41. In support of their contention that Mr. Knights’ conditions of detention violate Article 5(1) and 5(2) of the Convention, the Petitioners refer to several decisions of the U.N. Human Rights Committee (hereinafter "HRC"), in which the HRC determined that conditions of detention violated Articles 7 and 10(1) of the International Covenant on Civil and Political Rights (ICCPR). These cases include Antonaccio v. Uruguay,  in which the HRC held that detention in solitary confinement for three months and denial of medical treatment constituted a violation of the Covenant, and De Voituret v. Uruguay, in which the HRC held that solitary confinement for three months in a cell with almost no natural light violated the applicant’s rights under the Covenant. The Petitioners also rely upon the decision in the case of Mukong v. Cameroon, in which the HRC suggested that conditions of detention which do not meet the United Nations Standard Minimum Rules for the Treatment of Prisoners violate Articles 7 and 10(1) of the ICCPR, and that minimum standards of humane treatment of prisoners apply regardless of a state's level of development:
42. The Petitioners similarly argue that the European Court's jurisprudence in respect of Article 3 of the European Convention support their contention that Mr. Knights’ conditions of detention violate his rights under Article 5 of the American Convention. In particular, the Petitioners rely upon the Greek Case, in which the Court found conditions of detention amounting to inhumane treatment to include overcrowding, poor hygiene and sleeping arrangements, and inadequate recreation and contact with the outside world. Likewise, in the case of Cyprus v. Turkey, the Court found that conditions in which food, water, and medical treatment were withheld from detainees constituted inhuman treatment. The Petitioners also argue that these cases recognized that a failure to provide adequate medical care may constitute inhuman treatment, even in the absence of any other ill treatment.
43. Further, the Petitioners argue that the conditions under which Mr. Knights is detained at Richmond Hill Prison constitute violations of the United Nations Standard Minimum Rules for the Treatment of Prisoners, namely, Rules 10, 11A, 11B, 12, 13, 15, 19, 22(1), 22(2), 22(3), 24, 25(1), 25(2), 26(1), 26 (2), 35(1), 36(1), 36(2), 36(3), 36(4), 57, 71(2) 72(3) and 77.
44. Finally, the Petitioners observe that Grenada failed to respond to questionnaires sent to OAS Member-States in connection with the Commission's efforts in 1995 to establish a working group to conduct studies of prison conditions in the Americas.
45. With respect to Article 4 of the Convention, the Petitioners argue that Mr. Knights’ detention in inhuman and degrading conditions renders unlawful the carrying out of his death sentence, and that to carry out his execution in such circumstances would constitute a violation of his rights under Articles 4 and 5 of the American Convention. In support of their position, the Petitioners refer to the case of Pratt and Morgan –v- The Attorney General of Jamaica, in which the Privy Council held that prolonged detention under sentence of death would violate the right under the Constitution of Jamaica not to be subjected to inhuman and degrading treatment. The Petitioners argue similarly that the lawfulness of Mr. Knights’ execution cannot be considered in isolation from the detention that preceded it, and that his conditions of detention should be considered to render his execution unlawful in the same manner as prolonged detention on death row.
Article 8 - Unavailability of Legal Aid for Constitutional Motions
46. The Petitioners claim that the State has violated Mr. Knights’ rights under Article 8 of the Convention, because legal aid is not available to enable him to pursue a Constitutional Motion in the domestic courts in Grenada. The Petitioners maintain that Mr. Knights is indigent and therefore lacks the private resources to bring a Constitutional Motion to challenge violations of his Constitutional rights. The Petitioners also contend that there are a dearth of Grenadian lawyers who are willing to represent Mr. Knights on a pro bono basis. The Petitioners therefore claim that the failure of the State to provide Legal Aid for Mr. Knights to pursue a Constitutional Motion denies Mr. Knights an effective remedy, which includes access to the Courts in fact as well as in law. In support of this contention, the Petitioners rely upon the decisions of the European Court of Human Rights in the cases of Golder v. UK, and Airey v. Ireland, in which the European Court held that Article 6 of the European Convention imposed positive obligations on the States concerned to provide legal aid in the interests of justice.
47. The Petitioners argue that a similar interpretation of Article 8 of the American Convention is appropriate. In particular, they argue that Constitutional Motions in the circumstances of Mr. Knights case should be considered criminal proceedings for the purposes of Article 8(2) of the Convention, because they arise from earlier criminal proceedings, and might serve to quash his capital sentence. Consequently, the Petitioners argue that Article 8(2) of the Convention compels the State to provide legal aid to Mr. Knights to pursue a Constitutional Motion relating to the criminal proceedings against him. The Petitioners also argue that the fact that Mr. Knights will be executed if his Constitutional challenge fails, also weighs in favor of this interpretation.
48. The State has not presented any information or arguments to the Commission on the issues of the admissibility and merits of the petition, despite the Commission’s communications to it dated 2nd July 1998, August 18, 1999, May 4, and September 13, 2000. Nor has the State responded to the Commission’s offer of September 13, 2000, to facilitate a friendly settlement.
IV. ANALYSIS ON ADMISSIBILITY
A. Competence of
49. The Convention entered into force for the State of Grenada on July 18, 1978 upon deposit of its instrument of Ratification. The Petitioners allege violations of Articles 4, 5, 7, 8 and 24 of the Convention with respect to acts or omissions which transpired in Grenada after the Convention came into effect for Grenada. In addition, the petition in this case was lodged by the Petitioners, Solicitors from London, United Kingdom, on behalf of Donnason Knights, a national of the State of Grenada. Consequently, the Commission has jurisdiction ratione temporis, ratione materiae, and ratione personae to consider the violations of the Convention alleged in this case. Therefore, the Commission declares that it is competent to address the Petitioner's claims relating to violations of the Convention.
B. Other Grounds of Admissibility
a. Exhaustion of Domestic Remedies
50. Article 46 (1) of the American Convention provides that: “Admission by the Commission of a petition or communication lodged in accordance with Articles 44 or 45 shall be subject to the following requirements: (a) that remedies under domestic law have been pursued and exhausted in accordance with generally recognized principles of international law. The Petitioners argue that Mr. Knights exhausted the domestic remedies of Grenada on May 21, 1998, when the Privy Council dismissed his appeal against conviction and sentence. The State has failed to provide any observations with respect to the admissibility or merits of the Petitioners' petition. Therefore, the Commission finds that the State tacitly waived its right to object to the exhaustion of domestic remedies. The Commission therefore does not find the Petitioners' case to be inadmissible by reason of Article 46(1)(a) of the Convention.
Timeliness of Petition
As concluded above in accordance with Article 46(1)(b) of the
Convention, a petition must be presented within a period of six months
from the date on which the complaining party was notified of the final
judgment at the domestic level. Where no such judgment has been issued
because it has not been possible to exhaust domestic remedies, Article
46(2) of the Convention provides that the 6-month requirement does not
apply. In the present case, the Petitioners argue that the Privy Council
delivered its final judgment dismissing Mr. Knights’ appeal on the 21st
May 1998. This petition was filed on the 29th May 1998 and was therefore
presented within the required timeframe.
In the present case, the State has failed to provide any
observations in respect of the admissibility or merits of the
petition and has failed to demonstrate to the Commission that the
petition has not been timely filed.
Duplication of Procedures
The Petitioners have indicated that the subject of Mr. Knights’
petition has not been submitted for examination under any other procedure
of international investigation. The State has failed to provide any
observations regarding the admissibility or merits of the Petitioners'
petition, and has therefore not contested the issue of duplication. The
Commission therefore finds that the Petitioners' case is not inadmissible
under Articles 46(1)(c) or Article 47(d) of the Convention.
Articles 47(b) and 47(c) state that the Commission shall consider
inadmissible any petition or communication submitted under Articles 44 and
45 if the petition does not state facts that tend to establish a violation
of the rights guaranteed by the Convention, and that the statements of the
petitioner or of the state indicate that the petition or communication is
manifestly groundless or obviously out of order. The Petitioners have
alleged that the state has violated Mr. Knights’ rights under Article 4,
5, 8 and 24 of the Convention. In addition, the Petitioners have provided
factual allegations that tend to establish that the alleged violations may
be well founded. The Commission therefore concludes, without prejudging
the merits of the case, that the Petitioners' case is not barred from
consideration under Articles 47(b) or 47(c) of the Convention.
Conclusions on Admissibility
55. As noted previously, the State has not replied to the Commission’s communications to it of July 2, 1998, August 18, 1999, May 4, and September 13, 2000, to provide the Commission with information that the State deemed relevant pertaining to the exhaustion of domestic remedies and the claims raised in the petition, nor has the State responded to the Commission's communication to it of September 13, 2000, with respect of the possibility of a friendly settlement in the case pursuant to Article 48(1) (f) of the Convention. As a consequence, in determining the admissibility of this case, the Commission has presumed the facts as reported in the petition to be true, provided that the evidence does not lead to a different conclusion, in accordance with Article 42 of the Commission's Regulations.
56. In accordance with the foregoing analysis of the requirements of Article 46 and 47 of the Convention and the applicable provisions of the Commission's Regulations, the Commission decides to declare Mr. Knights’ petition admissible.
The merits of the petition
1. Standard of
57. Before addressing the merits of this case, the Commission deems it advisable to articulate its standard of review in capital punishment cases. In this regard, the Commission is of the view that it must apply a heightened level of scrutiny in such cases. The right to life is widely recognized as the supreme right of the human being, and the conditio sine qua non to the enjoyment of all other rights. The Commission therefore considers that it has an enhanced obligation to ensure that any deprivation of life perpetrated by a State Party through the death penalty complies strictly with the provisions of the Convention, including in particular the right to life provisions of Article 4, the guarantees of humane treatment under Article 5, and the due process and judicial protections guaranteed under Articles 8 and 25 of the Convention. This “heightened scrutiny [test is consistent with the restrictive approach to the death penalty provisions of human rights treaties advocated by other international authorities.” In particular, the Inter-American Court has concluded that the American Convention has adopted an approach in respect of the death penalty that is “incremental” in character, whereby, “without going so far as to abolish the death penalty, the Convention imposes restrictions designed to delimit strictly its application and scope, in order to reduce the application of the penalty to bring about its gradual disappearance.”
58. The Commission also notes that the heightened scrutiny test is not precluded by the fourth instance formula adopted by the Commission. Pursuant to the “fourth instance formula,” the Commission in principle will not review the judgments issued by the domestic courts acting within their competence and with due judicial guarantees. The fourth instance formula does not, however, preclude the Commission from considering a case where the petitioner’s allegations entail a possible violation of any of the rights set forth in the American Convention. In the case of Clifton Wright, for example, a Jamaican citizen who alleged that a judicial error resulted in a death sentence against him, the Commission concluded that the conviction and sentence were undermined by the record in the case, but that the appeals process in Jamaica did not permit for a correction of the situation. Consequently, the Commission found that Jamaica had violated the petitioner’s right to judicial protection under Article 25 of the Convention, and recommended that the Government of Jamaica order an investigation of the matter and afford Mr. Wright a judicial remedy to have the inconsistency corrected. Because Mr. Wright had been denied effective domestic judicial protection, and was the victim of a discrete human rights violation under the American Convention, the fourth instance formula did not apply in his case.
The Commission will therefore review Mr. Knights' allegations
pertaining to the imposition of capital punishment with a heightened level
of scrutiny, to ensure that the right to life as prescribed under the
American Convention is properly respected. In addition, the fourth
instance formula will not preclude the Commission from adjudicating Mr.
Knights’ rights insofar as those claims disclose possible violations of
Alleged Violations of the American Convention
As detailed previously, the Petitioners allege: (i) violations of
Articles 4, 5, 8, and 24 of the Convention, relating to the mandatory
nature of the death penalty and the process for granting amnesty, pardon
or commutation of sentence in Grenada; (ii) violations of Article 5 of the
Convention pertaining to Mr. Knights’ conditions of detention; and (iii)
violations of Article 8 of the Convention, relating to the unavailability
of legal aid for Constitutional Motions in Grenada.
As noted previously, the State has not replied to the
Commission’s communications to it of 2nd July, 1998, August
18, 1999, May 4 and September 13, 2000, to provide the Commission with
information that the State deemed relevant pertaining to the exhaustion of
domestic remedies and the claims raised in the petition, nor has the State
responded to the Commission's communication of September 13, 2000
regarding the possibility of a friendly settlement in the case. As a
consequence, in determining the merits of the Petitioners' allegations,
the Commission will presume the facts as reported in the petition to be
true, provided that the evidence does not lead to a different conclusion,
in accordance with Article 42 of the Commission's Regulations.
Articles 4, 5, 8 and 24 - The Mandatory Death Penalty
Mr. Knights was sentenced to a Mandatory Death Penalty
Mr. Knights was convicted of murder pursuant to Section 234 of the
Criminal Code of Grenada, which provides that "[w]hoever commits
murder shall be liable to suffer death and sentenced to death." The crime of murder in
Grenada can therefore be regarded as subject to a “mandatory death
penalty,” namely a death sentence that the law compels the sentencing
authority to impose based solely upon the category of crime for which the
defendant is found responsible. Once a defendant is found guilty of the
crime of murder, the death penalty must be imposed. Accordingly, a court
in imposing the death sentence cannot take mitigating circumstances into
The Commission will first analyze the compatibility of the
mandatory death sentence for the crime of murder with Articles 4, 5 and 8
of the Convention, in light of the terms of those provisions, their
underlying principles, and relevant international and domestic precedents.
The Commission will then determine whether the State has violated Mr.
Knights’ rights under the Convention, because of the manner in which Mr.
Knights was sentenced to death.
Articles 4, 5, and 8 of the American Convention and the Mandatory
In light of the allegations raised by Mr. Knights, the Commission
must first ascertain whether the practice of imposing the death penalty
for the crime of murder through mandatory sentencing is compatible with
Article 4 (right to life), Article 5 (right to humane treatment), and
Article 8 (right to a fair trial) of the American Convention and the
principles underlying those provisions:
Article 4 of the American Convention provides as follows:
4. Right to Life
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.
In countries that have not abolished the death penalty, it may be
imposed only for the most serious crimes and pursuant to a final judgment
rendered by a competent court and in accordance with a law establishing
such punishment, enacted prior to the commission of the crime. The
application of such punishment shall not be extended to crimes to which it
does not presently apply.
(3) The death penalty shall not be reestablished in states that have
In no case shall capital punishment be inflicted for political
offenses or related common crimes. 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.
(5) Every person condemned to death shall have the right to apply for amnesty, pardon, or commutation of sentence, which may be granted in all cases. Capital punishment shall not be imposed while such a petition is pending decision by the competent authority.
65. Article 4 of the Convention permits States Parties that have not abolished the death penalty to continue to impose it. At the same time, the Convention strictly regulates the manner in which States Parties may impose the death penalty in their respective States. This restrictive approach under the Convention to the perpetuation of the death penalty mirrors the treatment of the death penalty generally under contemporary international and, as Part IV of this Report will indicate, domestic practice.
66. More particularly, drawing in part upon the past experience of international human rights bodies, several general principles of interpretation can be identified in respect of the death penalty provisions of international human rights instruments in general, and Article 4 of the Convention in particular. First, the supervisory bodies of international human rights instruments have subjected the death penalty provisions of their governing instruments to a rule of restrictive interpretation. In its Advisory Opinion on Restrictions to the Death Penalty under Articles 4(1) and 4(4) of the Convention, for example, the Inter-American Court of Human Rights adopted a restrictive approach to Article 4 of the Convention, finding that “the text of the article as a whole reveals a clear tendency to restrict the scope of this penalty both as far as its imposition and its application are concerned”.
67. Other international human rights supervisory bodies have similarly afforded a strict interpretation of the death penalty provisions in human rights treaties. The U.N. Human Rights Committee has held in the context of Article 6 of the ICCPR, which parallels Article 4 of the Convention in certain respects, that the law must strictly control and limit the circumstances in which a person may be deprived of his life by the authorities of the state. The Committee has accordingly determined that the imposition of a sentence of death upon conclusion of a trial in which the provisions of the Covenant have not been respected constitutes, if no further appeal against the sentence is possible, a violation of Article 6 of the Covenant. Its recommended remedies in such cases have included release, and commutation of the death sentence. The U.N. Special Rapporteur on Extra-Judicial, Summary or Arbitrary Executions has likewise emphasized that proceedings leading to the imposition of capital punishment must conform to the highest standards of independence, competence, objectivity and impartiality of judges and juries and other strict requirements of due process. This Commission has similarly closely scrutinized the circumstances of death penalty cases to ensure strict compliance with the requirements of due process and judicial protection.
68. It is also generally recognized that the death penalty is a form of punishment that differs in substance as well as in degree in comparison to other forms of punishment. It is the absolute form of punishment that results in the forfeiture of the most valuable of rights, the right to life, and once implemented, is irrevocable and irreparable. As the United States Supreme Court has observed, “the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” In the Commission's view, the fact that the death penalty is an exceptional form of punishment must also be considered in interpreting Article 4 of the Convention.
Finally, with respect to the restrictions prescribed in Article 4
of the American Convention in particular, the Inter-American Court has
identified three principal limitations explicitly prescribed in Article 4
on the ability of States Parties to the Convention to impose the death
three types of limitations can be seen to be applicable to States Parties
which have not abolished the death penalty. First, the imposition or
application of this sanction is subject to certain procedural requirements
whose compliance must be strictly observed and reviewed. Second, the
application of the death penalty must be limited to the most serious
common crimes not related to political offenses. Finally,
certain considerations involving the person of the defendant, which may
bar the imposition or application of the death penalty, must be taken into
70. The Court’s observations therefore accentuate the significance of strict adherence to and review of due process guarantees in implementing the death penalty in accordance with Article 4 of the Convention. Moreover, as part of that process, the Court suggests that certain circumstances of individual offenses and individual defendants may bar the imposition or application of the death penalty altogether, and therefore must be taken into account in sentencing an individual to death.
71. It is in light of the foregoing interpretive rules and principles that the Commission must determine whether the practice of imposing the death penalty through mandatory sentencing is compatible with the terms of Articles 4, 5 and 8 of the Convention and the principles underlying those provisions.
72. In the Commission’s view, several aspects of imposing mandatory death penalties for the crime of murder are problematic in the context of a proper interpretation and application of the Convention. First, it is well-recognized that the crime of murder can be perpetrated in the context of a wide variety of mitigating and aggravating circumstances, with varying degrees of gravity and culpability. This conclusion is illustrated by the broad definition of murder under Grenada’s law, as the unlawful killing of another person with the intent to kill or to cause unlawful harm or injury. It is also illustrated by the circumstances of Mr. Knights’ case. Notwithstanding the existence of such disparities, however, the mandatory death penalty, seeks to impose capital punishment in all cases of murder, without distinction. It subjects an individual who, for example, commits a murder in a spontaneous act of passion or anger, to the equivalent and exceptional punishment as an individual who executes a murder after carefully planning and premeditation.
73. Mandatory sentencing by its very nature precludes consideration by a court of whether the death penalty is an appropriate, or indeed permissible, form of punishment in the circumstances of a particular offender or offense. Moreover, by reason of its compulsory and automatic application, a mandatory sentence cannot be the subject of an effective review by a higher court. Once a mandatory sentence is imposed, all that remains for a higher court to review is whether the defendant was found guilty of a crime for which the sentence was mandated.
74. In the Commission’s view, these aspects of mandatory death sentences cannot be reconciled with Article 4 of the Convention, in several respects. As noted above, the mandatory death penalty in Grenada imposes the death penalty on all individuals convicted of murder, despite the fact that the crime of murder can be committed with varying degrees of gravity and culpability. Not only does this practice fails to reflect the exceptional nature of the death penalty as a form of punishment, but, in the view of the Commission, it results in the arbitrary deprivation of life, contrary to Article 4(1) of the Convention.
75. More particularly, imposing a mandatory penalty of death for all crimes of murder prohibits a reasoned consideration of each individual case to determine the propriety of the punishment in the circumstances, despite the fact that murder can be committed under widely-differing circumstances. By its nature, then, this process eliminates any reasoned basis, for sentencing a particular individual to death and fails to allow for a rational and proportionate connection between individual offenders, their offenses, and the punishment imposed on them. Implementing the death penalty in this manner therefore results in the arbitrary deprivation of life, within the ordinary meaning of that term and in the context of the object and purpose of Article 4(1) of the Convention.
76. Accepted principles of treaty interpretation suggest that sentencing individuals to the death penalty through mandatory sentencing and absent consideration of the individual circumstances of each offender and offense leads to the arbitrary deprivation of life within the meaning of Article 4(1) of the Convention. Article 31(1) of the Vienna Convention on the Law of Treaties provides that a treaty shall be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.” The ordinary meaning of the term “arbitrary” connotes an action or decision that is based on random or convenient selection or choice rather than on reason or nature. The U.N. Human Rights Committee suggested a similar meaning for the term arbitrary in the context of Article 6(1) of the ICCPR, in the case of Kindler v. Canada. In that case, the complainant, a citizen of the United States, was ordered extradited from Canada to face a possible death sentence in the State of Pennsylvania for a conviction of murder. The Committee found that Canada did not violate the complainant’s right under Article 6(1) of the ICCPR not to be arbitrarily deprived of his life, by extraditing him to the United States without seeking assurances from the United States’ Government that the death penalty would not be imposed. At the same time, the Committee suggested that the decision not to refuse extradition or to seek assurances must be shown to have been based upon a reasoned consideration of the circumstances of Mr. Kindler’s case:
States must be mindful of the possibilities for the protection of life
when exercising their discretion in the application of extradition
treaties, the Committee does not find that the terms of article 6 of the
Covenant necessarily require Canada to refuse to extradite or to seek
assurances. The Committee notes that the extradition of Mr. Kindler would
have violated Canada’s obligations under article 6 of the Covenant, if
the decision to extradite without assurances had been taken arbitrarily or
summarily. The evidence before the Committee reveals, however, that the
Minister of Justice reached a decision after hearing argument in favor of
seeking assurances. The Committee further takes note of the reasons given
by Canada not to seek assurances in Mr. Kindler’s case, in particular,
the absence of exceptional circumstances, the availability of due process,
and the importance of not providing a safe haven for those accused of or
found guilty of murder.
77. The Committee has therefore suggested that an arbitrary decision includes one that is taken in the absence of a reasoned consideration of the circumstances of the case in respect of which the decision is made. In this respect, the mandatory death penalty can be regarded as arbitrary within the ordinary meaning of that term. The decision to sentence a person to death is not based upon a reasoned consideration of a particular defendant’s case, or upon objective standards that guide courts in identifying circumstances in which the death penalty may or may not be an appropriate punishment. Rather, the penalty flows automatically once the elements of the offense of murder have been established, regardless of the relative degree of gravity of the offense or culpability of the offender.
78. The mandatory death penalty cannot be reconciled with Article 4 of the Convention in another significant respect. As noted previously, the Inter-American Court has emphasized several restrictions upon the implementation of the death penalty that flow directly from the terms of Article 4 of the Convention. These include considerations relating to the nature of a particular offense, for example whether it can be considered a political or related common offense, as well as factors relating to the circumstances of an individual offender, for example whether the offender was under the age of 18 or pregnant at the time he or she committed the crime for which the death penalty may be imposed. Article 4 of the Convention itself presumes that before capital punishment may be lawfully imposed, there must be an opportunity to consider certain of the individual circumstances of an offender or an offense. By its very nature, however, mandatory sentencing imposes the death penalty for all crimes of murder and thereby precludes consideration of these or any other circumstances of a particular offender or offense in sentencing the individual to death.
79. Similarly, by reason of its compulsory nature, the imposition of a mandatory death sentence precludes any effective review by a higher court as to the propriety of a sentence of death in the circumstances of a particular case. As indicated previously, once a mandatory death sentence is imposed, all that remains for a higher court to review is whether the defendant was properly found guilty of a crime for which the sentence of death was mandated. There is no opportunity for a reviewing tribunal to consider whether the death penalty was an appropriate punishment in the circumstances of the particular offense or offender. This consequence cannot be reconciled with the fundamental principles of due process under Articles 4 and 8 of the Convention that govern the imposition of the death penalty, which, as the Inter-American Court has recognized, include strict observance and review of the procedural requirements governing the imposition or application of the death penalty. The absence of effective review further illustrates the arbitrary nature of implementing the death penalty through mandatory sentencing, and leads the Commission to conclude that this practice cannot be reconciled with the terms of Article 4 of the Convention and its underlying principles.
80. The Commission is also of the view that imposing the death penalty in all cases of murder is not consistent with the terms of Article 5 of the Convention or its underlying principles. Article 5 of the Convention provides as follows:
Article 5 – Right to Humane Treatment
(1) Every person has the right to have his physical, mental, and moral integrity respected.
No one shall be subjected to torture or to cruel, inhuman, or
degrading punishment or treatment. All persons deprived of their liberty
shall be treated with respect for the inherent dignity of the human
(3) Punishment shall not be extended to any person other than the
(4) Accused persons shall, save in exceptional circumstances, be
segregated from convicted persons, and shall be subject to separate
treatment appropriate to their status as unconvicted persons.
(5) Minors while subject to criminal proceedings shall be separated from
adults and brought before specialized tribunals, as speedily as possible,
so that they may be treated in accordance with their status as minors.
(6) Punishments consisting of deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoners.
Article 7 of the ICCPR provides: “No one shall be subjected to
torture or to cruel, inhuman or degrading treatment or punishment.
In particular, no one shall be subjected without his free
consent to medical or scientific experimentation.”
Article 10(1) of the ICCPR provides: “All persons deprived of their
liberty shall be treated with humanity and with respect for the
inherent dignity of the human person."
 U.N.H.R.C., Antonaccio v. Uruguay, U.N. Doc. A/37/40.
 U.N.H.R.C., De Voituret v. Uruguay, U.N. Doc. A/39/40.
U.N.H.R.C., Mukong v. Cameroon, Communication Nº 458/1991.
Article 3 of the European Convention provides: “No one shall be
subjected to torture or to inhuman and degrading treatment or
Eur. Court H.R., Greek Case, 12 YB 1 (1969);
Eur. Court H.R., Cyprus v. Turkey, Application nos. 6780/74 and
Pratt and Morgan –v- The Attorney General of Jamaica  2
Golder v. UK (1975) Series A Nº 18.
Airey v. Ireland (1979) Series A Nº 32.
Article 6(3) of the European Convention provides: “Everyone charged
with a criminal offence has the following minimum rights: (c) to
defend himself in person or through legal assistance of his own
choosing or, if he has not sufficient means to pay for legal
assistance, to be given it free when the interests of justice so
 I/A Court H.R., Viviana Gallardo et al.
Judgment of November 13, 1981, Nº
G 101/81. Series A, para. 26).
I/A Court H.R., Neira Alegria Case, Preliminary Objections,
Judgment, 11 December 1991 pp. 44-45, at paras. 25-31.
U.N.H.R.C., Baboheram-Adhin et al. v. Suriname, Communications
Nos. 148-154/1983, Adopted 4 April 1985, para. 14.3 (observing that
the right to life under Article 6(1) of the International Covenant on
Civil and Political Rights is the “supreme right of the human
para. 14.3 (finding that the law must strictly control and limit the
circumstances in which a person may be deprived of his life by the
authorities of the state.); Report by the U.N. Special Rapporteur on
Extra-judicial Executions, Mr. Bacre Waly Ndiaye, submitted pursuant
to Commission on Human Rights Resolution 1994/82, Question of the
Violation of Human Rights and Fundamental Freedoms in any part of the
World, with particular reference to Colonial and Other Dependent
Countries and Territories, U.N. Doc.E/CN.4/1995/61 (14 December 1994)
(hereinafter “Ndiaye Report”), para. 378 (commenting upon fair
trial standards relating to capital punishment as follows:
in many countries the law in force takes account of the standards of
fair trials as contained in the pertinent international instruments,
this alone does not exclude that a death sentence may constitute an
extra-judicial, summary or arbitrary execution. It is the application
of these standards to each and every case that needs to be ensured
and, in case of indications to the contrary, verified, in accordance
with the obligation under international law to conduct exhaustive and
impartial investigations into all allegations of violation of the
right to life.).
Court H.R., Restrictions to the Death Penalty (Arts. 4(2) and 4(4)
American Convention on Human Rights), Advisory Opinion OC-3/83, (8
September 1983), Annual Report
1984, p. 31, para. 57.
I/A Comm. H.R., Santiago Marzioni, Report Nº 39/96, Case Nº
11.673 (Argentina), 15 October 1996, Annual
Report 1996, p. 76.
See also William Andrews, 1997 Annual Report p. 614.
Section 234 of the Criminal Code, Title XVIII, Cap. 76 ,
p. 790, contains a proviso to the death penalty for a crime of
murder. The proviso
that the sentence of death shall not be pronounced or recorded against
a person convicted of murder if it appears to the Court that at the
time when the offence was committed he was under the age of eighteen
years; but, in lieu of such punishment, the Court shall sentence the
juvenile offender to be detained during Her Majesty’s pleasure, and,
if so sentenced, he shall, notwithstanding anything in the other
provisions of any other Law or Ordinance, be liable to be detained in
such place and under such conditions as the Governor may direct, and
whilst so detained shall be deemed to be in legal custody.
Opinion OC-3/83, supra, at 31, para. 52.
6 of the ICCPR provides as follows:
Every human being has the inherent right to life. This right
shall be protected by law. No one shall be arbitrarily deprived of his
In countries which have not abolished the death penalty,
sentence of death may be imposed only for the most serious crimes in
accordance with the law in force at the time of the commission of the
crime and not contrary to the provisions of the present Covenant and
to the Convention on the Prevention and Punishment of the Crime of
Genocide. This penalty can only be carried out pursuant to a final
judgment rendered by a competent court.
When deprivation of life constitutes the crime of genocide, it
is understood that nothing in this article shall authorize any State
Party to the present Convention to derogate in any way from any
obligation assumed under the provisions of the Convention on the
Prevention and Punishment of the Crime of Genocide.
Anyone sentenced to death shall have the right to seek pardon
or commutation of the sentence. Amnesty, pardon or commutation of the
sentence of death may be granted in all cases.
Sentence of death shall not be imposed for crimes committed by
persons below eighteen years of age and shall not be carried out on
Nothing in this article shall be invoked to delay or to prevent
the abolition of capital punishment by any State Party to the present
Baboheram-Adhin et al. v. Suriname, supra, para. 14.3.
e.g. U.N.H.R.C., Anthony McLeod v.
Jamaica, Communication Nº 734/1997, U.N. Doc. Nº CCPR/C/62/734/1997.
e.g. U.N.H.R.C., Patrick Taylor v.
Jamaica, Communication Nº 707/1996, U.N. Doc. Nº CCPR/C/60/D/707/1996.
Report, supra, para. 377. With respect to international
sentencing standards more generally, the International Criminal
Tribunal for the Former Yugoslavia provides one of the few modern
examples of an international tribunal adjudicating serious violations
of international humanitarian law, including genocide. While the
penalty imposed by the Tribunal is limited to imprisonment, the
Tribunal’s governing statute specifically provides that that’
“[i]n imposing the sentences, the Trial Chambers should take into
account such matters as the gravity of the offence and the individual
circumstances of the convicted person.” Statute for the
International Criminal Tribunal for the former Yugoslavia, Annex to
the Report of the Secretary-General Pursuant to Paragraph 2 of
Security Council Resolution 808, U.N., Doc. S/25704/Add.1/Corr.1
(1993), Art. 24. See similarly Statute for the International
Criminal Tribunal for Rwanda, Annex to Security Council Resolution
955, U.N. SCOR, 49th Sess., 3453 mtg., U.N. Doc. S/RES/955
(1994), Art. 23.
Clifton Wright supra..
v. North Carolina 49 L Ed 2d 944 (U.S.S.C.).
Id. at 31, para. 55.
1953, the British Commission on Capital Punishment noted that “there
is perhaps no single class of offenses that varies so widely both in
character and culpability as the class comprising those which may fall
within the comprehensive common law definition of murder…no one
would now dispute that for many of these crimes it would be monstrous
to inflict the death penalty. The view is widely accepted that this
penalty should be reserved for the more heinous offenses of murder.”
Royal Commission on Capital Punishment, September 1953 Cmnd 8932, Exh.
20. Even in those jurisdictions in which a distinction has been drawn
between capital and non-capital murder, experience indicates that
varying degrees of culpability exist within categories of capital
murder which may warrant discriminate application of the death
penalty. See e.g. Woodson v. North Carolina, 49 L ED 2d
944, 956, n. 31 (indicating that data compiled on discretionary jury
sentencing of persons convicted of capital murder in the United States
reveal that the penalty of death is generally imposed in less than 20%
of the cases.).
e.g. R. v. Cunningham  A.C. 566 (P.C.).
Webster’s Third International Dictionary.
U.N.H.R.C., Kindler v. Canada, Communication Nº 470/1991, U.N.
Doc. CPR/C/48/D/470/1991 (1993).
Id., para. 14.6.