REPORT Nš 7/97
March 12, 1997
ALLEGATIONS IN PETITION DATED MAY 10, 1994
On May 19, 1994 the Commission received a petition dated May 10,
1994, from Michael P.D. Ellman Esq., of Vizards Solicitors,
Parliamentary Agents, and Privy Council Agents of London, United
Kingdom, filed on behalf of Mr. Delford Gardener against the State of
Jamaica for alleged breaches of the American Convention on Human Rights
(hereinafter, "American Convention.") The Petitioner alleged that Mr. Gardener was convicted, and
sentenced to death for the murder of Adrian Aird, who was killed on
December 3, 1987. The
Petitioner further alleged that Mr. Gardener did not receive a fair
trial in violation of Article 8 of the American Convention on Human
Rights, because the Counsel briefed by him prior to trial failed to
appear at trial. He asked
the Judge for an adjournment in order to obtain representation at trial,
but that application was refused by the Judge.
The Judge instead appointed a "Dock Brief" (hereinafter
referred as "Counsel") to represent him at trial.
The Petitioner also alleged that his Counsel was not adequately
prepared for his trial, did not take a statement from him, nor did he
take his instructions on the Prosecution evidence at trial, and that
"such instructions which were taken were taken from time to time
whilst Mr. Gardener was in the dock." The petitioner further
alleged that Mr. Gardener's Counsel "failed to cross-examine as to
material instructions relating to the conduct of an identification
parade to which Mr. Gardener was identified by a witness; failed to
cross-examine on substantial discrepancies in the evidence of the
identification witnesses (who gave markedly different accounts and one
of whom in fact identified Mr. Gardener's co-accused as the gunman);
failed to cross-examine or indeed to object to the "confrontation
evidence;" and failed to call any evidence on behalf of Mr.
Gardener despite express instructions to call alibi evidence."
Moreover, the Petitioner alleged, that Mr. Gardener's appeal to
the Court of Appeal in Jamaica was conducted by Ms. Helen Birch who did
not see Mr. Gardener prior to the hearing of the Appeal and consequently
did not take his instructions upon it. The petitioner further alleged that Mr. Gardener was not
present at the hearing of the Appeal and Miss Birch withdrew the
Application for Leave to Appeal without instructions and contrary to Mr.
Gardener's instructions. Consequently,
the appeal was not argued, and Mr. Gardener's consent to this course was
The Petitioner argued that Mr. Gardener has had no effective
representation either at trial or before the Court of Appeal and thus
has not had a fair trial within the meaning of Article 8.2c, d, f and h
of the American Convention. The
Petitioner contended that at the minimum, the concept of effective legal
a defendant charged with a serious offence should be represented by
Counsel of his choice.
he should have an opportunity to give full and proper instructions to
that Counsel who in turn should have adequate opportunity to prepare the
all material witnesses should be called and in any event a material
witness should be called whom a defendant wishes to be called.
a defendant's instructions should be taken before the hearing of any
appeal and in particular a Defendant's authority should be obtained to
withdraw an appeal.
alleged to have been made in a "confrontation exercise" by the
defendant and his co-accused in the Police Station without any caution
having been administered, should not be admitted at the trial.
The Petitioner argued that Mr. Gardener has been subjected to
inhumane or degrading punishment or treatment in breach of Article 5 of
the American Convention. It was almost five and a half years since the death sentence
was imposed and almost three
years since the Court of Appeal's decision.
The Jamaican authorities have not taken any steps to carry out
the execution since the sentence was passed.
Mr. Gardener has been exposed to the mental anguish of
alternating hope and fear inspired by the changing attitudes of the
Jamaican Authorities to the implementation of sentence on those awaiting
execution on death row. At times there existed a de facto moratorium.
At other times, executions were scheduled for other prisoners and
a threat of execution became real and terrible.
The delay and uncertainty has increased for him, the suffering
inevitably associated with the death sentence to the point where he has
been exposed to an unnecessarily prolonged and cruel experience of
mental anguish in anticipation of his punishment whilst located on death
The Petitioner further argued that the Judgment of the Judicial
Committee of the Privy Council (ultimate Court of Appeal for Jamaica) in
Pratt v. Morgan in November 1993 records that their Lordships
came to the conclusion that "in any case in which execution is to
take place more than five years after sentence, there will be strong
grounds for believing that the delay is such as to constitute inhuman or
degrading punishment or other treatment.
If therefore, rather than waiting for all those prisoners who
have been on death row under sentence of death for five years or more to
commence proceedings pursuant to Section 25 of the Constitution, the
Governor General now refers all such cases to the Judicial Committee of
the Privy Council, who, in accordance with the guidance contained in
this advice recommends commutation to life imprisonment, substantial
justice will be achieved swiftly and without provoking a flood of
applications to the Supreme Court for constitutional relief pursuant to
Furthermore, the Petitioner argued that the delay in carrying out
the death sentence has rendered the sentence itself unlawful and in
breach of Articles 5.1 and 5.2 of the American Convention.
ARTICLES ALLEGEDLY VIOLATED
Articles 5.1, 5.2, 8.2c, d, f and h of the American Convention.
Articles 7 and 10(1) of the International Covenant on Civil and
Article 5(1) provides:
Article 5(2) provides:
No one shall be subjected to torture or to cruel,
inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with
respect for the inherent dignity of the human person."
Article 8 (2) provides:
Every person accused of a criminal offense has the right
to be presumed innocent so long as his guilt has not been proven
according to law. During the proceedings, every person is entitled, with
full equality, to the following minimum guarantees:
c. adequate time and
means for the preparation of his defense;
d. the right of the
accused to defend himself personally or to be assisted by legal counsel
of his own choosing, and to communicate freely and privately with his
f. the right of the
defense to examine witnesses present in the court and to obtain the
appearance, as witnesses, of experts or other persons who may throw
light on the facts;
h. the right to
appeal the judgment to a higher court.
Article 7 of the International Covenant on Civil and Political
Rights (hereinafter "ICCPR") provides:
No one shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishment. In particular, no one shall be subjected without his free
consent to medical or scientific experimentation.
Article 10 (1) of ICCPR provides:
All persons deprived of their liberty shall be treated
with humanity and with respect for the inherent dignity of the human
PETITIONER REQUESTS THAT
The Commission finds that the Government of Jamaica has breached
the alleged Articles of the American Convention in relation to Mr.
PROCEEDINGS BEFORE THE COMMISSION
Receipt of Documentary Materials
Upon receipt of the petition of May 10, 1994, and up to the
presentment of the petition, the Commission has complied with the
procedural requirements of its
Regulations. It has
studied, examined and considered all of the information submitted by the
During this period the Commission communicated with the
Government of Jamaica by notes. On June 30, 1994, it sent the pertinent parts of the
petition, and additional information, including the Petitioner's
Response dated April 27, 1995 to the Government of Jamaica with requests
that it supply information which it deemed appropriate to the
allegations of the complaint, and which addressed the issue of
exhaustion of domestic legal remedies within 90 days and 30 days
Commission qualified these requests by stating that "the request
for information did not constitute a decision as to the admissibility of
the communication." On
February 28, 1995, the Commission received the Government of Jamaica's
reply to the petition, dated February 22, 1995.
The Commission also communicated with the Petitioner by notes and
forwarded the pertinent parts of the Government of Jamaica's Reply to
Petitioner on March 8, 1995, whom it asked to supply it with
observations, if any, within 30 days.
On April 26, 1995, the Commission received the Petitioner's
response dated April 21, 1995, to the Government's Reply to the
petition. The Petitioner also submitted copies of the transcript pages
of the Appeal Proceedings in the Appellate Court of Jamaica, with regard
to Mr. Gardener, and his co-defendants, Mr. Murray and Mr. Delroy Chuck
Criminal Appeal Nos. 216, 217, & 218/88, dated 8th & 15th April
1991. Ms. Helen Birch
represented Mr. Gardener at the Appeal.
On January 13, 1997, the Commission received a note from the
Government of Jamaica, dated January 13, 1997, which stated that
"The Ministry of Foreign Affairs and Foreign Trade acknowledges
receipt of the Petitioner's response to its comments. The delay in
responding is due to the fact that the Petitioner's comments were only
recently received. Having examined the Petitioner's response, the
Ministry has decided not to make a reply at this time.
The Ministry awaits the Commission's decision in this case."
The Legal Submission of the Parties
The Government of Jamaica's Reply to the Petition
The Government of Jamaica submitted a Reply to the petition which
stated that "the Ministry wishes to assert that the communication
is inadmissible for failure to exhaust domestic remedies as required by
Article 46(1)(a) of the Convention. The author is entitled to appeal to the Judicial Committee of
the Privy Council. Until he
has done so, he has not exhausted all available domestic remedies and
his communication is inadmissible."
The Government also stated that in "the interest of
expediting the examination of the communication, the Ministry will now
address the merits of the petition."
The Government argued that "with respect to the alleged
breaches of Article 5(1) and 5(2) by the detention of the author on
death row for 5 1/2 years, the Ministry did not accept that this
constitutes cruel and inhuman treatment.
Delay of itself does not automatically constitute cruel and
inhuman treatment even if it was a source of strain to convicted
prisoners. Nor is the decision of Pratt and Morgan v. the Attorney
General of Jamaica, authority for this view.
Rather, the Ministry feels that each case must be examined on its
merits according to the applicable legal principles in order to make the
The Government further argued that "the author's allegations
that Article 8(2)(c) and (d) were breached relate to the appointment and
conduct of his legal aid attorney.
The Ministry does not accept that the appointment of a dock brief
constitutes a violation of Article 8(2)(c)(d).
Further, the purported failures of counsel in conducting the
case, e.g., failure to challenge the conduct of the identification
parade at which the author was identified, failure to pursue
discrepancies in the evidence of identification witnesses, failure of
alibi are not matters which can be attributed to the State. Once the State has not by act or omission interfered with
counsel's conduct of his case, any shortcomings of such conduct are not
the fault of the State any more than they would have been if counsel had
been privately retained."
Moreover, the Government argued that "on the question of the
circumstances of the author's appeal, investigations disclose no
breaches of the Convention. A
perusal of the Court of Appeal's records do not support the author's
contention that his attorney withdrew the application for leave to
appeal. The records
indicate that the application for leave was dismissed, which is
different. Similarly, the
records indicate that the author was visited by his legal aid
Petitioner's Response to Government's Reply
The Petitioner stated that Mr. Gardener petitioned the Judicial
Committee of the Privy Council for special leave to appeal. His petition
was dismissed following a hearing on January 20, 1994.
The Petitioner argued that the United Nations Human Rights
Committee has held that, "in the absence of legal aid, a
constitutional motion does not constitute an available remedy" - Lynden
Champagnie, Delroy Palmer and Oswald Chisolm.
The Petitioner further argued that in the case of Pratt &
Morgan -v- Attorney General of Jamaica, the Judicial Committee of
the Privy Council (hereinafter "JCPC") held: "...in any
case in which execution is to take place more than five years after
sentence, there will be strong grounds for believing that the delay is
such as to constitute inhuman and degrading punishment or other
treatment." The JCPC also held that a state: "Must accept the
responsibility for ensuring that execution follows as swiftly as
practical after sentence, allowing a reasonable time for appeal and
considering of reprieve. If
the appellate procedure enables the prisoner to prolong the appellate
hearings over a period of years, the fault is to be attributed to the
appellate system that permits such delays and not the prisoner who takes
advantage of it. The JCPC adopted the principles laid down in numerous
other countries including the United States of America in the case of Richmond
Canada - in the case of Kindler -v- Canada;
in the European Court of Human Rights - Soering -v- United Kingdom;
as well as in previous decisions of the JCPC - Abbot -v- Attorney
General of Trinidad & Tobago."
Moreover, the Petitioner submitted that "Mr. Gardener who
has been held on death row for over 6 years has been subject to inhuman
and degrading treatment or punishment in violation of Articles 7 and 10
(1) of the International Covenant on Civil and Political Rights."
In addition, the Petitioner argued that "while the short
comings of a privately appointed lawyer cannot be attributed to the
state party, the failings of Counsel assigned through legal aid should
be so attributed since effective legal assistance must be available in
capital cases. Where
Counsel fails to inform the Defendant that he intends to withdraw an
appeal or can see that it has no merit, effective representation within
the meaning of article 14(3) (d) of the Covenant has not been provided -
Collins -v- Jamaica."
Finally, the Petitioner stated that "relevant parts of the
transcript are attached to show that the author's Attorney informed the
Court of Appeal that "after a very careful perusal of the record,
she found no meritorious ground to argue on behalf of the applicant
Gardener." She thereby effectively destroyed the appellant's
prospect of appeal."
ISSUE ON ADMISSIBILITY
Article 46 (1) of the American Convention specifies the criteria
for the admission of a petition by the Commission.
The only issue with regard to admissibility which is contested by
the parties, is the issue of exhaustion of domestic remedies pursuant to
Article 46(1)(a) of the American Convention.
Therefore, the Commission need only make a finding as to whether
remedies under domestic law in Jamaica, have been pursued and exhausted
by Mr. Gardener, in accordance with generally recognized principles of
international law, pursuant to Article 46(1)(a) of the American
Article 46 (1) of the American Convention states "Admission
by the Commission of a petition or communication lodged in accordance
with Articles 44 or 45 shall be subject to the following requirements:
the remedies under domestic law have been pursued and exhausted in
accordance with generally recognized principles of international
This petition was filed pursuant to Article 44 of the American
The Commission finds that upon examination and consideration of the
record before it, the domestic remedies of Jamaica have been pursued and
exhausted by Mr. Gardener, in accordance with Article 46 of the American
Convention, for the following reasons:
First, Mr. Gardener was convicted, and sentenced to death for a
capital offence. He
appealed to the Court of Appeal in Jamaica and the copies of the pages
of the appeal transcript reflect the date of the appeal proceedings on
"8th & 15 April 1991, in the Court of Appeal in Jamaica,
Supreme Court Criminal Appeal No: 216, 217, & 218/88."
Second, in the Government of Jamaica's Reply to the petition
dated February 22, 1995, it argued that "the Ministry wishes to
assert that the communication is inadmissible for failure to exhaust
domestic remedies as required by Article 46 (1)(a) of the Convention.
The author is entitled to appeal to the judicial Committee of the
Privy Council. Until he has done so, he has not exhausted all available
domestic remedies and his communication is inadmissible." The Petitioner rebutted this argument by arguing in its
response dated April 21, 1995, that: "The appellant petitioned the
Judicial Committee of the Privy Council for Special leave to appeal. His
petition was dismissed following a hearing on 20th January 1994."
The Petitioner further argued that: "The United Nations Human
Rights Committee has held that, in the absence of legal aid,
constitutional motion does not constitute an available remedy - Lynden
Champagnie, Delroy Palmer and Oswald Chisolm."
Third, the record reflects that the Government of Jamaica chose
not to respond to the Petitioner's argument with regard to its statement
that "Mr. Gardener appealed to the Judicial Committee of the Privy
Council for special leave to appeal, and that his petition was dismissed
following a hearing on 20th January, 1994." Nor has the Government
of Jamaica raised any argument concerning the Petitioner's argument that
"the United Nations Human Rights Committee has held that, in the
absence of legal aid, a constitutional motion does not constitute an
Finally, the record reflects that the Commission sent a note, and
forwarded the pertinent parts of the Petitioner's Response to the
Government of Jamaica's Reply, to it, on April 27, 1995, requesting it
to "take whatever measures are deemed necessary so that the
Commission may receive all of the information relevant to this case
within 30 days of receipt." The Commission reiterated this request
by notes, on July 24, 1995, and September 26, 1996.
However, on January 13, 1997, the Commission received a note
dated January 13, 1996, which informed the Commission that inter alia,
"Having examined the Petitioner's response, the Ministry has
decided not to make a reply at this time.
The Ministry awaits the Commission's decision in this case."
The Commission therefore finds, that the Government of Jamaica
chose not to submit further arguments to refute the Petitioner's
contention that Mr. Gardener has pursued and exhausted the domestic
remedies in Jamaica because he appealed both to the Court of Appeal in
Jamaica and the Judicial Committee of the Privy Council in London,
Conclusion: Therefore, the Commission finds that the
Petitioner has established that Mr. Gardener has pursued and exhausted
the domestic remedies in Jamaica, in accordance with generally
recognized principles of international law pursuant to Article 46(1)(a)
of the American Convention.
BASED ON THE FOREGOING REASONS, THE
INTER-AMERICAN COMMISSION ON HUMAN
RIGHTS CONCLUDES THAT:
This case is admissible pursuant to Article 46 (1)(a) of the
This Report will be transmitted to the parties.
Both parties should submit additional legal submissions, if any,
to the Commission with regard to the merits of the petition within 30
This Report will be published in its Annual Report to the General
Assembly of the OAS.
Article 44 states "any person or group of persons, or
any nongovernmental entity legally recognized in one or more member
states of the Organization, may lodge petitions with the Commission
containing denunciations or complaints of violation of this
Convention by a State Party." Id. Basic Documents.