B. Position of the State
Position of the State on Admissibility
53. As of the date of this report, the Commission had not received any observations from the State on the admissibility of Mr. Aitken’s complaint. As a consequence, the State may properly be considered to have implicitly or tacitly waived its right to object to the admissibility of the Petitioners’ claims.
Position of the State on the Merits
(a) Articles 4 and 5 of the Convention -
Mandatory Nature of the Death Penalty
The State denies that the imposition of the death penalty in
Jamaica is not reserved for the most serious offenses as provided for
under Article 4(2) of the Convention. Rather, the State argues that a
conviction for murder is one of the most serious crimes and is precisely
the reason why it attracts one of the most serious penalties.
The State also contends that the death penalty for murder has
long been recognized in countries that imposed that penalty both before
the Convention and after, and represents a “classic” example of the
most serious crimes under Article 4(2) of the Convention.
The State therefore characterizes the Petitioners’ argument in
this regard as, at best, a “specious” attempt to challenge the
validity of capital punishment in Jamaica.
The State emphasizes that it is the elements of the offense that
attract the penalty and clearly refers to the circumstances in which the
offender committed the offense. According
to the State, in this context the characterization of murder as a
serious crime is even more clearly demonstrated and its individualized
The State also argues that the reformed system of capital
punishment contained in Jamaica’s Offenses Against the Person Act 1992
is sufficient to comply with Article 5 of the Convention, as it is
restricted to the most serious crimes in conformity with Article 4(2) of
the Convention and nothing in Article 5 of the Convention can be
construed so as to derogate from the express provisions of Article 4.
In this connection, the State contends that a legislature is
vested with the authority to assess the situations which have arisen or
which may arise and must form a judgment as to what laws are necessary
and desirable for the purpose of maintaining peace, order and good
government. The State
therefore argues that it cannot be for the courts or the Commission
without possessing evidence on which a decision of the legislature has
been based to overrule and nullify the decision.
In this respect and in response to the Commission’s previous
findings on this issue, the State confirms that the Constitution has
vested in the Jamaican Privy Council the power to determine whether the
death penalty will be carried out in an individual case.
In addition, the individual circumstances are among the factors
taken into account in determining whether the sentence should be
the State submits that there is no basis for the assertion that because
of the mandatory nature of the death penalty in Jamaica, the alleged
victim could be deprived of consideration based upon this personal
circumstances and the circumstances of his particular case.
In conclusion, the State submits that once an offender has been
given an opportunity to prove his or her innocence and fails, then the
person should face the full circumstances of the law.
Article 4(6) of the Convention – Prerogative of Mercy
In relation to the right to seek amnesty, pardon or commutation
of sentence under Article 4(6) of the Convention, the State denies that
the right to apply for mercy in Jamaica under Articles 90 and 91 of the
Jamaican Constitution is illusory or ineffective. Rather, the State
argues that the Constitution prescribes principles that guide the
Governor General in the exercise of discretion and refers in this regard
to section 90(1)(c) and 91(1) and (2) of the Constitution of Jamaica.
In particular, the State contends that under the provisions
of the Jamaican Constitution, any person sentenced to death for an
offense against the law of Jamaica automatically has his or her case
heard by the Jamaican Privy Council to determine whether the Prerogative
of Mercy should be exercised in his or her favor, accordingly dispensing
with the need for a condemned prisoner to “apply” for mercy.
The State also argues that during the process of determining
whether to exercise the Prerogative of Mercy, the Jamaican Privy Council
has before it 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.
Further, the sentence of death is stayed during the process.
Finally, the State argues that there is no factual basis upon
which the alleged victim can legitimately complain since the Jamaican
Privy Council has not yet considered the exercise of the Prerogative of
Mercy and has not denied the alleged victim any rights contrary to
recommendations made by international bodies such as the Commission.
The State therefore contends that the issue at this stage is “purely
academic, hypothetical and premature and should be dismissed.”
(c) Article 5 of the Convention -
Conditions of Detention and Method of Execution in Jamaica
The State raises several arguments in relation to the Petitioners’
allegations regarding Mr. Aitken’s conditions of detention.
First, the State contends that notwithstanding the contents of
the reports from international and domestic monitoring bodies, a
generalized position cannot be adopted each time a complaint is lodged
by an inmate. Rather,
complaints must be dealt with individually and each case must be
considered on its individual merits.
The State indicated in its observations of October 10, 2000 that
it would have Mr. Aitken’s conditions of detention investigated and
the results submitted to the Commission. In its subsequent observations,
the State referred to and relied upon three affidavits, one dated
November 11, 1998 by Zepheniah Page, a warder employed at St. Catherine
District Prison, a second dated November 11, 1998 by Melbourne Jones, a
Superintendent employed at the same prison, and a third dated November
26, 1998 by Dr. Raymoth Notice, a medical doctor also employed at the
prison. The contents of the
affidavits indicate that they were prepared for use in litigation before
the Supreme Court of Jamaica in the matter of Neville
Lewis v. The Attorney General of Jamaica and the Superintendent of the
St. Catherine District Prison.
The affidavits provide information concerning the conditions of
detention of the applicant in that case, Neville Lewis, on death row at
St. Catherine District Prison in Jamaica.
Based upon these affidavits, the State contends that the
conditions of detention of death row prisoners at St. Catherine District
Prison include the following:
On admission to the prison each prisoner convicted of capital
murder and sentenced to death is given a slop pail, a jug for holding
water, a drinking cup and a blanket and then taken to a cell block where
condemned prisoners are kept.
Each prisoner is kept in a separate cell.
Each cell is approximately 9 feet long, 6 feet wide and 10 feet
high. The walls and floor
of the cells are made of concrete. The floor is very smooth.
The walls are painted but the inmates paste pictures from
magazines and newspaper on the walls.
Inside each cell is a covered mattress made from foam like any
mattress, which can be bought in any department store.
In the cell there is a concrete elevation on which the mattress
Each prisoner on death row is issued monthly with toilet paper,
bath soap and toothpaste. On request, each prisoner is entitled to a bible, other
reading material and stationary.
The cells are in rows and they face each other and are separated
by a corridor approximately 13 feet wide.
There are bright florescent lamps in the ceiling along the
corridor. These lights are
never turned off. Each cell
has a socket above the door on the outside of the cells.
Some inmates place wires inside the sockets to light bulbs inside
their cells and others attach the wires to hot plates, which they use
There are open spaces at the two sides of the building where the
inmates are housed. The
space on one side is about 9 feet x 120 feet and on the other side is
about 36 feet x 110 feet. At
the front there is an open space 27 feet x 45 feet. The ventilation in the cells is very good as air flows freely
through the doors of the cells.
Each prisoner cleans his cell daily under the supervision of a
warder. The prisoners are
supplied with disinfectant. Cleaning
the cells entails wiping the floor clean with a sponge or a cloth.
The prisoners sweep the corridor, which runs along the cells,
The slop pail, which is issued to the prisoners, has a cover.
If a prisoner uses the pail during the day, he requests
permission from a warder on duty and is allowed to empty the pail in a
general area provided for that purpose.
A pipe with running water is at the place where pails are emptied
and each prisoner is given disinfectant to wash his bucket when he
empties it. If a prisoner
uses the pail in the night, he is allowed to empty it
the following morning when the warder arrives on duty.
Condemned men are allowed to keep radios in their cells, provided
the radio is operated with batteries.
The light reflected in the cells is adequate for prisoners to
read in day and night.
There is a daily routine for each prisoner on the condemned
cells. At approximately
8:30 am the warder unlocks the cell door and allows the prisoner to
empty his slop pail. He is
allowed to wash his face and brush his teeth.
He is then returned to his cell and he is given breakfast.
After breakfast, he is allowed to exercise in the open area at
the side of the building and take his bath.
He may also, if he wishes, be allowed to see the doctor, attend
at the administrative office, his attorney-at-law, religious adviser or
any other visitor. The time
spent varies depending on the circumstances.
He is then returned to his cell, where he is given lunch.
In the afternoon the cell is unlocked and the process is
repeated, (i.e. empty slop pail, exercise, etc.).
He is then returned to his cell and given another meal.
The cell is then locked until the following morning.
The inmates are given special care and attention.
The warders develop special relationships with them and there is
no rigid enforcement of any rules regarding the time spent in activities
outside their cells.
They are allowed to play football in the open space on a regular
basis, although there is an unwritten rule that no more than two
prisoners should be unlocked at any one time.
There is a senior officer at the prison who communicates with the
prisoners on a daily basis to take note of any complaints which they may
have and to assess the general conditions of the cells and the working
areas. Reports are
submitted to the Superintendent who has responsibility for the prison
and for the welfare of the prisoners.
This process is carried out not only to ensure that prisoners are
taken care of but also to ensure that warders are performing their
All complaints made by prisoners are dealt with promptly.
If a prisoner is abused he sometimes refuses to leave his cell
and demands that he see the Superintendent who has responsibility for
the prison. In any such
circumstance, the Superintendent goes to see the prisoner, takes his
complaint, and takes appropriate actions against the offender, generally
to the satisfaction of the complaining prisoner.
the St. Catherine District Prison houses a Medical Center that is
staffed by two registered practitioners, a general practitioner and a
psychiatrist. There is also
a registered dentist. A
matron who is also a registered nurse, a qualified social worker and
several medical orderlies assist these doctors.
The general practitioner attends the Medical Center daily and
when he is not on duty, he is on call.
The dentist attends at the medical Center three days every week.
when a prisoner makes a complaint of a medical nature,
arrangements are made with the medical orderly for that person to be
taken to see the doctor at the very earliest opportunity.
If the compliant is of a serious nature and a doctor is not on
duty at the time or cannot be located, the prisoner is immediately
dispatched to the Spanish Town General Hospital, which is located in the
vicinity of the prison.
Based upon these submissions, the State denies that conditions at
St. Catherine District Prison are poor, that there are no adequate
complaint mechanisms, or that there is no medical or other care provided
In its observations of December 15, 2000, the State emphasized
that the general reports upon which the Petitioners rely were conducted
between 1983 and 1993, while in the view of the State the affidavits
presented on its behalf were prepared in 1998 and reflect a more
accurate description of the conditions at St. Catherine District Prison.
The State also indicated that it conducted its investigations
into the conditions that Mr. Aitken has complained of and that the “reports
received lead us to conclude that the conditions of the prison as they
are described in the Ministry’s last communication apply equally to
Further, the State argues that even if the Petitioners’
allegations are proven to be true, they could not by themselves result
in the commutation of Mr. Aitken’s death sentence.
The State relies in this regard on the decision of the Judicial
Committee of the Privy Council in the Thomas
and Hilaire Case in which the applicants alleged that they had been
detained in cramped and foul smelling cells and deprived of exercise or
access to the open air for long periods of time.
According to the State, the Judicial Committee of the Privy
Council held in this case that even if the conditions of detention
alleged by those applicants constituted cruel and unusual treatment or
punishment, commutation of sentence would not be the appropriate remedy.
Also on the issue of prison conditions, the State relies upon the
decision of the Jamaican Court of Appeal in the Patrick
Taylor et al. Case in which the applicant is said to have alleged
the following conditions of detention: when he was first arrested he was
assaulted; when he was re-arrested he remained in handcuffs for three
days; he was beaten while in lock up; while awaiting trial he shared a
cell with 25 other men; there was no light in his cell and his exercise
each day was limited to 42 minutes; although he was supplied with soap
and toilet tissue, neither toothbrush nor toothpaste was provided for
use; he was given food and drink in plastic bags; and the food consisted
of very small rations and was poorly cooked.
to the State, the Jamaican Court of Appeal held that Mr. Taylor's
conditions did not amount to torture, or to inhuman or degrading
punishment or other treatment and therefore that the prison conditions
as alleged did not present any matter for argument to secure a
commutation of death sentence.
State similarly relies upon the views of the UN Human Rights Committee
in the case F. Deidrick v. Jamaica,
in which the Committee is said to have determined that the
conditions of detention alleged by the complainant did not raise an
issue under Article 7 or 10(1) of the International Covenant on Civil
and Political Rights and were therefore inadmissible.
According to the State, the conditions of detention alleged by
the applicant in that case included the fact that he was held on death
row for 8 years, confined to his cell for 22 hours per day, spent most
of his waking hours isolated from other people with nothing whatsoever
to keep him occupied, and was forced to spend much of his time in
enforced darkness. As some
of Mr. Aitken’s allegation as to his conditions of detention are
similar to those in the Deidrick
Case, the State denies that the Petitioners’ claims constitute a
breach of Article 5 of the Convention or of the UN Minimum Standard
Rules for the Treatment of Prisoners.
With respect to the Petitioners' contentions regarding the method
of execution in Jamaica, the State argues that Article 5 of the
Convention must be read subject to Article 4, which provides for the
imposition of the death penalty. In
light of the presence of these two provisions, the State contends that
the Convention by providing in one article for the imposition of the
death penalty cannot at the same time condemn its implementation by
reference to another provision.
The State also argues that the Petitioners have failed to
identify an acceptable form of execution that would not be considered to
conflict with Article 5 of the Convention.
On this basis, the State denies that the carrying out of the
death penalty by hanging conflicts or breaches the provisions of Article
5 of the Convention.
Articles 8 – Inadequate Legal Representation
In respect of the Petitioners’ allegations regarding the
adequacy of Mr. Aitken’s legal representation during his trial, the
State denies that there has been a breach of Article 8(2)(e) of the
Convention based upon the quality of Mr. Aitken’s legal
representation. In making
this argument, the State relies on the jurisprudence of the UN Human
Rights Committee in the case of D.
Taylor v. Jamaica, in which, according to the State the Committee
held that a state cannot be held responsible for any alleged
deficiencies in the defense of the accused or alleged errors committed
by the defense lawyer, unless it was manifest to the trial judge that
the lawyer’s behavior was not compatible with the interests of
Articles 24 and 25 – Denial of Access to Court
The State argues that Article 24 and 25 of the Convention dealing
with the right to equal protection and the right to judicial protection
do not place an obligation on State Parties to provide legal aid for
Constitutional Motions. Rather,
the State argues that Article 8(2)(e) of the Convention only places an
obligation on State Parties to provide legal aid for criminal
proceedings, and as a Constitutional Motion is not a criminal
proceeding, the State denies that there has been a breach of the
The State also observes that by virtue of section 3 of the Poor
Prisoners’ Defense Act, a Resident Magistrate or a Judge of the
Supreme Court is obliged to grant an accused who is financially unable
to retain counsel a legal aid certificate which entitles him to free
legal aid in the preparation and conduct of his defense.
Competence of the Commission
The State deposited its instrument of accession to the American
Convention on August 7, 1978.
The Petitioners allege that the State has violated Articles
4, 5, 8, 24 and 25 of the American Convention, in respect of acts or
omissions that transpired after the State's accession to the Convention.
Mr. Aitken is a natural person, and the Petitioners were
authorized under Article 44 of the Convention to lodge a petition on his
behalf with the Commission. The
Commission therefore finds that it is competent to consider Mr. Aitken’s
As indicated in Part III.A.2, the Commission has not previously
determined the admissibility of the complaints in Mr. Aitken’s
petition. Rather, in light
of the exceptional circumstances of this matter as a death penalty case
and the fact that the parties have had numerous opportunities to present
observations on the admissibility and merits of the Petitioners’
claims, and consistent with its past practice in petitions of this
the Commission decided to consider the admissibility of the
Petitioners’ claims together with the merits.
According to Articles 46(1)(c) and 47(d) of the Convention and
Article 33 of the Commission’s Rules of Procedure, the admissibility
of a petition is subject to the requirement that the subject of the
petition is not pending in another international proceeding for
settlement and is not substantially the same as one previously studied
by the Commission or by another international organization.
The Petitioners in Mr. Aitken’s case have indicated that the
subject of their complaint has not been submitted for examination by any
other procedure of international investigation or settlement.
The State has not contested the issue of duplication.
The Commission therefore finds no bar to consideration of this
case under Articles 46 (1)(c) or 47(d) of the Convention.
Exhaustion of Domestic Remedies
46(1)(a) of the Convention and Article 31(1) of the Commission’s Rules
of Procedure specify that, in order for a case to be admitted, remedies
of the domestic legal system must have been pursued and exhausted in
accordance with generally accepted principles of international law.
of domestic remedies need not be demonstrated by a victim, however, in
the event that the State against which the complaint is lodged waives
this requirement. In this
regard, the Inter-American Court of Human Rights has held that the rule
which requires the prior exhaustion of domestic remedies is designed for
the benefit of the State, because the rule seeks to excuse the State
from having to respond to charges before an international body for acts
imputed to it before it has had an opportunity to remedy them by
internal means. According
to the Court, the requirement is thus considered a means of defense and,
as such, waivable, even tacitly. Further,
a waiver, once effected, is irrevocable.
82. Given the absence of any observations from the State on the issue of exhaustion of domestic remedies in this case, the Commission finds that the State implicitly or tacitly waived any challenge with regard to the exhaustion of remedies by Mr. Aitken in domestic proceedings. The Commission therefore does not consider the present case to be inadmissible by reason of Article 46(1)(a) of the Convention or Article 31 of its Rules of Procedure.
Timeliness of the Petition
Article 46(1)(b) of the Convention and Article 32 of the
Commission’s Rules of Procedure provide that the admission of a
petition is subject to the requirement that the petition be lodged with
the Commission in a timely manner, namely within a period of six months
from the date on which the party alleging violations of his rights was
notified of the decision that exhausted domestic remedies.
The record before the Commission indicates that the Judicial
Committee of the Privy Council dismissed Mr. Aitken’s petition for
Special Leave to Appeal on March 6, 2000 and that the Petitioners lodged
the present petition with the Commission on April 28, 2000 and therefore
within 6 months from the date of final judgment. The State has not contested the issue of timeliness.
Accordingly, the Commission finds no bar to consideration of this
case by reason of Article 46(1)(b) of the Convention or Article 32 of
its Rules of Procedure.
Article 47(b) of the Convention and Article 34(a) of the
Commission’s Rules of Procedure require a petition to be declared
inadmissible if it does not state facts that tend to establish a
violation of the rights guaranteed by the Convention or other applicable
instruments. Article 47(d)
of the Convention and Article 34(b) of the Commission’s Rules of
Procedure deem inadmissible any communication where the statements of
the petitioner or the State indicate that the petition is manifestly
groundless or out of order.
The Petitioners in the present case have alleged that the State
has violated Mr. Aitken’s rights under Articles 4, 5, 8, 24 and 25 of
the Convention. In
addition, the Petitioners have provided factual allegations, described
in Part III.A.1 of this
Report, that, in the Commission’s view, tend to establish that these
alleged violations may be well-founded.
87. The Commission therefore finds that the Petitioners have presented colorable claims of violations of Mr. Aitken’s rights under the Convention for the purposes of Articles 47(b) and 47(c) of the Convention and Articles 34(a) and (b) of the Commission’s Rules of Procedure.
Conclusions on Admissibility
In accordance with the foregoing analysis of the requirements of
Articles 46 and 47 of the Convention and Articles 31 to 34 of the
Commission’s Rules of Procedure, and without prejudging the merits of
the matter, the Commission decides to declare as admissible the claims
presented on behalf of Denton Aitken in respect of Articles 4, 5, 8, 24
and 25 of the Convention.
As detailed in Part III.A.1 of this Report, the Petitioners in
the present case have alleged the following violations of the Convention
in respect of Mr. Aitken:
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 Article 5(1) and (2) of the Convention, relating to
Mr. Aitken’s conditions of detention and the method of execution in
violations of Articles 8(2)(c),
8(2)(e) and 4(2) of the Convention, relating to the adequacy of Mr.
Aitken’s legal representation at trial;
violations of Articles 24 and
25 of the Convention relating to Mr. Aitken’s inability to pursue a
Constitutional Motion before the courts in Jamaica.
Standard of Review
In response to the various standards that the parties have
suggested should guide the Commission in determining the issues before
it, the Commission wishes to clarify that it will undertake its review
of the merits of the Petitioners' claims in accordance with the
Commission's heightened scrutiny test.
According to this standard of review, the Commission will subject
the parties' allegations to an enhanced level of scrutiny in order to
ensure that any deprivation of life effected by a State Party pursuant
to a death sentence complies strictly with the provisions of the
Convention, including in particular Articles 4, 5 and 8 of the
This heightened scrutiny test is, as the Commission has
previously recognized, consistent with the restrictive approach to the
death penalty provisions of human rights treaties taken by the
Commission and other international authorities.
The Commission also wishes to note that its application of a
heightened level of scrutiny in capital cases is not precluded by the
Commission's fourth instance formula. According to this formula, the
Commission in principle will not review the judgments issued by the
domestic courts acting within their competence and with due judicial
guarantees, unless a petitioner’s allegations entail a possible
violation of any of the rights set forth in the Convention.
As the Petitioners’ allegations entail independent
violations of Articles 4, 5, 8, 24 and 25 of the American Convention,
the fourth instance formula has no application in the present matter.
2. Articles 4, 5 and 8 of the
Convention - The Mandatory
Nature of the Death Penalty
Mr. Aitken has been Sentenced to a Mandatory Death Penalty
record in the present case indicates that Mr. Aitken was convicted of
capital murder in Jamaica and sentenced to death.
It also indicates that the death sentence was imposed pursuant to
legislation in Jamaica that prescribes the death penalty as the only
punishment available when a defendant is found guilty of capital murder.
particularly, as indicated in Part I of this Report and confirmed by the
State in its observations, Mr. Aitken was convicted of the crime of
capital murder under Jamaica's Offences
Against the Person Act, as amended by the Offences
Against the Person (Amendment) Act, 1992.
2(1)(d)(i) of this Act defines
capital murder as including the following:
2.(1) Subject to subsection (2), murder committed in the following circumstances is capital murder, that is to say-
any murder committed by a person in the course or furtherance of-
94. Section 3(1) of the Act in turn prescribes the death penalty as the mandatory punishment for any person convicted of a capital offence as defined under Section 2 the Act:
2(1) Every person who is convicted of capital murder shall be sentenced to death and upon every such conviction the court shall pronounce sentence of death, and the same may be carried into execution as heretofore has been the practice; and every person so convicted or sentenced pursuant to subsection (1A), shall, after sentence, be confined in some safe place within the prison, apart from all other prisoners.
by virtue of this section a person is sentenced to death, the form of
the sentence shall be to the effect only that he is to "suffer
death in the manner authorized by law."
95. The Act therefore prescribes death as the mandatory punishment for all individuals convicted of capital murder. Capital murder in turn includes murder committed in the course or furtherance of certain other offences, including robbery, burglary, housebreaking, and arson in relation to a dwelling house. Accordingly, once the jury found Mr. Aitken guilty of capital murder, the death penalty was the only available punishment. The Commission notes that the State has not denied the mandatory nature of Mr. Aitken’s punishment, but rather argues that the exercise of the Prerogative of Mercy is sufficient to take into account the individual circumstances of Mr. Aitken’s case.
as the Commission has determined in previous cases,
the crimes of capital murder in Jamaica can be regarded as
being 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 capital murder, the death
penalty must be imposed. Accordingly,
mitigating circumstances cannot be taken into account by a court in
sentencing an individual to death once a conviction for capital murder
has been rendered. There
is, however, an exception. Section 3(2) of the Act
specifically exempts from the death penalty female offenders who are
convicted of offenses punishable with death, but who are found by a jury
to be pregnant.
97. Therefore, the penalty for a female offender who is convicted of capital murder, but who is found by a jury to be pregnant, is a sentence of imprisonment with or without hard labor for life rather than a sentence of death.
98. As indicated in Part III.A.3.a, the Petitioners have alleged that Mr. Aitken’s sentencing to a mandatory death penalty violates one or more of Articles 4(1), 4(2), and 5(2) of the American Convention, principally because the sentencing process in Jamaica does not provide an opportunity for offenders to present mitigating factors concerning their personal circumstances or those of their offense in determining whether the death penalty is an appropriate punishment.
(b) Mr. Aitken’s Mandatory Death Sentence
under Articles 4, 5 and 8 of the Convention
In previous cases involving the application of capital punishment
under the Offenses Against the
Person Act in Jamaica, the Commission has evaluated the mandatory
nature of the death penalty under that legislation in light of Article 4
(right to life), Article 5 (right to humane treatment) and Article 8
(right to a fair trial) of the Convention and the principles underlying
those provisions. It has
also considered the mandatory death penalty in light of pertinent
authorities in other international and domestic jurisdictions, to the
extent that those authorities may inform the appropriate standards to be
applied under the American Convention. Based upon these considerations
and analysis, the Commission has reached the following conclusions.
The Commission has found that the supervisory bodies of
international human rights instruments have subjected the death penalty
provisions of their governing instruments to a rule of restrictive
interpretation, to ensure that the law strictly controls and limits the
circumstances in which a person may be deprived of his life by
authorities of the state. This
includes strict compliance with standards of due process.
In addition, the Commission has identified a general recognition
by domestic and international authorities that the death penalty is a
form of punishment that differs in substance as well as in degree in
comparison with other means 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.
The Commission has accordingly determined that the fact that the
death penalty is an exceptional form of punishment must also be
considered in interpreting Article 4 of the American Convention.
Finally, the Commission has noted and relied upon the
determination by the Inter-American Court of Human Rights in its
Advisory Opinion OC-3/83 that under the terms of Article 4 of the
Convention, “certain considerations involving the person of the
defendant, which may bar the imposition or application of the death
penalty, must be taken into account” by States Parties that have not
abolished the death penalty.
In the context of these interpretive rules and principles, the
Commission has evaluated mandatory death penalty legislation under
Articles 4, 5 and 8 of the Convention and has concluded that imposing
the death penalty through mandatory sentencing, as Jamaica has done in
respect of crime of capital murder, is not consistent with the terms of
Articles 4(1), 5(1), 5(2), 8(1) and 8(2) of the Convention and the
principles underlying those provisions.
The Commission observes in this regard that subsequent to
its determination that the mandatory death penalty was inconsistent with
the rights protected in the inter-American system, other international
and regional tribunals have reached similar conclusions.
A majority the UN Human Rights Committee, for example, has found
the implementation of a death sentenced based upon a mandatory
sentencing law to violate the right not to be arbitrarily deprived of
one’s life under Article 6(1) of the International Covenant on Civil
and Political Rights.
In addition, a majority of the Eastern Caribbean Court of
Appeal has found the mandatory death penalty in Saint Vincent and Saint
Lucia to constitute inhuman or degrading punishment or other treatment
contrary to the constitutions of those states.
104. The Commission has determined that imposing the death penalty in a manner that conforms with Articles 4, 5 and 8 of the Convention requires an effective mechanism by which a defendant may present representations and evidence to the sentencing court as to whether the death penalty is a permissible or appropriate form of punishment in the circumstances of his case. In the Commission’s view, this includes, but is not limited to, representations and evidence as to whether any of the factors incorporated in Article 4 of the Convention may prohibit the imposition of the death penalty. 
In reaching this conclusion, the Commission has identified a
principle common to those democratic jurisdictions that have retained
the death penalty, according to which the death penalty should only be
implemented through “individualized” sentencing.
mechanism, the defendant is entitled to present submissions and evidence
in respect of all potentially mitigating circumstances relating to his
or her person or offense, and the court imposing sentence is afforded
discretion to consider these factors in determining whether the death
penalty is a permissible or appropriate punishment.
Mitigating factors may relate to the gravity of the particular
offense or the degree of culpability of the particular offender, and may
include such factors as the offender’s character and record,
subjective factors that might have motivated his or her conduct, the
design and manner of execution of the particular offense, and the
possibility of reform and social readaptation of the offender.
The Commission has also previously observed that Jamaica has
already considered it appropriate to prescribe in its legislation a
mechanism by which a jury may determine whether an individual female
offender should be spared the death penalty because she is pregnant.
The Commission has therefore considered that the foundation
already exists under Jamaican law to extend this mechanism, or to
develop a comparable mechanism, to permit a jury to consider other
potentially mitigating factors pertaining to an offender in determining
whether the death penalty should be imposed in the circumstances of the
Applying these findings in the context of the case presently
before it, the Commission has confirmed that Mr. Aitken was convicted of
the offense of capital murder under Jamaica's Offences Against the Person Act.
Once an offender is found guilty of capital murder under that Act,
section 3(1) of the Act
requires a court to impose the death penalty.
With the exception of the provisions in sections 3(2) to 3(6) of
the Act governing pregnant
offenders, no provisions in the Act
have been identified that permit a judge or jury to consider the
personal circumstances of an offender or his or her offense, such as the
offender’s record or character, the subjective factors that may have
motivated his or her conduct, or the offender’s likelihood of reform
or social readaptation, in determining whether the death penalty is an
appropriate penalty for a particular offender in the circumstances of
his or her case. Upon
satisfying the elements of section 3(1) of the Act, death is the automatic penalty.
Consequently, the Commission concludes that once Mr. Aitken was
found guilty of his crimes, the law in Jamaica did not permit a hearing
by the courts as to whether the death penalty was a permissible or
appropriate penalty. There
was no opportunity for the trial judge or the jury to consider such
factors as Mr. Aitken’s character or record, the nature or gravity of
Mr. Aitken’s crime, or the subjective factors that may have motivated
his conduct, in determining whether the death penalty was an appropriate
punishment. Mr. Aitken was
likewise precluded from making representations on these matters, as a
consequence of which there is no information on the record as to
potential mitigating factors that might have been presented to the trial
court in Mr. Aitken’s circumstances.
The court sentenced Mr. Aitken based solely upon the category of
crime for which he had been found responsible.
In this context, and in light of the Commission's prior analysis
of mandatory death penalties under the Convention, the Commission
concludes that the State violated Mr. Aitken’s rights under Articles
4(1), 5(1), 5(2), and 8(1) of the Convention, in conjunction with
violations of Articles 1(1) and 2 of the Convention, by sentencing him
to a mandatory death penalty.
With respect to Article 4(1) of the Convention, the Commission
concludes that the trial court was compelled under the State’s
legislation to imposed a death sentence upon Mr. Aitken, with no
discretion to consider Mr. Aitken’s personal characteristics and the
particular circumstances of his offenses to determine whether death was
an appropriate punishment. Likewise,
Mr. Aitken was not provided with an opportunity to present
representations and evidence as to whether the death penalty was an
appropriate punishment in the circumstances of his case.
Rather, the death penalty was imposed upon Mr. Aitken
automatically and without principled distinction or rationalization as
to whether it was an appropriate form of punishment in the particular
circumstances of his case. Moreover, the propriety of the sentence
imposed was not susceptible to any effective form of judicial review,
and Mr. Aitken’s execution and death at the hands of the State are
imminent, his conviction having been upheld on appeal to the highest
court in Jamaica. The
Commission therefore concludes that the State has by this conduct
violated Mr. Aitken’s right under Article 4(1) of the Convention not
to be arbitrarily deprived of his life.
The Commission further concludes that the State, by sentencing
Mr. Aitken to a mandatory penalty of death absent consideration of his
individual circumstances, has failed to respect Mr. Aitken’s physical,
mental and moral integrity contrary to Article 5(1) of the Convention,
and has subjected him to cruel, inhuman, or degrading punishment or
treatment in violation of Article 5(2).
The State sentenced Mr. Aitken to death solely because he was
convicted of a predetermined category of crime.
Accordingly, the process to which Mr. Aitken has been subjected
would deprive him of his most fundamental right, his right to life,
without considering his personal circumstances and the particular
circumstances of his offense. Not
only does this treatment fail to recognize and respect Mr. Aitken’s
integrity as an individual human being, but in all of the circumstances
has subjected him to treatment of an inhuman or degrading nature.
Consequently, the State has violated Article 5(1) and 5(2) of the
Convention in respect of Mr. Aitken.
Finally, the Commission concludes that the State has violated
Article 8(1) of the Convention, when read in conjunction with the
requirements of Article 4 of the Convention, by subjecting him to a
mandatory death sentence. By
denying Mr. Aitken an opportunity to make representations and present
evidence to the trial judge as to whether his crime permitted or
warranted the ultimate penalty of death, under the terms of Article 4 of
the Convention or otherwise, the State also denied Mr. Aitken the right
to fully answer and defend the criminal accusations against him,
contrary to Article 8(1) of the Convention.
Also consistent with its previous findings, and contrary to the
State’s submissions, the Commission considers that the exercise of the
Prerogative of Mercy by the Jamaican Privy Council is not consistent
with, and therefore cannot serve as a substitute for, the standards
prescribed under Articles 4, 5 and 8 of the Convention that are
applicable to the imposition of mandatory death sentences.
As explained above, these requirements include legislative or
judicially-prescribed principles and standards to guide courts in
determining the propriety of death penalties in individual cases, and an
effective right of appeal or judicial review in respect of the sentence
imposed. The Prerogative of Mercy process in Jamaica, even as informed
by the minimal requirements of fairness prescribed in the Judicial
Committee of the Privy Council’s Neville
Lewis et al. judgment, does not satisfy these standards and
therefore cannot serve as an alternative for individualized sentencing
in death penalty prosecutions.
It follows from the Commission’s findings that, should the
State execute Mr. Aitken pursuant to his death sentence, this would
constitute further egregious and irreparable violations of his rights
under Articles 4 of the Convention.
Article 4(6) of the Convention and the Prerogative of Mercy in
Article 4(6) of the Convention provides that "[e]very 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."
The Petitioners in the present case have also contended that the
process for granting amnesty, pardon or commutation of sentence in
Jamaica is not consistent with Article 4(6) of the Convention because
that process does not provide for certain procedural rights which the
Petitioners assert are integral to render this rights effective.
In this connection, the authority of the Executive in Jamaica to
exercise its Prerogative of Mercy is prescribed in Sections 90 and 91 of
the State's Constitution.
In addressing this issue, the Commission first observes that in
the case of McKenzie et al. v.
Jamaica, the Commission determined that the process for exercising
the Prerogative of Mercy under Sections 90 and 91 of the Jamaican
Constitution did not guarantee the condemned prisoners in that case an
effective or adequate opportunity to participate in the mercy process,
as required under Article 4(6) of the Convention.
More particularly, the Commission interpreted the right to apply
for amnesty, pardon or commutation of sentence under Article 4(6), when
read together with the State's obligations under Article 1(1) of the
Convention, as encompassing certain minimum procedural guarantees for
condemned prisoners, in order for the right to be effectively respected
and enjoyed. These
protections were held to include the right on the part of condemned
prisoners to submit a request for amnesty, pardon or commutation of
sentence, to be informed of when the competent authority will consider
the offender's case, to make representations, in person or by counsel,
to the competent authority, and to receive a decision from that
authority within a reasonable period of time prior to his or her
It was also held to entail the right not to have capital
punishment imposed while such a petition is pending decision by the
In making this determination in the McKenzie
et al. Case, the information before the Commission indicated that
neither the legislation nor the courts in Jamaica guaranteed the
prisoners in that matter any procedural protection in relation to the
exercise of the Prerogative of Mercy. Rather, the petitioners and the State in that case indicated
that according to domestic jurisprudence at that time, the exercise of
the power of pardon in Jamaica involved an act of mercy that was not the
subject of legal rights and therefore is not subject to judicial review,
and cited in support the decision of the Judicial Committee of the Privy
Council in the Reckley Case,
The Petitioners in the present case confirmed that subsequent to
the Commission’s decision in the McKenzie et al. Case, the Judicial Committee of the Privy Council
issued a judgment on September 12, 2000 in the case Neville Lewis et al. v. The Attorney General of Jamaica, in which it
found that an individual's petition for mercy under the Jamaican
Constitution is open to judicial review.
The Judicial Committee of the Privy Council also found that
the procedure for mercy must be exercised by procedures that are fair
and proper, which require, for example, that a condemned individual be
given sufficient notice of the date on which the Jamaican Privy Council
will consider his or her case, to be afforded an opportunity to make
representations in support of his or her case, and to receive copies of
the documents that will be considered by the Jamaican Privy Council in
making its decision.
Notwithstanding the determination in the Neville
Lewis Case, however, there is no information in the present case
indicating that the State has extended the legal requirements
articulated in that decision to Mr. Aitken.
Rather, the Petitioners have contended that until the issuance of
the Neville Lewis decision,
the domestic law of Jamaica did not provide Mr. Aitken with the rights
prescribed in that case and therefore that the substance of his case is
not affected by whether or not the Jamaican Privy Council already met to
consider the exercise of the Prerogative of Mercy in his case.
The State has not provided the Commission with any additional
information regarding whether or in what manner the Prerogative of Mercy
might be considered in the circumstances of Mr. Aitken‘s case, in
light of the Neville Lewis
Case or otherwise. Accordingly,
based upon the information available, the Commission finds that the
procedure available to Mr. Aitken to seek amnesty, pardon or commutation
of sentence has not guaranteed him an effective or adequate opportunity
to participate in the mercy process.
The Commission therefore concludes that the State has violated
Mr. Aitken’s rights under Article 4(6) of the Convention, in
conjunction with violations of Articles 1(1) and 2 of the Convention, by
denying him an effective right to apply for amnesty, pardon or
commutation of sentence.
4. Articles 4 and 5 of the
Convention – Conditions of Detention/Method of Execution
The Petitioners have alleged that the conditions in which Mr.
Aitken has been detained by the State constitute a violation of his
rights under Article 5(1) of the Convention to have his physical, mental
and moral integrity respected, as well as his right under Article 5(2)
of the Convention not to be subjected to cruel, unusual or degrading
punishment or treatment.
As described in Part III.A.3.c of this Report, the Petitioners
have made numerous allegations respecting Mr. Aitken’s conditions of
detention on death row, based in part upon an affidavit sworn by Mr.
Aitken. They claim that at
the time of his arrest he was beaten by police officers. They state further that since his conviction in October 1997,
Mr. Aitken has been held on death row in St. Catherine District Prison
where he 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 must 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.
The Petitioners claim further that their allegations are
corroborated by more general sources of information concerning prison
conditions in Jamaica. These
include an April 1993 report prepared by Americas Watch in respect of
the death penalty, prison conditions and prison violence in Jamaica, and
a December 1993 report by Amnesty International proposing an inquiry
into death and ill-treatment of prisoners in St. Catherine's District
The State has contended that notwithstanding the content of these
reports, a generalized position should not be adopted every time
complaint is lodged with the Commission, but rather each complaint must
be considered individually.
Moreover, the State has provided a significantly different
version of conditions of detention on death row in St. Catherine's
District Prison, by reference to affidavits sworn in November 1998
respecting the conditions of detention of another death row inmate,
Neville Lewis. Based upon
these affidavits, the State disputes Mr. Aitken’s characterization of
his conditions of detention. The
State contends, for example, that death row inmates are provided with
foam mattresses, that they are permitted to place light bulbs inside of
their cells, that the ventilation in the cells is very good, and that
the prisoners clean their cells every day under the supervision of a
The State also contends that a senior officer at the prison is
charged with communicating with prisoners on a daily basis to take note
of any complaints, that complaints made by prisoners are dealt with
promptly, and that on some occasions the Superintendent will hear a
prisoner's complaint and take appropriate actions to remedy it.
Concerning medical conditions, the State contends that St. Catherine
District Prison houses a medical center that is staffed by two
registered medical practitioners, a general practitioner and a
psychiatrist, and that the general practitioner attends at the medical
center daily and when he is not on duty he is on call.
Based upon the record before it, the Commission is faced with
contradictory versions of Mr. Aitken’s conditions of detention.
The Commission must therefore determine which characterization of
Mr. Aitken’s detention conditions is more reliable and therefore
should be accepted as accurate. The
Commission observes in this regard that the Petitioners have provided
the Commission with specific details concerning Mr. Aitken’s personal
situation in detention following his conviction, and have supported
those details through evidence from Mr. Aitken.
In response the State has submitted general affidavit evidence
that does not specifically address Mr. Aitken’s situation, but rather
provides details concerning the general and specific circumstances of
another death row inmate, Neville Lewis.
While it appears that Mr. Aitken is detained in the same facility
as Mr. Lewis, the Commission should, as the State itself has pointed
out, avoid taking a generalized approach when it comes to the issue of
prison conditions in the context of individual cases.
Rather, the Commission should endeavor to determine each
complaint on its individual circumstances.
In the present case, the State has not provided any evidence
specifically rebutting or otherwise addressing Mr. Aitken’s treatment
during his pre-trial or post-conviction detention.
Rather, the State has provided information concerning the general
and specific detention conditions of another inmate, without specific
evidence relating to the alleged victim’s situation.
Weighing this information on the record, and in the absence of
contradictory evidence from the State relating specifically to Mr.
Aitken’s treatment, the Commission accepts as established the
Petitioners' allegations with respect to Mr. Aitken’s post-conviction
conditions of detention. According
to Mr. Aitken, since his conviction in October 1997, his conditions have
included the following:
he has been locked in cell on death row at St. Catherine District
Prison for 23 ½ hours per day;
he has been deprived of a mattress or other bedding and sleeps on
a concrete bunk;
(c) he has been deprived of adequate hygiene and must use a bucket for sanitation which he is only entitled to empty once a day;
his cell has inadequate ventilation and is therefore hot and
his cell has no electric light;
despite numerous requests, he has not had access to a doctor or
dentist since his conviction in October 1997;
he is provided with inadequate food;
he does not have access to an adequate mechanism for dealing with
Mr. Aitken’s characterization of his conditions of detention is
corroborated by more general sources of information provided by the
Petitioners concerning prison conditions in Jamaica.
These include an April 1993 report prepared by Americas Watch in
respect of the death penalty, prison conditions and prison violence in
Jamaica, and a December 1993 report by Amnesty International proposing
an inquiry into death and ill-treatment of prisoners in St. Catherine's
District Prison. The
reports provide information regarding such matters as the ill-treatment
of prisoners by warders and the absence of effective complaint
mechanisms concerning conditions and treatment in detention facilities
in Jamaica. In the 1993 Americas Watch Report, for example, the
following observations are made in respect of conditions of detention in
reports by Americas Watch have found the prisons squalid:
"overcrowded, filthy and unsanitary cells, insect infestation,
inadequate or no light in cells, insufficient ventilation…".
A Jamaican cabinet task force of 1989 was "shocked at the
there is no substantial improvement to report.
The equivalent of about fifty cents a day is budgeted for food
for each inmate. St.
Catherine's District Prison, which houses 1300 inmates in a space built
for 800, has had prison riots between 1990 and 1992 arising out of
conditions there. The
sanitary conditions, due to inadequate plumbing and garbage disposal,
are dreadful. The
conditions at the General Penitentiary are substantially similar.
Recent studies have reiterated the findings of earlier studies
that the situation has not improved.
The Commission must next determine whether Mr. Aitken’s
conditions of detention, as determined by the Commission, are
inconsistent with Articles 5(1) or 5(2) of the Convention.
After carefully considering the information available, the
Commission has found that Mr. Aitken’s detention conditions, when
considered in light of the lengthy period of nearly four years for which
he has been detained on death row, fail to satisfy the standards of
humane treatment under Articles 5(1) and 5(2) of the Convention.
134. In reaching this conclusion, the Commission has evaluated Mr. Aitken’s conditions in light of previous decisions of this Commission and by the Inter-American Court of Human Rights, in which similar conditions of detention were found to violate Article 5 of the Convention.  As in these previous cases, the record in the present case indicates that Mr. Aitken has been held in solitary confinement on death row, in confined conditions with inadequate hygiene, ventilation and natural light. In addition, the Petitioners claim that Mr. Aitken is allowed out of his cell infrequently, and does not have access to any work or education facilities. The Petitioners' information also indicates that prisoners are often the subject of abuse by prison guards and Mr. Aitken contends that he was assaulted by police officers upon his arrest in July 1996. These observations, together with the length of time over which Mr. Aitken has been held in detention, indicate that Mr. Aitken’s treatment has failed to meet the minimum standards under Articles 5(1) and 5(2) of the Convention. As the Commission has observed in previous cases, these standards apply irrespective of the nature of the conduct for which the person in question has been imprisoned  and regardless of the level of development of a particular State Party to the Convention. 
135. A comparison of Mr. Aitken‘s prison conditions with international standards for the treatment of prisoners also suggests that his treatment has failed to respect minimum requirements of humane treatment. In particular, Rules 10, 11, 12, 15, and 21 of the United Nations Standard Minimum Rules for the Treatment of Prisoners,  which in the Commission's view provide reliable benchmarks as to minimal international standards for the humane treatment of prisoners, prescribe for the following basic standards in respect of accommodation, hygiene, medical treatment and exercise:
10. All accommodation provided for
the use of prisoners and in particular all sleeping arrangements shall
meet all requirements of health, due regard being paid to climactic
conditions and particularly to cubic content of air, minimum floor
space, lighting, heating and ventilation.
11. In all places where prisoners are
required to live or work,
(a) the windows shall be large enough to enable
the prisoners to read or work by natural light, and shall be so
constructed that they can allow the entrance of fresh air whether or not
there is artificial ventilation;
(b) Artificial light shall be provided sufficient
for the prisoners to read or work without injury to eyesight.
12. The sanitary installations shall
be adequate to enable every prisoner to comply with the needs of nature
when necessary and in a clean and decent manner.
15. Prisoners shall be required to
keep their persons clean, and to this end they shall be provided with
water and with such toilet articles as are necessary for health and
21.(1) Every prisoner who is not employed in outdoor work shall
have at least one hour of suitable exercise in the open air daily if the
(2) Young prisoners, and others of suitable age and physique, shall receive physical and recreational training during the period of exercise. To this end space, installations and equipment should be provided.
136. It is evident based upon the Petitioners' allegations that the State has failed to satisfy these minimum standards of proper treatment of prisoners. The cumulative impact of such conditions, together with the length of time for which Mr. Aitken has been incarcerated in connection with his criminal proceedings, cannot be considered consistent with the right to humane treatment under Article 5 of the Convention. 
137. Consequently, the Commission finds that the conditions of detention to which Mr. Aitken has been subjected fail to respect the physical, mental and moral integrity of the victims as required under Article 5(1) of the Convention, and, in all of the circumstances, constitute cruel, inhuman or degrading treatment or punishment contrary to Article 5(2) of the Convention. The Commission therefore finds the State responsible for violations of these provisions of the Convention in respect of Mr. Aitken, in conjunction with the State‘s obligations under Article 1(1) of the Convention.
138. The Petitioners have also contended that execution by hanging constitutes cruel, unusual or degrading punishment or treatment contrary to Article 5(2) of the Convention and claim that hanging is therefore inconsistent with the requirements under Article 4(2) of the Convention governing the implementation of capital punishment. Given its conclusions in Part IV.C.2 of this Report that Mr. Aitken’s death sentence contravenes Articles 4, 5 and 8 of the Convention so as to render any subsequent execution unlawful, the Commission does not consider it necessary to determine for the purpose of this complaint whether the method of execution employed in Jamaica constitutes cruel, inhuman or degrading punishment or treatment contrary to Article 5(2) of the Convention. The Commission nevertheless reserves its competence to determine in an appropriate case in the future whether hanging is a particularly cruel, inhuman or degrading punishment or treatment in comparison with other methods of execution.
See supra, note 6.
F. Deidrick v. Jamaica, Communication Nº 619/1995.
The State indicated in this regard that it adopts the decisions of the
Judicial Committee of the Privy Council in Pratt and Morgan and Larry
Raymond Jones and states that as Mr. Aitken was duly convicted of
capital murder and sentenced to death by hanging, his sentence is not
arbitrary, cruel, inhuman, degrading or in breach of Articles 5(1) or
5(2) of the Convention.
In its observations, the State describes Section 3 of the Poor
Prisoners’ Defense Act as follows: “Where it appears to a
certifying authority, (certifying authority is defined as a Resident
Magistrate or a Judge of the Supreme Court), that the means of a
person charged with or as the case may be convicted of a scheduled
offense are insufficient to enable that person to obtain legal aid,
the certifying authority shall grant in respect of that person a legal
aid certificate which, shall entitle him to free legal aid in
preparation and conduct of his defense in the appropriate proceedings
or in such of the appropriate proceedings as may be specified in the
legal aid certificate and to have counsel or solicitor assigned to him
for that purpose in the prescribed manner.”
Basic Documents Pertaining to Human Rights in the Inter-American
System, OEA/Ser.L/V/I.4 rev.8 (22 May 2001), p. 48.
See e.g. Desmond McKenzie et
al. v. Jamaica, Case Nº 12.023, Annual Report of the IACHR 1999;
Garza v. United States, supra.
Court H.R., Loayza Tamayo Case, Preliminary Objections, Judgment of
January 31, 1996, Series C Nº 25, para. 40.
See Baptiste v. Grenada,
Report Nº 38/00, Annual Report
of the IACHR 1999, p. 721, at p. 738; McKenzie et al. v.
Jamaica, Report Nº 41/00, Annual
Report of the IACHR 1999, p. 918, at p. 967.
See e.g. McKenzie et al.
Case, supra, para. 169.
See Santiago Marzioni v. Argentina,
Report Nº 39/96, Annual Report
of the IACHR 1996, p. 76, paras. 48-52. See also Clifton Wright
v. Jamaica, Case Nº 9260 , Annual
Report of the IACHR 1987-88, p. 154.
Offences Against the Person Act, as amended by the Offences Against
the Person (Amendment) Act, 1992 (13 October 1992), Nº 14.
In addition, Section 3(1A) of the Act prescribes the death penalty as
the mandatory punishment for an individual who has been convicted of
more than one non-capital murder on the same or a different occasion,
Subject to subsection (5) of section 3B, a person who is convicted of
non-capital murder shall be sentenced to death if before that
conviction he has-
whether before or after the 14th October, 1992, been
convicted in Jamaica of another murder done on a different occasion;
been convicted of another murder done on the same occasion.
See McKenzie et al. Case, supra, para. 178.
Sections 3(2) to 3(6) of the Act prescribe a specific procedure by
which a jury is to determine whether a defendant is pregnant for the
purposes of section 3(1) of the Act:
Where a woman convicted of an offence punishable with death is found
in accordance with the provisions of this section to be pregnant, the
sentence to be passed on her shall be a sentence of imprisonment with
or without hard labour for life instead of sentence of death.
(3) Where a woman convicted of an
offence punishable with death alleges that she is pregnant, or where
the court before whom a woman is so convicted thinks fit to order, the
question whether or not the woman is pregnant shall, before sentence
is passed on her, be determined by a jury.
(4) Subject to the provisions of
this subsection, the said jury shall be the trial jury, that is to say
the jury to whom she was given in charge to be tried for the offence,
and the members of the jury need not be re-sworn:
(a) if any member of the trial
jury, after the conviction, dies or is discharged by the court as
being through illness incapable of continuing to act for any other
cause, the inquiry as to whether or not the woman is pregnant shall
proceed without him; and
(b) where there is no trial jury,
or where a jury have disagreed as to whether the women is or is not
pregnant, or have been discharged by the court without giving a
verdict on that question, the jury shall be constituted as if to try
whether or not she was fit to plead, and shall be sworn in such manner
as the court may direct.
(5) The question whether the
woman is pregnant or not shall be determined by the jury on such
evidence as may be laid before them either on the part of the woman or
on the part of the Crown, and the jury shall find that the woman is
not pregnant unless it is proved affirmatively to their satisfaction
that she is pregnant.
(6) Where in proceedings under
this section the jury finds that the woman in question is not pregnant
the woman may appeal under the Judicature (Appellate Jurisdiction)
Act, to the Court of Appeal and that Court, if satisfied that for any
reason the finding should be set aside, shall quash the sentence
passed on her and instead thereof pass on her a sentence of
imprisonment with or without hard labour for life:
that the operation of the provisions of this subsection shall be
deemed to be coincident with the operation of the Judicature
(Appellate Jurisdiction) Act.
McKenzie et al. Case, supra, para. 186-187, citing I/A Court H.R., Advisory Opinion
OC-3/83 of September 8, 1983, Restrictions to the Death Penalty (Arts.
4(2) and 4(4) of the American Convention on Human Rights), Annual Report 1984, p. 31,
para. 52 (finding that the text of Article 4 of the Convention
as a whole reveals a clear tendency to restrict the scope of the death
penalty both as far as its imposition and its application are
concerned.); Anthony McLeod v. Jamaica, Communication Nº 734/1997,
U.N.Doc CCPR/C/62/734/1997. See similarly Baptiste Case, supra, paras.
McKenzie et al.
supra, para. 188, citing, inter
alia, Woodson v. North Carolina 49 L Ed 2d 944, 961 (finding that
“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
Id, para. 189, citing Advisory
Opinion OC-3/83, supra,
para. 55 (observing with regard to Article 4 of the Convention that
“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 account.”).
Id., paras. 193-207. See
similarly Baptiste Case, supra,
UNHRC, Eversley Thompson v. St. Vincent and the Grenadines,
Communication Nº 806/1998 (October 18, 2000).
Eastern Caribbean Court of Appeal, Newton Spence v. The Queen, Peter
Hughes v. The Queen, Criminal Appeal Nos. 20 of 1998 and 14 of 1997,
Judgment, 2 April 2001.
McKenzie et al.
Case, supra, para. 207.
McKenzie et al.
supra, paras. 208, 212-219,
citing Woodson v. North Carolina 49 L Ed 2d 944 (U.S.S.C.); The State
v. Makwanyane and McHunu, Judgment, Case Nº CCT/3/94 (6 June 1995)
(Constitutional Court of the Republic of South Africa); Bachan Singh
v. State of Punjab (1980) 2 S.C.C. 475 (Supreme Court of India). See
also Baptiste Case, supra.
McKenzie et al.
Case, supra, para. 210.
similarly McKenzie et
al. Case, supra, para. 234; Baptiste Case, supra, para. 127.
similarly McKenzie et
al. Case, supra, para. 235; Baptiste Case, supra, para. 128.
similarly McKenzie et
supra, para. 237; Baptiste
Case, supra, para. 130.
See supra, note 6, setting
out sections 90 and 91 of the Jamaica (Constitution) Order in Council
1962, Second Schedule.
McKenzie et al.
supra, paras. 227-232.
Id., para. 228.
Id. The Commission reasoned that
the right to apply for amnesty, pardon or commutation of sentence
under Article 4(6) of the Convention may be regarded as similar to the
right under Article XXVII of the American Declaration of every person
"to seek and receive" asylum in foreign territory, in
accordance with the laws of each country and with international
agreements, which the Commission has interpreted, in conjunction with
the 1951 Convention Relating to the Status of Refugees and the 1967
Protocol Relating to the Status of Refugees, as giving rise to a right
under international law of a person seeking refuge to a hearing in
order to determine whether that person qualifies for refugee status.
See Haitian Center for Human Rights and others v. United States, Case
Nº 10.675 (13 Match 1997), Annual Report of the IACHR 1996, para.
155. The Commission also observed that some common law jurisdictions
retaining the death penalty have prescribed procedures through which
condemned prisoners can engage and participate in the amnesty, pardon
or commutation process See Ohio Constitution, Art. III, s. 2, Ohio
Revised Code Ann., s. 2967.07 (1993). See
also Ohio Adult Parole Authority v. Woodward, Court File Nº
96-1769 (25 March 1998)(U.S.S.C.).
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 September
2000)(J.C.P.C.), at p. 23.
Id., at 23-24.
Affidavit of Denton Aitken, sworn on March 17, 2000, paras. 10-17.
Watch, Human Rights in Jamaica: Death Penalty, Prison Conditions and
Police Violence, News from Americas Watch, April 1993, Vol. 5, Nº 3,
In its merits judgment in the Suarez Rosero Case, for example, the
Inter-American Court found that the treatment of the victim, who had
been held incommunicado for over one month in a damp and poorly
ventilated cell measuring five meters by three, together with sixteen
other persons, without necessary hygiene facilities, constituted
cruel, inhuman or degrading treatment or punishment contrary to
Article 5(2) of the Convention. I/A Court H.R., Suarez Rosero Case,
Judgment, 12 November 1997, Annual
Report 1997, at p. 283. See similarly McKenzie et al. Case, supra, paras. 270-291.
McKenzie et al. Case, supra,
citing Eur. Court H.R., Ahmed v. Austria, Judgment of 17 December
1996, Reports of Judgments and
Decisions 1996-VI, p. 220, para. 38.
Id., citing U.N.H.R.C., Mukong v.
Cameroon, Communication Nº 458/1991, U.N. Doc. Nº CCPR/C/51/D/458/1991 (1994), para. 9.3
(observing that certain minimum standards governing conditions of
detention for prisoners, as prescribed by the International Covenant
on Civil and Political Rights and reflected in the U.N. Standard
Minimum Rules for the Treatment of Prisoners, must be observed
regardless of a state party's level of development).
Nations Standard Minimum Rules for the Treatment of Prisoners, adopted
August 30, 1955 by the First United Nations Congress on the Prevention
of Crime and the Treatment of Offenders, U.N. Doc. A/CONF/611, annex
I, E.S.C. res. 663C, 24 U.N. ESCOR Supp. (Nº 1) at 11, U.N. Doc.
E/3048 (1957), amended E.S.C. Res. 2076, 62 U.N. ESCOR Supp. (Nº 1)
at 35, U.N. Doc E/5988 (1977).
 See similarly European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), Second General Report on the CPT's Activities Covering the Period 1 January to 31 December 1991, Ref. CPT/Inf. (92) 3 (13 April 1992), paras. 44-50 (criticizing prison conditions involving overcrowding, the absence of at least one hour of exercise in the open air every day for prisoners, and the practice of prisoners discharging human waste in buckets, and stating that the Committee is "particularly concerned when it finds a combination of overcrowding, poor regime activities and inadequate access to toilet/washing facilities in the same establishment. The cumulative effect of such conditions can prove extremely detrimental to prisoners.").