REPORT Nº 58/02
On April 28, 2000, the Inter-American Commission on Human
Rights (the “Commission") received a petition from Mr. Saul
Lehrfreund of the London, United Kingdom law firm of Simons Muirhead
& Burton (the “Petitioners") on behalf of Denton Aitken, a
death row inmate in the State of Jamaica ("Jamaica" or the
The petition alleged that the State tried and convicted Mr.
Aitken for the crime of capital murder and sentenced him to death by
hanging on October 31, 1997 pursuant to Jamaica's Offences Against the Person Act, 1864, as amended by the
Offences Against the Person (Amendment) Act 1992.
The petition also alleged that the State is responsible for
violating Mr. Aitken's rights under the American Convention on Human
Rights (the “Convention”) in connection with the criminal
proceedings against him based upon the following grounds:
violations of Articles 4(1), 4(2), 5(1) and 5(2) of the
Convention, relating to the mandatory nature of the death penalty
imposed upon Mr. Aitken;
a violation of Article 4(6) of the Convention, relating to the
process available to Mr. Aitken to seek amnesty, pardon or commutation
of sentence in Jamaica;
violations of Articles 5(1) and 5(2) of the Convention,
relating to Mr. Aitken’s conditions of detention and the method of
execution in Jamaica;
violations of Articles 8(2)(c), 8(2)(e) and 4(2) of the
Convention, relating to the adequacy of legal representation provided
to Mr. Aitken during his trial;
violations of Articles 24 and 25 of the American Convention,
relating to Mr. Aitken’s inability to pursue a Constitutional Motion
The Commission had not previously made an admissibility
determination pursuant to Articles 46 and 47 of the Convention
concerning the complaints presented in Mr. Aitken’s petition.
After having considered the matter, the Commission has decided
to declare admissible the claims presented on behalf of Mr. Aitken.
In addition, upon consideration of the merits of Mr. Aitken’s
complaint, the Commission reached the following conclusions:
(a) The State is responsible for violating
Articles 4(1), 5(1), 5(2) and 8(1) of the Convention in respect of Mr.
Aitken, in conjunction with violations of Articles 1(1) and 2 of the
Convention, by sentencing him to a mandatory death penalty.
(b) The State is responsible for violating Article 4(6) of the Convention in respect of Mr. Aitken, in conjunction with violations of Articles 1(1) and 2 of the Convention, by failing to provide him with an effective right to apply for amnesty, pardon or commutation of sentence.
The State is responsible for violating Articles 5(1) and 5(2)
of the Convention in respect of Mr. Aitken, in conjunction with
violations of Article 1(1) of the Convention, by reason of his
conditions of detention.
The State is responsible for violating Articles 8(1) and 25 of
the Convention in respect of Mr. Aitken, in conjunction with
violations of Article 1(1) of the Convention, by reason of the denial
to Mr. Aitken of recourse to a Constitutional Motion for the
determination of his rights under domestic law and the Convention in
connection with the criminal proceedings against him;
The State is not responsible for violations of Article 4 or 8
of the Convention relating to the adequacy of his legal representation
PROCEEDINGS BEFORE THE COMMISSION
Petition and Observations
Following the receipt of Mr. Aitken’s petition on April 28,
2000, the Commission opened Case Nº 12.275 and transmitted the
pertinent parts of the petition to the State on May 2, 2000, with a
request that the State supply information with respect to the
communication within 90 days as established in the Commission's prior
By note dated August 16, 2000, the Commission reiterated its
request for information from the State in relation to Mr. Aitken’s
case. In a communication
dated September 20, 2000, the State requested that the Commission
grant it additional time to prepare a response in Mr. Aitken’s case,
in light of the September 12, 2000 decision of the Judicial Committee
of the Privy Council in the matter Neville
Lewis v. Jamaica.
dated September 22, 2000, the Commission granted the State’s request
for an extension of time to deliver its observations, to 30 days from
the date of the Commission’s communication.
By communication dated October 5, 2000, which was received by
the Commission on October 6, 2000, the Commission received information
from the State respecting Mr. Aitken’s petition.
By note dated October 10, 2000 the Commission transmitted the
pertinent parts of the State's observations to the Petitioners, with a
response requested within 30 days.
In a communication dated August 16, 2000, the Commission
reiterated its request for information from the Petitioners.
By letter dated November 9, 2000 and received by the Commission
on the same date, the Petitioners delivered a response to the State's
observations on Mr. Aitken’s petition.
In a note dated November 13, 2000, the Commission transmitted
the pertinent parts of the Petitioners' observations to the State,
with a response requested within 30 days.
9. In a note dated December 15, 2000 and received by the Commission on December 19, 2000, the State provided a response to the Petitioners' observations of November 9, 2000. By communication dated December 20, 2000, the Commission transmitted the pertinent parts of the State's response to the Petitioners, with a response requested within 30 days of receipt.
In a communication dated January 19, 2001 and received by the
Commission on January 22, 2001, the Petitioners delivered observations
on the State’s December 15, 2000 response.
Commission in a note dated January 24, 2001 transmitted the
pertinent parts of the Petitioners’ reply to the State with a
response requested within 30 days.
In a communication dated February 21, 2001 and received by the
Commission on February 22, 2001, the Commission received the State’s
response to the Petitioners’ reply.
B. Precautionary Measures
Contemporaneously with the transmission of the pertinent parts
of the petition in this matter to the State, the Commission requested
pursuant to Article 29(2) of its Regulations that the State take
precautionary measures to stay Mr. Aitken’s execution until such
time as the Commission had an opportunity to examine his case and the
threat of irreparable harm to Mr. Aitken no longer persisted.
This request was made on the basis that if the State was to
execute Mr. Aitken before the Commission had an opportunity to examine
his case, any eventual decision would be rendered moot in terms of
available remedies and irreparable harm would be caused to Mr. Aitken.
The Commission did not receive a response from the State to its
request for precautionary measures.
By communications dated May 21, 2001 to the Petitioners and to
the State, the Commission placed itself at the disposal of the
parties, with a view to reaching a friendly settlement pursuant to
Article 48(1)(f) of the Convention on the basis of respect for the
human rights recognized therein.
The Commission also requested that the parties provide the
Commission with a response to the Commission's offer within 30 days of
receipt of the communication, in the absence of which the Commission
would continue with consideration of the matter.
In a note dated May 31, 2001, the State indicated that, in its
view, there were no outstanding issues that would necessitate the
scheduling of friendly settlement proceedings, and urged the
Commission to continue with its consideration of the case "with a
view to delivering its views in a timely manner."
In a letter dated June 15, 2001, the Petitioners informed the
Commission that in the circumstance of the case the commutation of Mr.
Aitken’s death sentence was the only appropriate way of reaching a
friendly settlement in the matter, but that should the State undertake
to commute Mr. Aitken’s death sentence the Petitioners would
consider that a friendly settlement pursuant to Article 48(1)(f) of
the Convention had been reached.
By note dated June 18, 2001, the Commission informed the
Petitioners that, in light of the State’s position on the Commission’s
offer, it was apparent that a friendly settlement of the matter was
not possible and therefore that the Commission would continue to
process the matter in accordance with the provisions of the American
Convention and the Commission’s Rules of Procedure.
III. POSITIONS OF THE PARTIES
Position of the Petitioners
Background to the Case
According to the record in this case, Denton Aitken was
arrested and charged with the July 1, 1996 murder of Curtis Russell in
the course or furtherance of a robbery. Mr. Aitken was subsequently tried for the murder from October
29 to October 31, 1997. On
October 31, 1997, Mr. Aitken was convicted of capital murder and
sentenced to death by hanging. He
subsequently appealed his conviction to the Court of Appeal of
Jamaica, and his appeal was dismissed on June 28, 1999.
Mr. Aitken then lodged a petition for Special Leave to Appeal
as a Poor Person to the Judicial Committee of the Privy Council, and
the Privy Council dismissed his petition on March 6, 2000.
The prosecution alleged that in the afternoon of July 1, 1996,
Mr. Aitken was one of two gunmen who entered the business premises of
Curtis Russell, robbed him of a firearm and an unspecified amount of
money and shot him in the course of that enterprise.
The prosecution's case was based in part upon the testimony of
two eyewitnesses. The
first, Christopher Burton, an off-duty police officer, testified that
at approximately 4:00 p.m. on July 1, 1996, he was at his garage in
the vicinity of Russell’s shop he observed Russell enter the shop
and subsequently saw two other men enter the shop, one of whom he
identified as some one he knew both as Denton Aitken and “Talbert.”
He claimed to have known Aitken for about three years and that he saw
Aitken at least once a week in the Cockburn Garden area.
Burton also testified that as the two individuals entered the
shop, Aitken removed a hand gun from his waist and that three or four
second later he heard an explosion and saw the men running from the
shop, with Aitken carrying two hand guns and the other man carrying
money in notes in one hand and a hand gun in the other.
Burton then entered the shop where he saw Russell bleeding on
The second eyewitness, Neville Haynes, testified that he and
three other individuals were working at Russell’s gas shop on the
day in question, when two men approached and asked him for the price
of a gas cylinder. The
men entered the shop, following which Haynes heard voices, went to the
shop door, and saw a man with a gun.
Haynes then turned and ran and heard two gunshots as he fled. Haynes also indicated that he could not remember the faces of
either of the two men. As
a consequence, the only evidence tying Aitken to the murder was
Christopher Burton’s eyewitness testimony.
In his defense, Mr. Aitken gave an unsworn statements from the
dock indicated that he knew nothing of the offense with which he was
charged. He also
challenged the credibility, good faith and accuracy of the prosecution’s
Position of the Petitioners on Admissibility
The Petitioners in Mr. Aitken’s case submit that his petition
is admissible. In
particular, the Petitioners claim that Mr. Aitken has exhausted all
available domestic remedies because his lack of private means and
unavailability of legal aid prohibit him from pursuing a
Constitutional Motion before the Supreme Court of Jamaica.
Further, according to the Petitioners, the subject matter of
Mr. Aitken’s case has not been submitted for examination under any
other procedure of international investigation or settlement.
Position of the Petitioners on the Merits
(a) Articles 4 and 5 of the Convention -
Mandatory Nature of the Death Penalty
The Petitioners allege that the State acted contrary to
Articles 4(1), 4(2), 5(1) and 5(2) of the American Convention by
sentencing Mr. Aitken to a mandatory death penalty for the crime of
capital murder. In
particular, the Petitioners argue that the imposition of the death
penalty in Mr. Aitken’s case violates the American Convention
because it is not reserved for the most serious offenses as required
by Article 4(2) of the Convention, and because executing an individual
without an individualized sentencing hearing is cruel and violates his
rights under Articles 5(1) and 5(2) of the Convention.
23. In making these submissions, the Petitioners emphasize that, while the Convention does not prohibit the death penalty, this does not relieve a state of its obligation to administer capital punishment in a way that is neither arbitrary nor cruel.
24. The Petitioners first argue that the requirement under Article 4(2) of the Convention that the death penalty be imposed only for the most “serious offenses” should be interpreted so as to encompass more than the elements of a criminal offense, and in particular should be interpreted to require consideration of all factors of a criminal offense, including those referable to an individual applicant. In this regard, the Petitioners submit that as matter of common sense, it is not possible to say that the murder of a prison officer is more serious than and will always be more serious than, for example, the murder of a child. It therefore follows, argue the Petitioners, that the mandatory death penalty produces arbitrary results.
25. In addition, it is argued on behalf of Mr. Aitken that the mandatory death penalty violates the prohibition against cruel and unusual punishment or treatment under Article 5 of the Convention. The Petitioners suggest in this respect that Article 5 of the Convention is based on the idea that each human being has rights that must be respected even when punishment is to be inflicted.
In support of their position that the mandatory death penalty
for capital murder contravenes the American Convention, the
Petitioners refer to decisions of the highest courts of several common
law countries, including the United States of America
death penalty has been retained.
They also rely upon previous decisions by this Commission in
cases such as Haniff Hilaire v. Republic of Trinidad and Tobago, Report Nº 66/99
and Rudolph Baptiste v. Grenada,
Report Nº 38/00. According
to the Petitioners, these authorities support the proposition that
States that wish to retain the death penalty must provide for some
form of "individualized sentencing," where defendants are
permitted to present mitigating factors concerning the particular
circumstances of the case and the personal characteristics of the
offender in determining whether the death penalty is an appropriate
punishment. They also
suggest that the death sentence should be imposed only in the most
exceptional cases where there is no reasonable prospect of reformation
and the objects of punishment would not be achieved by any other
In their January 19, 2001 response to the State’s December
15, 2000 observations, the Petitioners also argue that the
availability in Jamaica of the exercise of the Prerogative of Mercy is
not consistent with the standards under Articles 4, 5 and 8 of the
American Convention applicable to the mandatory death sentences and is
therefore not an adequate substitute for individualized sentencing in
Article 4(6) of the Convention – Prerogative of Mercy
The Petitioners submit that Mr. Aitken’s right contained in
Article 4(6) of the Convention to apply for mercy has been violated,
as he has no right to a fair hearing before the Jamaican Privy
Council. In this respect,
the Petitioners explain that the power of the Executive in Jamaica to
commute death sentences through the exercise of the Prerogative of
Mercy is regulated by Sections 90 and 91 of the Constitution of
Jamaica. According to the Petitioners, the Governor-General of Jamaica
has the power to commute any death sentence under Section 90(1) of the
Constitution, but must act in accordance with the advice and
recommendation of the Jamaican Privy Council pursuant to Section 90(2)
of the Constitution.
The Petitioners also assert that under Jamaican domestic law, a
prisoner has no right to a fair hearing before the Jamaican Privy
Council. They allege that
the Jamaican Privy Council is free to regulate its own procedure, and
in so doing does not have to afford the prisoner a fair hearing, and
does not have regard to any procedural protections for the prisoner
such as the right to make written or oral submissions, or the right to
be supplied with the material on which the Jamaican Privy Council will
make its decision. The
Petitioners state further than the functions of the Jamaican Privy
Council under sections 90 and 91 of the Constitution are not
susceptible to judicial supervision or control.
In this respect, the Petitioners cite the decisions of the
Judicial Committee of the Privy Council in the cases Reckley
v. Minister of Public Safety (Nº 2)
and de Freitas
for the proposition that the exercise of the power of
pardon involves an act of mercy that is not the subject of legal
rights and therefore is not subject to judicial review, and observe
that these decisions have been heavily criticized by a number of
In this context, the Petitioners submit that the right to apply
for mercy under Article 4(6) of the Convention must be interpreted so
as to be an effective right, which in turn requires the State to
afford a condemned individual certain procedural rights, including the
right to be notified of the period during which the Jamaican Privy
Council considers his or her case, the right to be supplied with the
materials before the Privy Council and the right to submit materials
and representations prior to the hearing.
The Petitioners also claim that condemned prisoners should be
afforded the right to an oral hearing before the Privy Council, and to
place before the Privy Council and to have it consider the decisions
and recommendations of international human rights bodies.
According to the Petitioners, these requirements follow from
the plain wording of Article 4(6) of the Convention, and are
consistent with the requirement under Article 4(2) that the death
penalty should be imposed "only for the most serious
Based upon these submissions, the Petitioners contend that Mr.
Aitken’s right to apply for mercy under Article 4(6) of the
Convention is violated under Jamaican domestic law.
In response to the State’s observations of October 5, 2000
respecting the Prerogative of Mercy, the Petitioners note that in a
judgment of September 12, 2000 in the case of Neville Lewis v. Jamaica, the Judicial Committee of the Privy
Council clearly expressed, established and applied the fundamental
principle that public authorities which make such important decisions
as to whether or not a person sentenced to death should be executed
must observe basic rules of fairness that include a real opportunity
for a condemned person to make representations to the mercy committee
and to know what material and recommendations were being considered in
the making of the decision.
The Petitioners further submit that whether or not the Jamaican
Privy Council has already met to consider the exercise of the
Prerogative of Mercy does not affect the substance of Mr. Aitken’s
complaint, as until September 12, 2000 the domestic law in Jamaica did
not provide Mr. Aitken with requisite rights in respect of the
potential application of mercy in his case.
(c) Article 5 of the Convention -
Conditions of Detention and Method of Execution in Jamaica
Conditions of Detention
The Petitioners allege that the conditions in which Mr. Aitken
has been detained by the State constitute a violation of his rights
under Article 5 of the Convention to be free from cruel, inhuman or
degrading punishment or treatment.
In their submissions, the Petitioners provide information as to
the general conditions of detention facilities in Jamaica, as well as
information regarding the particular conditions of detention
experienced by Mr. Aitken.
With respect to the conditions of detention facilities in
Jamaica generally, the Petitioners refer to reports prepared by
various governmental and non-governmental organizations respecting the
State's prison conditions. These
include Americas Watch: Prison
Conditions in Jamaica (1990); Jamaica Prison Ombudsman: Prison and Lock Ups (1983); Americas Watch: Death Penalty, Prison Conditions and Prison Violence (1993); Jamaica
Council for Human Rights: A
Report on the Role of the Parliamentary Ombudsman in Jamaica
(Summer 1994); and Amnesty International:
Proposal for an Inquiry into Death and Ill-treatment of Prisoners in
St. Catherine's District Prison (1993).
These reports provide information regarding the physical
conditions of the prisons and prisoners, the treatment of prisoners by
prison staff, and the status of medical, educational and work
facilities and programs in various prisons and lock up facilities in
According to the Petitioners, these reports indicate that
detention facilities in Jamaica are poor and have not been remedied by
the Jamaican government. They
cite, for example, Amnesty International’s 1993 conclusion that “the
general conditions prevailing in St. Catherine’s District Prison
constitute cruel, inhuman and degrading treatment. The conditions and facilities in prisons fall far short of
the standards set out in the United Nations Standard Minimum Rules for
the Treatment of Prisons, particularly those sections relating to the
provision of adequate cell space, bedding, lighting, sanitary
installations, and medical services.”
The Petitioners also indicate that all death row inmates in
Jamaica are situated on death row in St. Catherine’s District
Prison, which was built in the 18th Century and was
formerly a slave market. The
Petitioners submit that generally speaking, death row inmates are
deprived of a mattress or other bedding, that inmates’ cells suffer
from inadequate sanitation, ventilation and light, and that prisoners
experience poor standards of personal hygiene.
In addition, the Petitioners claim that inadequate medical and
psychiatric care is available to prisoners, and that inmates condemned
to death spend long periods in their cells, have no work or education
facilities, and are often the subject of ill-treatment by prison
guards. The Petitioners
further claim that any complaint mechanisms that exist in the
facilities do not adequately address prisoners’ grievances.
With respect to the conditions of detention alleged to have
been experienced by Mr. Aitken personally, the Petitioners claim,
based in part on an affidavit sworn by Mr. Aitken on March 17, 2000,
that his post-conviction detention on death row has subjected him to
cruel, inhuman or degrading punishment or treatment contrary to
Article 5 of the Convention.
In particular, the Petitioners claim that Mr. Aitken is locked
in his cell for 23 ½ hours per day and is only allowed out of his
cell for approximately 30 minutes per day when he is expected to empty
his slop pail, bathe and take exercise.
They also indicate that Mr. Aitken is deprived of a mattress or
other bedding and sleeps on a concrete bunk. According to the
Petitioners, Mr. Aitken is deprived of adequate sanitation and has to
use a bucket as a toilet, which he is only allowed to empty once per
day. In addition, Mr.
Aitken’s cell is said to have inadequate ventilation and is
therefore hot and uncomfortable, and the food provided to Mr. Aitken
is “deplorable and inadequate.” Moreover, the Petitioners claim
that despite numerous requests by Mr. Aitken, he has seen neither a
doctor nor a dentist since his conviction on October 31, 1997.
In light of these conditions of detention, the Petitioners
contend that the State is responsible for violations of Mr. Aitken’s
rights under Article 5 of the Convention. The Petitioners rely in this
connection upon several provisions of the United Nations Standard
Minimum Rules for the Treatment of Prisoners.
These include Article 10, which states that all accommodation
provided for the use of prisoners shall "meet all requirements of
health, due regard being paid to climatic conditions and particularly
cubic content of air, minimum floor space, lighting, heating and
The Petitioners also cite several comments and decisions
of the UN Human Rights Committee and the European Court of Human
Rights regarding humane treatment in the context of prison conditions.
These include the UN Human Rights Committee’s General Comment
on Article 10(1) of the International Covenant on Civil and Political
Rights, which states in part that the “humane treatment and respect
for the dignity of all persons deprived of their liberty is a basic
standard of universal application which cannot depend entirely on
material resources.” The Petitioners refer additionally to the Greek
in which the European Court of Human Rights found that
prison conditions may amount to inhuman treatment, where those
conditions involve overcrowding, inadequate toilet and sleeping
arrangements, inadequate food and recreation, and incommunicado
Based upon these submissions, the Petitioners argue that Mr.
Aitken’s treatment has violated this right under Article 5 of the
Convention to be free from cruel, inhuman or degrading treatment or
In their January 19, 2001 response to the State’s December
15, 2000 observations in this matter, the Petitioners contend that the
affidavits relied upon by the State are the same affidavits relied
upon by Jamaica in the case of Neville
Lewis before the domestic courts in Jamaica. The Petitioners argue that the affidavits do not specifically
respond to Mr. Aitken’s complaint as set out in his affidavit of
March 17, 2000. The
Petitioners also claim that in the Neville
Lewis Case before the Judicial Committee of the Privy Council, the
very same affidavit were not accepted by the Privy Council to refute
the Appellants’ allegations that the treatment in prison and the
prison conditions in which the Appellants were detained amounted to
inhumane or degrading treatment.
Method of Execution in Jamaica
The Petitioners argue that the execution of the death sentence
by hanging, as provided for under Jamaican law, constitutes cruel and
inhuman treatment or punishment per
se in violation of Articles 5(1) and 5(2) of the Convention.
In this regard, the Petitioners submit that whereas Article 4
of the Convention allows for the imposition of the death penalty under
certain limited circumstances, any method of execution provided by law
must be designed in such a way as to avoid conflict with Article 5 of
support of their arguments, the Petitioners provided detailed accounts
of the physical, physiological and psychological effects of hanging
upon a condemned prisoner, as described in the affidavits of Dr.
Harold Hillman dated April 28, 1999, Dr. Albert Hunt dated July 1,
1997 and Dr. Francis Smith dated March 24, 1996.
Based upon this evidence, the Petitioners allege that the
execution of Mr. Aitken’s death sentence by hanging would violate
Article 5(2) of the Convention because:
death by hanging constitutes inhuman and degrading treatment
because it does not result in instantaneous death, and there is an
impermissibly high risk that Mr. Aitken will suffer an unnecessarily
painful and tortuous death by strangulation;
the pressure in the brain will increase and this is normally
accompanied by severe headaches. The increased pressure can be seen as engorgement of the
face, eyes and tongue;
the obstruction of the windpipe raises the carbon dioxide
concentration in the blood which makes the person want to inspire, but
he cannot do so, due to the obstruction of the windpipe itself.
This causes great distress, as occurs during strangulation.
However, the person cannot cry out nor can he react normally to
distress and pain by moving his limbs violently as they are tied;
the skin beneath the rope in the neck is stretched by the fall
and this will be painful; and
the humiliating effects of hanging on the body clearly amount
to degrading treatment and punishment.
the Petitioners’ submission, the execution of Mr. Aitken by hanging
in these circumstances would not meet the test of “least possible
physical and mental suffering,” and would therefore constitute cruel
and inhuman treatment in violation of Article 5 of the Convention.
(d) Article 8 of the Convention - Right to
Adequate Time and Means for Preparing a Defense
47. The Petitioners contend that the State has violated Mr. Aitken’s rights under Article 8 of the Convention on the ground that he was not provided with adequate time and means for the preparation of his defense, as a consequence of the conduct of the attorney afforded to Mr. Aitken by the State.
48. The Petitioners allege in particular that according to Mr. Aitken it was very difficult for him to give instructions to his lawyer because the only conferences that he had with his attorney were at Court during the conduct of his trial. The Petitioners also claim they wrote to Mr. Aitken’s trial attorney on numerous occasions requesting information about the preparation of Mr. Aitken’s defense, but that as of the date of their petition the attorney had not replied. Further, according to Mr. Aitken he was assaulted on his arrest and he would have wanted his attorney to investigate those beatings as well as his alibi defense. 
49. The Petitioners cite several authorities in support of their proposition that the State has a particular obligation in a death penalty case to take measures to ensure that court-appointed counsel is effective, and that capital cases should not proceed unless the accused is assisted by competent and effective counsel. The Petitioners allege that in the present case such assistance was not afforded to Mr. Aitken, resulting in violations of his rights under Articles 8(2)(c) and (e) and 4(2) of the Convention.
(e) Articles 24 and 25 of the Convention
– Denial of Access to Constitutional Motions
The Petitioners argue that the State does not provide legal aid
for Constitutional Motions, and that this results in a denial of
access to court and a denial of effective remedies in violation of
Articles 24 and 25 of the Convention.
More particularly, the Petitioners recognize that Article 25(1)
of the Constitution of Jamaica provides individuals with the legal
right to bring a Constitutional Motion before the Supreme Court.
They argue, however, that there is no practical
opportunity for the victims to pursue a Constitutional Motion because
the proceedings are extremely expensive and beyond Mr. Aitken’s
financial means, and because no legal aid is available for these
the Petitioners submit that the State's failure to provide legal aid
for Constitutional Motions denies the victims access to the courts and
hence to an effective remedy for violations of the Constitution or of
the American Convention. The
Petitioners also submit in this regard that the principle of effective
access to courts is even more indispensable in capital cases, where a
defendant's life and liberty are at stake.
52. In support of their arguments, the Petitioners cite decisions of other international human rights tribunals, such as the decision of the European Court of Human Rights in Airey v. Ireland  and the U.N. Human Rights Committee in Curry v. Jamaica,  for the proposition that individuals must be guaranteed effective access to courts in fact as well as in law, which may require legal assistance in the provision of legal aid. The Petitioners claim that the unavailability of legal aid in Jamaica in fact deprives the victims of effective access to the courts, and that the State is responsible for violations of Articles 24 and 25 of the Convention.
During its 109th special session in December 2000, the
Commission approved the Rules of Procedure of the Inter-American
Commission on Human Rights, which replaced the Commission’s prior
Regulations of April 8, 1980. Pursuant to Article 78 of the
Commission’s Rules of Procedure, the Rules entered into force on
May 1, 2001.
In its judgment
in the Neville Lewis case,
the Judicial Committee of the Privy Council found, contrary to its
previous jurisprudence, that an individual's petition for mercy
under the Jamaican Constitution is open to judicial review, and that
the procedure for mercy must be exercised by procedures that are
fair and proper. Neville Lewis et al. v. The Attorney General of Jamaica and The
Superintendent of St. Catherine District Prison, Privy Council
Appeals Nos. 60 of 1999, 65 of 1999, 69 of 1999 and 10 of 2000 (12
In support of
their submissions, the Petitioners cite the decisions of the U.N.
Human Rights Committee in Little v. Jamaica, Communication Nº
283/1988, U.N. Doc. Nº CCPR/C/43/D/283/1988, Reid v. Jamaica,
Communication Nº 725/1987, U.N. Doc. Nº CCPR/PR/C/39/D/725/1987;
Collins v. Jamaica, Communication Nº 356/1989, U.N. Doc. Nº
CCPR/C/47/D/356/1989, Smith v. Jamaica, Communication Nº 282/1988,
U.N. Doc. CCPR/C/47/D/282/1988, Campbell v. Jamaica, Communication
Nº 248/1987, U.N. Doc. Nº CCPR/C/44/D/248/1987, and Kelly v.
Jamaica, Communication Nº 253/1987, U.N. Doc. Nº
North Carolina, 428 U.S. 280 (1976) (U.S. Supreme Court).
Bachan Singh V.
State of Punjab, (1980) S.C.C. 475 (Supreme Court of India).
Sections 90 and
91 of the Constitution of Jamaica provide as follows:
The Governor General may, in Her Majesty's name and on Her Majesty's
(a) grant to any person convicted of any offence against the law of Jamaica a pardon, either free or subject to lawful conditions;
(b) grant to any person a respite, either indefinite or for a specified period, from the execution of any punishment imposed on that person for such an offence;
substitute a less severe form of punishment for that imposed on any
person for such an offence; or
remit the whole or part of any punishment imposed on any person for
such an offence or any penalty or forfeiture otherwise due to the
Crown on account of such an offence.
(2) In the exercise of the powers conferred on him by this section the Governor-General shall act on the recommendation of the Privy Council.
Where any person has been sentenced to death for an offence against
the law of Jamaica, the Governor-General shall cause a written
report of the case from the trial judge, together with such other
information derived from the record of the case or elsewhere as the
Governor-General may require, to be forwarded to the Privy Council
so that the Privy Council may advise him in accordance with the
provisions of section 90 of this Constitution.
The power of requiring information conferred on the Governor-General
by subsection (1) of this section shall be exercised by him on the
recommendation of the Privy Council or, in any case in which in his
judgement the matter is too urgent to admit of such recommendation
being obtained by the time within which it may be necessary for him
to act, in his discretion.
Minister of Public Safety (Nº 2)  2 W.L.R. 281.
de Freitas v. Benny  A.C.
additionally allege violations of Articles 11(a), 11(b), 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 of the United
Nations Standard Minimum Rule for the Treatment of Prisoners.
H.R., Greek Case 12 Y.B. 1 (1969).
cite in this regard the decision of the UN Human Rights Committee in
the case Ng v. Canada, Communication Nº 469/1991, in which the
Committee stated that when imposing capital punishment in accordance
with Article 7 of the International Covenant on Civil and Political
Rights, the execution of the sentence “must be carried out in such
a way as to cause the least possible physical and mental suffering.”
Denton Aitken dated March 17, 2000, paras. 6, 7.
the Petitioners' submissions, Article 25(1) of the Jamaican
Constitution provides that "if any person alleges that any of
the provisions of Section 14-24 (inclusive) of the Constitution has
been, is being, or is likely to be contravened in relation to him,
then, without prejudice to any other action in respect of the same
matter which is lawfully available, that person may apply to the
Supreme Court for redress."
Ireland  2 E.H.R.R. 305.
Jamaica, Communication Nº 377/1989, at p. 5, paras. 13.3, 13.4.