant to reiterate that Article 4 of the American Convention stipulates that:

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 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 a competent authority.

99) In spite of the fact the Convention does not expressly prohibit the application of the
death penalty, the Court has affirmed that the conventional rules concerning the death penalty should be interpreted as "imposing restrictions designed to delimit strictly its application and scope, in order to reduce the application of the death penalty to bring about its gradual disappearance." 107

100) In light of the general spirit evident in Article 4 of the American Convention, considered in its entirety, the Court has found that:

[t]hree 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. 108

101) The Court is aware of the pain and suffering inflicted upon the direct victims and their next of kin by the perpetrators in murder cases, and is cognizant of the State’s duty to protect potential victims of this crime, punish those responsible and generally maintain public order, which may be affected by the proliferation of these types of crimes. The Court also considers that the State’s struggle against murder should be carried out with the utmost respect for the human rights of the persons under their jurisdiction and in compliance with the applicable human rights treaties. 109

102) The intentional and illicit deprivation of another’s life (intentional or premeditated murder, in the broad sense) can and must be recognised and addressed in criminal law under various categories (criminal classes) that correspond with the wide range of gravity of the surrounding facts, taking into account the different facets that can come into play: a special relationship between the offender and the victim, motives for the behaviour, the circumstances under which the crime is committed, the means employed by the offender, etc. This approach allows for a graduated assessment of the gravity of the offence, so that it will bear an appropriate relation to the graduated levels of gravity of the applicable punishment.

103) The Court finds that the Offences Against the Person Act of 1925 of Trinidad and Tobago automatically and generically mandates the application of the death penalty for murder and disregards the fact that murder may have varying degrees of seriousness. Consequently, this Act prevents the judge from considering the basic circumstances in establishing the degree of culpability and individualising the sentence since it compels the indiscriminate imposition of the same punishment for conduct that can be vastly different. In light of Article 4 of the American Convention, this is exceptionally grave, as it puts at risk the most cherished possession, namely, human life, and is arbitrary according to the terms of Article 4(1) of the Convention. 110

104) The Court finds that the Offences Against the Person Act has two principal aspects: a) in the determination of criminal responsibility, it only authorizes the competent judicial authority to find a person guilty of murder solely based on the categorization of the crime, without taking into account the personal conditions of the defendant or the individual circumstances of the crime; and b) in the determination of punishment, it mechanically and generically imposes the death penalty for all persons found guilty of murder and prevents the modification of the punishment through a process of judicial review.

105) The Court concurs with the view that to consider all persons responsible for murder as deserving of the death penalty, "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 death penalty." 111

106) In countries where the death penalty still exists, one of the ways in which the deprivation of life can be arbitrary under Article 4(1) of the Convention is when it is used, as is the case in Trinidad and Tobago due to the Offences Against the Person Act, to punish crimes that do not exhibit characteristics of utmost seriousness, in other words, when the application of this punishment is contrary to the provisions of Article 4(2) of the American Convention.

107) It is the view of this Court that although a violation of Article 4(2) of the Convention was not specifically alleged by the Commission in its Applications (supra para. 3), but rather only in its final arguments (supra para. 90), the Tribunal is not prevented from examining that issue, by virtue of the general principle of law iura novit curia, "on which international jurisprudence has repeatedly relied and under which a court has the power and the duty to apply the juridical provisions relevant to a proceeding, even when the parties do not expressly invoke them." 112

108) In light of these facts, the Court concludes that because the Offences Against the Person Act submits all persons charged with murder to a judicial process in which the individual circumstances of the accused and the crime are not considered, the aforementioned Act violates the prohibition against the arbitrary deprivation of life, in contravention of Article 4(1) and 4(2) of the Convention.

109) Therefore, the Court considers that Trinidad and Tobago has violated Article 4(1) and 4(2) in conjunction with Article 1(1) of the Convention, to the detriment of Haniff Hilaire, 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, Naresh Boodram, Joey Ramiah, Nigel Mark, Wilberforce Bernard, Steve Mungroo, Peter Benjamin, Krishendath Seepersad, Allan Phillip, Narine Sooklal, Amir Mowlah, Mervyn Parris and Francis Mansingh.

110) Similarly, even though the Commission did not specifically allege a violation of Article 2 in relation to Article 4 of the American Convention, the issue may still be examined by the Tribunal, by virtue of the established general legal principle of iura novit curia (supra para. 107). 113

111) Article 2 of the American Convention provides that

[w]here the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms.

112) Based on the above provision, the Court has consistently held that the American Convention establishes the general obligation of States Parties to bring their domestic law into compliance with the norms of the Convention, in order to guarantee the rights set out therein. The provisions of domestic law that are adopted must be effective (principle of effet utile). That is to say that the State has the obligation to adopt and to integrate into its domestic legal system such measures as are necessary to allow the provisions of the Convention to be effectively complied with and put into actual practice. 114

113) If the States, pursuant to Article 2 of the American Convention, have a positive obligation to adopt the legislative measures necessary to guarantee the exercise of the rights recognised in the Convention, it follows, then, that they also must refrain both from promulgating laws that disregard or impede the free exercise of these rights, and from suppressing or modifying the existing laws protecting them. These acts would likewise constitute a violation of Article 2 of the Convention.

114) In this sense, in the Suárez Rosero Case, this Court has held a legislative act of a State to be per se in violation of Article 2 of the American Convention (the law in question left persons charged under the Law on Narcotic Drugs and Psychotropic Substances without any legal protections of their right to personal liberty). In this respect, the Court stated that

[…] this [provision] deprives a part of the prison population of a fundamental right, on the basis of the crime of which it is accused and, hence, intrinsically injures everyone in that category. This rule has been applied in the specific case of Mr. Suárez Rosero and has caused him undue harm. The Court further observes that, in its opinion, this law violates per se Article 2 of the American Convention, whether or not it was enforced in the […] case. 115

115) In the Barrios Altos Case, the Court likewise established that due to the adoption of laws incompatible with the Convention, the State failed to comply with the obligation to conform its domestic law to Article 2 of the Convention. 116

116) The Court considers that even though thirty-one of the alleged victims in this case have not yet been executed, it is appropriate to find that there has been a violation of Article 2 of the Convention, by virtue of the fact that the mere existence of the Offences Against the Person Act in itself constitutes a per se violation of that provision of the Convention. 117 This assertion is consistent with Advisory Opinion OC-14/94, which states that, "[i]n the case of self-executing laws, […] the violation of human rights, whether individual or collective, occurs upon their promulgation." 118

117) From the preceding, it can be inferred that, by virtue of the fact that Trinidad and Tobago has not brought its laws into compliance with the Convention, it has not fulfilled the obligation imposed on States Parties by Article 2.

118) Therefore, the Court concludes that the State of Trinidad and Tobago failed to fulfil the obligation established in Article 2 of the American Convention, to the detriment of Haniff Hilaire, 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, Naresh Boodram, Joey Ramiah, Nigel Mark, Wilberforce Bernard, Steve Mungroo, Peter Benjamin, Krishendath Seepersad, Allan Phillip, Narine Sooklal, Amir Mowlah, Mervyn Parris and Francis Mansingh.

X. VIOLATION OF ARTICLES 7(5), 8 AND 25 IN RELATION TO ARTICLES 1(1) AND 2 OF THE AMERICAN CONVENTION
(Right to Trial within a Reasonable Time, Right to Fair Trial and Judicial Protection)

Contentions of the Commission

119) The Inter-American Commission contended that Trinidad and Tobago violated the right to be tried within a reasonable time, the right to a fair trial and the right to judicial protection to the detriment of several of the victims. The Court summarizes these contentions below.

120) The Commission contended that the State is responsible for the violation of Articles 7(5) and 8(1) of the Convention in relation to Article 2, by virtue of the unjustified delays in bringing twenty-four of the victims in the present Case to trial. 119 The following table sets forth the information presented by the Commission with respect to these victims. 120

121) The Commission argued in general terms that each one of these cases resulted in an unjustified delay by virtue of the fact that no case was decided in less than four years from the date of arrest to the appellate decision; it added that some of the victims were detained in prison awaiting trial for nearly seven years and consequently experienced delays of approximately twelve years between their arrest and final appeal (supra para. 120).

122) The Commission indicated that in cases of unacceptable delay, the burden of proof falls on the State to justify the delay, and that Trinidad and Tobago failed to adduce any evidence whatsoever during the proceedings before the Court.

123) Likewise, the Commission stated that Section 4 of the Constitution of the Republic of Trinidad and Tobago guarantees the right to a fair trial, but not to a speedy trial or a trial within a reasonable period of time. Consequently, a prolonged pre-trial delay does not in itself violate the Constitution, although it must be taken into account by the judge in deciding whether the delay may adversely affect the Court’s capacity to arrive at a decision consonant with the facts of the case.

124) The delays caused by Trinidad and Tobago throughout the judicial proceedings of the twenty-four mentioned victims (supra para. 120) constitute a violation of the right to trial within a reasonable time, guaranteed in Articles 7(5) and 8(1) of the American Convention. Such delays likewise violate Article 2 since the State did not adopt the necessary measures in its domestic law to make effective the guarantees protected in these provisions.

125) The Commission contended that, in relation to the criminal proceedings of eleven victims, 123 Trinidad and Tobago is responsible for the violation of Articles 8 and 25 of the Convention, in conjunction with Article 1(1), by reason of its failure to effectively provide legal aid to permit accused persons to bring constitutional motions before the domestic tribunals. 124

126) In this regard, the Commission indicated that although free legal representation should be available to all persons for the presentation of constitutional motions in Trinidad and Tobago, in practice it is rarely granted to those sentenced to death. Furthermore, there is a practical obstacle to the presentation of these motions, namely that the execution orders are read a few days before they are to be carried out, which makes the introduction of constitutional motions considerably more difficult.

127) The Commission claimed that, in light of Articles 8, 25 and 1(1) of the Convention, the State is obligated to effectively provide legal representation for all persons that wish to present a constitutional motion. In cases of persons sentenced to death, this obligation becomes even more crucial.

128) With respect to the availability of legal assistance, the Commission specifically alleged that Narine Sooklal (Case No. 12,152) was denied permission on six occasions to make telephone calls to obtain legal representation. For this reason, he did not benefit from legal counsel until immediately before the preliminary inquiry, which took place six months after his arrest. Consequently, the Commission argued that in his specific case, Article 8(2)(d) of the American Convention was violated.

129) Likewise, the Commission specifically alleged in the case of Keiron Thomas (Case No. 11,853), that during the appeal requested by the victim, the lawyer appointed by the State to represent him informed the Court of Appeal that, in his opinion, the appeal was unfounded and would not succeed. As a result, the victim dismissed his lawyer and requested that he have the opportunity to obtain another lawyer or defend himself personally. The Court of Appeal refused his petition and ordered that Keiron Thomas continue to be represented by the lawyer that he had objected to. In light of these facts, the Commission claimed that the State is responsible for violating Article 8(2)(d) and 8(2)(e) of the Convention.

130) The Commission argued that the victim in Case No. 12,052, Martin Reid, was found guilty of murder solely on the basis of the positive identification made by of one witness for the prosecution. However, after his conviction, the State provided the victim’s lawyers with a copy of a statement made by the witness prior to the aforementioned testimony, containing information that contradicted the trial testimony that led to Martin Reid’s conviction. The Commission therefore claimed that, with respect to this victim, Trinidad and Tobago violated Article 8(2)(c) of the Convention.

131) Similarly, in the case of Peter Benjamin (Case No. 12,148), the Commission claimed that the weapon allegedly used by Benjamin to commit the murder was 16-gague while the weapon that killed the murder victim was 12-gague. Thus, Benjamin could not have committed this murder. The Commission added that although this information was available at trial, its due significance and scope was not brought to light. In the opinion of the Commission, this constitutes a violation of Article 8(1) of the American Convention.

Contentions of the Representatives of the Alleged Victims

132) In regard to the violation of Articles 7(5) and 8(1) of the Convention, the representatives of the victims concurred with the contentions of the Inter-American Commission and asked the Court to commute the death sentences by virtue of the delay in the proceedings (supra para. 120). Below, the Court presents a summary of their allegations.

133) The representatives stated that international jurisprudence establishes that a conviction issued pursuant to a trial where there were unjustified delays may be quashed. The Court, therefore, should order the State to commute the sentences imposed.

134) The representatives also claimed that there was a violation of Article 2 of the Convention because the State had not adopted the necessary measures to give full effect to the rights protected therein. They added that Trinidad and Tobago has not revised its criminal statutes to allow the exercise of discretion in sentencing, has not amended its Constitution to guarantee the right to a fair trial within a reasonable time, and has preserved immunity from constitutional challenge of "existing laws," which were in force before the enactment of the Trinidadian Constitution.

135) In regard to the violation of Articles 8 and 25 of the Convention, in conjunction with Article 1(1), the victims’ representatives adopt the same reasoning as the Commission in relation to the right of every individual to present constitutional motions, which permit, to some extent, further consideration of their cases and sentences.

136) Moreover, the representatives of the victims alleged that Article