Among the fundamental principles upon which the American
Convention is grounded is the recognition that the rights and freedoms protected
thereunder are derived from the attributes of their human personality.
From this principle flows the basic requirement underlying the Convention as a
whole, and Article 5 in particular, that individuals be treated with dignity and
respect. Accordingly, Article 5(1) guarantees to each person the right to have
his or her physical, mental, and moral integrity respected, and Article 5(2)
requires all persons deprived of their liberty to be treated with respect for
the inherent dignity of the human person. These guarantees presuppose that
persons protected under the Convention will be regarded and treated as
individual human beings, particularly in circumstances in which a State Party
proposes to limit or restrict the most basic rights and freedoms of an
individual, such as the right to liberty. In the Commission’s view,
consideration of respect for the inherent dignity and value of individuals is
especially crucial in determining whether a person should be deprived of his or
The mandatory imposition of the death sentence, however, has both
the intention and the effect of depriving a person of their right to life based
solely upon the category of crime for which an offender is found guilty, without
regard for the offender’s personal circumstances or the circumstances of the
particular offense. The Commission cannot reconcile the essential respect for
the dignity of the individual that underlies Article 5(1) and (2) of the
Convention, with a system that deprives an individual of the most fundamental of
rights without considering whether this exceptional form of punishment is
appropriate in the circumstances of the individual’s case.
Finally, the Commission considers that the imposition of mandatory
death sentences cannot be reconciled with an offender’s right to due process,
as contemplated in and as provided for in Articles 4 and 8 of the Convention. It
is well established that proceedings leading to the imposition of capital
punishment must conform to the highest standards of due process. The due process
standards governing accusations of a criminal nature against an individual are
prescribed in Articles 8(1) and 8(2) of the Convention, which include the right
to a hearing before a competent, independent and impartial tribunal, the right
of the accused to defend himself or herself, personally or by counsel, and the
right to appeal the judgment to a higher court. In addition, as noted
previously, Article 4 of the Convention provides that the death penalty should
be imposed only for the most serious offenses, and contemplates that certain
factors attributable to a particular offender or offense may bar the imposition
of the death penalty altogether in the circumstances of a particular case.
In the Commission’s view, therefore, the due process guarantees
under Article 8 of the Convention, when read in conjunction with the
requirements of Article 4 of the Convention, presuppose as part of an
individual’s defense to a capital charge an opportunity to make submissions
and present evidence as to whether a death sentence may not be a permissible or
appropriate punishment in the circumstances of his or her case. This may be on
the basis, for example, that the crime for which they have been convicted should
be considered a political or related common crime within the meaning of the
Convention. The due process guarantees should also be interpreted to include a
right of effective review or appeal from a determination that the death penalty
is an appropriate sentence in a given case.
The mandatory imposition of the death sentence is inherently
antithetical to these prerequisites. By its nature, it precludes any opportunity
on the part of the offender to make, or for the Court to consider,
representations or evidence as to whether the death penalty is a permissible or
appropriate form of punishment, based upon the considerations in Article 4 of
the Convention or otherwise. Also, as noted previously, it precludes any
effective review by a higher court of a decision to sentence an individual to
Contrary to the current practice in Grenada, the Commission
considers that imposing the death penalty in a manner which 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 an appropriate form of punishment in the
circumstances of their 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
In this regard, as the following discussion of international and
domestic jurisdictions will indicate, a principle of law has developed common to
those democratic jurisdictions that have retained the death penalty, according
to which the death penalty should only be implemented through
“individualized” sentencing. Through this mechanism, the defendant is
entitled to present submissions and evidence in respect of all potentially
mitigating circumstances relating to himself and his or her 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. Consistent with the foregoing discussion, the Commission considers
that the high standards of due process and humane treatment under Articles 4, 5
and 8 of the Convention governing the lawful imposition of the death penalty
should be interpreted to require individualized sentencing in death penalty
cases. In the Commission’s view, this is consistent with the restrictive
interpretation to be afforded to Article 4 of the Convention, and in particular
the Inter-American Court’s view that Article 4 of the Convention should be
interpreted “as imposing restrictions designed to delimit strictly the scope
and application of the death penalty, in order to reduce the application of the
penalty to bring about its gradual disappearance.”
In light of the foregoing analysis, the Commission considers that
the imposition of a mandatory death sentence by the State for the crime of
murder, is not consistent with the terms of Article 4(1), 5(1), 5(2), 8(1) and
8(2) of the Convention and the principles underlying those Articles.
Individualized sentencing in other international and domestic
The experience of other international human rights authorities, as
well as the high courts of various common law jurisdictions that have, at least
until recently, retained the death penalty, substantiates and reinforces an
interpretation of Articles 4, 5, and 8 of the Convention that prohibits the
mandatory imposition of the death sentence. In this connection, it is the
Commission’s view, based upon a study of these various international and
domestic jurisdictions, that a common precept has developed whereby the exercise
of guided discretion by sentencing authorities to consider potentially
mitigating circumstances of individual offenders and offenses is considered to
be a condition sine qua non to the
rational, humane and fair imposition of capital punishment. Mitigating
circumstances requiring consideration have been determined to include, inter alia, the character and record of the offender, the subjective
factors that might have influenced the offender’s conduct, the design and
manner of execution of the particular offense, and the possibility of reform and
social readaptation of the offender.
In the case of Lubuto
for example, the complainant had received a mandatory death sentence for armed
robbery. The United Nations Human Rights Committee did not address the question
of whether mandatory death penalties per
se contravened the International Covenant on Civil and Political Rights (“ICCPR”).
The Committee found, however, that the absence of discretion on the part of a
sentencing authority to consider the particular circumstances of an offense in
determining whether the death penalty is an appropriate punishment may, in
certain circumstances, contravene internationally prescribed conditions for
implementing capital punishment. In this case, the Committee found that the
absence of discretion contravened the requirement under Article 6(2) of the
that the death penalty be imposed “only for the most serious crimes”. The
that in this case use of firearms did not produce the death or wounding of any
person and that the court could not under the law take these elements into
account in imposing sentence, the Committee is of the view that the mandatory
imposition of the death sentence under these circumstances violates article 6,
paragraph 2 of the Covenant.
The United Nations Special Rapporteur on Extra-Judicial, Summary
or Arbitrary Executions has suggested more generally that the due process
standards applicable in death penalty proceedings require, inter alia, that all mitigating factors be taken into account in
The highest courts of various common law jurisdictions in which
the death penalty has, at least until recently, been retained have similarly
considered the rational, humane and fair imposition of the death penalty to
require guided discretion on the part of the sentencing authority to consider
mitigating circumstances of individual offenders and offenses. The United States
Supreme Court in the case of Woodson v. State of North Carolina
found that a mandatory death sentence for first degree murder under the
law of North Carolina violated the Eighth
and Fourteenth Amendments to the U.S.
Constitution. Among the grounds for the Court’s decision was a finding that
the mandatory death penalty did not satisfy a basic constitutional requirement,
and that the process for imposing a death sentence should not be arbitrary, but
rather incorporate “objective standards” that guide and regularize the
process and make it amenable to judicial review.
The Court also found that the mandatory death penalty failed to allow the
particularized consideration of relevant aspects of the character and record of
each convicted defendant before imposing a death sentence upon him, and was
therefore inconsistent with the fundamental respect for humanity underlying the
prohibition of cruel and unusual punishment under the Eighth Amendment. In
respect of the latter ground, the Court made the following compelling
Furman, members of the Court acknowledged what cannot be fairly denied – that
death is a punishment different from all other sanctions in kind rather than
A process that accords no significance to relevant facets of the character and
record of the individual offender or the circumstances of the particular offense
excludes from consideration in fixing the ultimate punishment of death the
possibility of compassionate or mitigating factors stemming from the diverse
frailties of humankind. It treats all persons convicted of a designated offense
not as uniquely individual human beings, but as members of a faceless,
undifferentiated mass to be subjected to the blind infliction of the penalty of
Court has previously recognized that “[f]or the determination of sentences,
justice generally requires consideration of more than the particular acts by
which the crime was committed and that there be taken into account the
circumstances of the offense together with the character and propensities of the
Consideration of both the offender and the offense in order to arrive at a just
and appropriate sentence has been viewed as a progressive and humanizing
development. While the prevailing
practice of individualizing sentencing determinations generally reflects simply
an enlightened policy rather than a constitutional imperative, we believe that
in capital cases the fundamental respect for humanity underlying the Eighth
requires consideration of the character and record of the individual offender
and the circumstances of the particular offense as a constitutionally
indispensable part of the process of inflicting the penalty of death.
conclusion rests squarely on the predicate 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 case.
In the case of The State v. Makwanyane and McHunu,
the Constitutional Court of South Africa struck down the death penalty provision
of the Criminal Procedure Act Nº 51
as inconsistent with South Africa’s 1993 Constitution. As part of its
analysis, that Court also suggested that the guided discretion provided to South
African judges to consider the personal circumstances and subjective factors of
a defendant in applying the death penalty satisfied in part the requirement that
the death penalty not be imposed arbitrarily or capriciously; the Court reasoned
as follows [footnotes included]:
his argument on the reasons which found favour with the majority of the United
States Supreme Court in Furman v. Georgia, Mr. Trengove contended on
behalf of the accused that the imprecise language of section 277, and the
unbounded discretion vested by it in the Courts, make its provisions
our court system questions of guilt and innocence, and the proper sentence to be
imposed on those found guilty of crimes, are not decided by juries. In capital
cases, where it is likely that the death sentence may be imposed, judges sit
with two assessors who have an equal vote with the judge on the issue of guilt
and on any mitigating or aggravating factors relevant to sentence; but
sentencing is the prerogative of the judge alone. The Criminal Procedure Act
allows a full right of appeal of persons sentenced to death, including a right
to dispute the sentence without having to establish an irregularity or
misdirection on the part of the trial judge. The Appellate Division is empowered
to set the sentence aside if it would not have imposed such a sentence itself,
and it has laid down criteria for the exercise of this power by itself and other
If the person sentenced to death does not appeal, the Appellate Division is
nevertheless required to review the case and to set aside the death sentence if
it is of the opinion that it is not a proper sentence.
and aggravating factors must be identified by the Court, bearing in mind that
the onus is on the State to prove beyond a reasonable doubt the existence of
aggravating factors, and to negate beyond a reasonable doubt the presence of any
mitigating factors relied upon by the accused.
Due regard must be paid to personal circumstances and subjective factors
which might have influenced the accused person’s conduct,
and these factors must then be weighed with the main objects of punishment,
which have been held to be: deterrence, prevention, reformation, and
retribution. In this
process “[e]very relevant consideration should receive the most scrupulous
care and attention,”
and the death sentence should only be imposed in the most exceptional
cases, where there is no reasonable prospect of reformation and the objects of
punishment would not be properly achieved by any other sentence. 
seems to me to be little difference between the guided discretion required for
the death sentence in the United States, and the criteria laid down by the
Appellate Division for the imposition of the death sentence. The fact that the
Appellate Division, a court of experienced judges, takes the final decision in
all cases is, in my view, more likely to result in consistency of sentencing,
than will be the case where sentencing is in the hands of jurors who are offered
statutory guidance as to how that discretion should be exercised.
Similarly, in the of case Bachan Singh v. State of Punjab, the appellant
argued before the Supreme Court of
India that section 354(3) of the Indian Criminal Procedure Code, 1973
contravened the requirement under Article 21 of the Indian Constitution that
“[n]o person shall be deprived of his life or personal liberty except
according to procedure established by law,” because the provision provided
judges with too much discretion in determining whether offenders should be
sentenced to death.
The Indian Supreme Court rejected the appellant’s contention,
because in the Court’s view, it was consistent with the requirements of
Article 21 for the legislation to leave the imposition of the death penalty to
“the judicial discretion of the Courts which are manned by persons of reason,
experience and standing in the profession” who exercise their sentencing
discretion “judicially in accordance with well-recognized principles
crystallised by judicial decisions directed along the broad contours of
legislative policy towards the signposts enacted in section 354(3).” In reaching this
conclusion, the Court articulated the following propositions intended to guide
Indian judges in exercising their sentencing discretion relating to the death
the normal rule is that the offense of murder shall be punished
with the sentence of life imprisonment. The Court can depart from that rule and
impose the sentence of death only if there are special reasons for doing so.
Such reasons must be recorded in writing before imposing the death sentence.
while considering the question of sentence to be imposed for the
offense of murder under section 302, Penal Code, the Court must have regard to
every relevant circumstance relating to the crime as well as the criminal. If
the Court finds, but not otherwise, that the offense is of an exceptionally
depraved and heinous character and constitutes, on account of its design and the
manner of its execution, a source of grave danger to the society at large, the
Court may impose the death sentence.
The Court also emphasized the crucial role that mitigating factors
play in the humane imposition of capital punishment. The Court stated that the
“scope and concept of mitigating factors in the area of the death penalty must
receive a liberal and expansive construction by the Courts in accord with the
sentencing policy written in section 354(3),” and opined that:
real and abiding concern for the dignity of human life postulates resistance to
taking a life through law’s instrumentality. That should not
be done save in the rarest of rare cases when the alternative option is
The experience in other international and domestic jurisdictions
therefore suggests that a Court must have the discretion to take into account
the individual circumstances of an individual offender and offense must be taken
into account by a court in determining whether the death penalty can and should
be imposed, if the sentencing is to be considered rational, humane and rendered
in accordance with the requirements of due process. The individual circumstances
to be considered have been determined to include the character and record of the
offender, the subjective factors that might have influenced the offender’s
conduct, the design and manner of execution of the particular offense, and the
possibility of reform and social readaptation of the offender.
Authorities in these jurisdictions have also suggested that, in
order to be exercised in a rational and non-arbitrary manner, the sentencing
discretion should be guided by legislative or judicially-prescribed principles
and standards, and should be subject to effective judicial review, all with a
view to ensuring that the death penalty is imposed in only the most exceptional
and appropriate circumstances. The Commission considers that these principles
should also be considered in interpreting and applying Articles 4, 5 and 8 of
the Convention, so as to require individualized sentencing in implementing the
death penalty. To accept any lesser standard would, in the Commission’s view,
fail to afford sufficient protection to the most fundamental of rights under the
The case before the Commission
Mandatory death penalty
As indicated previously, Mr. Baptiste was found guilty of murder
pursuant to Section 234 of the Criminal Code of Grenada and was sentenced to a
mandatory death sentence by hanging. Section 234 of the Criminal Code
specifically states that “whoever commits murder shall be liable to suffer
death.” With respect to the elements of the crime of murder in Grenada, the
Trial Judge instructed the Jury “that the prosecution have to prove that the
accused man did the act intentionally and that that act which accused man did
intentionally caused the death of Annie Baptiste- Lambert by unlawful harm
contrary to Section 234 of the Criminal Code.”
Consequently, the Commission concludes that once Mr. Baptiste was
found guilty of the crime of murder, the law in Grenada did not permit a hearing
by the courts as to whether the death penalty was a permissible or appropriate
penalty for Mr. Baptiste. There was no opportunity for the trial judge or the
jury to consider such factors as Mr. Baptiste's character or record, the nature
or gravity of the offense, or the subjective factors that may have motivated Mr.
Baptiste's conduct. Mr. Baptiste was likewise precluded from making
representations on these matters. The Court sentenced Mr. Baptiste based solely
upon the category of crime for which he had been found responsible.
Moreover, the record before the Commission indicates that there
may have been mitigating circumstances pertaining to Mr. Baptiste that could
have been taken into account during sentencing, and which may be considered to
illustrate the necessity of individualized sentencing. More particularly, the
record suggests that Mr. Baptiste's conduct was motivated by his desire to
prevent his mother from inflicting further harm on him or his younger brother.
For example, in an unsworn statement from the dock during his trial, Mr.
Baptiste stated as follows:
mother beat Deverill for a long time and did not stop. I went across by my
mother. I hold on to the belt which she was beating my brother with.
I release my brother and I send him outside in the yard. I take the
belt from my mother because the belt belong to my girlfriend Bernadette and I
went back in the house together with the belt where I live.
Mr. Baptiste continued:
ten past twelve my mother leave her house and she was coming to me. She had on a
yellow hat on her head. She did not had anything in her hand.
I did not had anything in my hand either.
When she reach in front of me she slapped my face … When she reach in front of me she say “today!
Today! I must kill you” and she slapped me in my face.
I pull down the lace from the line.
I open the cabouya in it. I
try to pass it over my mother head and then pass it over her shoulder to tie her
both hands. Whilst doing so, my
mother jerked away then the lace draw in her neck.
She fell to the ground. I let out the lace the same time.
I rush for a cutlass and I
cut off the lace from my mother neck. . . I did not want to do anything to my
mother more than to tie her hands because she hit me in my face.
I only wanted to prevent her from hitting me again or do anything to me.
Mr. Baptiste’s statements therefore suggest that his mother's
threats and abuse constituted a significant motivating factor behind his crime.
In addition, according to Mr. Baptiste’s unsworn statement, he
had not planned to inflict harm on his mother. It was only upon being slapped by
his mother with the accompanying words; “Today, today, I must kill you,”
that he removed the laces from the line and passed them over her head to stop
her from slapping him. He stated that he did not intend to do anything more to
his mother than tie both of her hands. While the jury may not have been
satisfied that this evidence negated the mental element for the crime of murder,
his state of mind may have been a mitigating circumstance in determining whether
the circumstances of Mr. Baptiste's crime warranted imposition of the death
The Commission does consider the death of Mr. Baptiste’s mother
to be a serious matter. The evidence on the record also suggests, however, that
Mr. Baptiste's offense constituted a spontaneous reaction to threats and acts of
abuse previously perpetrated by his mother. In the Commission's view, these
circumstances are pertinent in determining whether Mr. Baptiste's offense
warrants punishment by the death penalty.
The record before the Commission also reveals other mitigating
factors in this case pertaining to the character and disposition of Mr. Baptiste,
and his relationship in dealing with his other siblings. For example, Mrs. Roma
Findlay, a State social worker who had previously worked with Mr. Baptiste's
family, testified as follows regarding Mr. Baptiste's relationship with his
younger sister, Samantha:
am a social worker. I am the
Director of the Sapodilla Children’s Home.
I am attached to the Ministry of Social Services St. George’s as a
Child Welfare Officer. I live at
Westerhall, St. David. The
Sapodilla Home is situated at Westerhall, St. David.
know the witness Samantha Baptiste. At
present she lives at the Sapodilla Children’s Home.
She is now 11 years old. I
first became acquainted with Samantha Baptiste in 1989.
She was 5 years old at the time. She
was living with her mother in St. David’s at that time.
I had occasion to visit the mother’s home and Samantha at that time.
I removed Samantha from her mother’s home for medical attention.
I took her to Dr. Noah and to the General Hospital. She spent 10 days at the General Hospital.
I then took her to the Sapodilla Home at that time. After 3 years her
mother Annie Baptiste requested that she come home.
I then released Samantha Baptiste from the Sapodilla home.
The same year of her release, 1992 I then asked that Samantha be sent
back to the Sapodilla Home because I had observed upon follow up visits that
Samantha was being kept away from school to look after her younger sisters and
brothers. I took her to the
Sapodilla Home for approximately 11 months. Samantha left the Sapodialla Home
again at the request of her mother Annie Baptiste and went back home.
December 1992 I received a report concerning Samantha.
I dealt with the case. Following
this report Samantha’s natural father was charged.
He was then the boyfriend of Annie Baptiste. I then removed Samantha once again to the Sapodilla Home.
This was for the third time. Annie
Baptiste had 4 other children by her boyfriend.
In my capacity as Social Worker I
had to deal with 3 of Annie Baptiste’s other children.
I had to take the 3 other children away from the care of Annie Baptiste.
Following the report of 1992 and Samantha’s being taken into the
Sapodialla Home she was again send back home some time in 1993.
When her father was sent to prison in 1993, Samantha was sent back home.
When her mother died in 1993, Samantha was then living at her mother’s
have been dealing with the Baptiste family since 1989.
I have met the accused about 6 times.
I first met him in the yard where he was living.
I also saw him visiting Samantha and his other brothers and sisters who
were then living at the Sapodilla Home. The
accused assisted financially in the support of the children at the Sapodilla
Home. Sometimes he would ask for
Samantha’s book list and assist in getting her books and her medication.
Baptiste had about 9 children in all. As
far as I know no other child of Annie Baptiste besides the accused ever visited
her children in the Sapodilla Home or make any contribution towards their up
accused was of a quiet disposition. He was very sympathetic about Samantha. I never noticed any friction between the accused and his
mother. Samantha now lives at the
Sapodilla Home. I saw the accused
at the prison during my visit to the prison last year and earlier this year.
I spoke with the accused on those visits.
He continued to ask how Samantha was doing.
Two other Baptiste children besides Samantha are still at the Sapodilla
Home. The accused was a bus conductor. The
children of the accused are in Grenville. I
visited them to see the condition in which they lived.
Mrs. Findlay's testimony therefore indicated that Mr. Baptiste was
of good character, and was a caring and nurturing brother to his siblings. He
took an interest in their well being and also provided financial support for the
members of his family. Mrs.
Findlay’s testimony also suggested that due to Mr. Baptiste’s character,
disposition and concern for his family members, it was likely that he would
intervene to prevent his mother from inflicting harm on his younger brother. In
the Commission's view, these factors pertaining to Mr. Baptiste's character are
also pertinent in determining whether the death penalty is an appropriate
punishment in the circumstances of Mr. Baptiste's offense.
As the foregoing analysis indicates, however, the law in Grenada
does not permit mitigating circumstances of this nature to be considered by a
court in sentencing an individual to death. The Commission recognizes that, had
the court in this case been provided with the discretion under law to consider
factors of this nature in determining an appropriate sentence, it may well have
still imposed the death penalty. The Commission cannot, and indeed should not,
speculate as to what the outcome may have been. This determination properly
falls to the domestic court. What is crucial to the Commission's determination
that Mr. Baptiste's death sentence contravenes the Convention, however, is the
fact that Mr. Baptiste was not provided with an opportunity to present these and
other mitigating factors in the context of sentencing, nor was the Court
permitted to consider evidence of this nature in determining whether the death
penalty was an appropriate punishment in the circumstances of Mr. Baptiste's
Advisory Committee on the Prerogative of Mercy
The Commission does not consider that the State’s Advisory
Committee on the Prerogative of Mercy, which was established pursuant to
Articles 73 and 74 of Grenada’s Constitution, can provide an adequate
opportunity consistent with the requirements of the Articles 4, 5, and 8 of the
American Convention for the proper implementation of the death penalty through
individualized sentencing. The authority of the Executive in Grenada to exercise
the Prerogative of Mercy is prescribed in Sections 72, 73 and 74 of the
Constitution of Grenada, which provide as follows:
The Governor-General may, in Her Majesty’s name and on Her Majesty’s
grant a pardon, either free or subject to lawful conditions, to any
person convicted of any offence;
grant to any person a respite, either indefinite or for a specified
period, of the execution of any punishment
imposed on that person for any offence;
substitute a less severe form of punishment for any punishment imposed on
a person for any offence; or
remit the whole or any part of any punishment imposed on any person for
any offence or of any penalty or forfeiture otherwise due to the Crown on
account of any offence.”
The powers of the Governor-General under subsection (1) of this section
shall be exercised by him in accordance with the advice of such Minister as may
for the time being be designated by the Governor-General, acting in accordance
with the advice of the Prime Minister.
(1) There shall be an Advisory Committee on the Prerogative of Mercy which shall
consist of –
the Minister for the time being designated under Section 72(2) of this
Constitution who shall be the Chairman;
the Attorney General;
the chief medical officer of the Government of Grenada; and
three other members appointed by the Governor-General, by instrument in
writing under his hand.
A member of the Committee appointed under subsection (1)(d) of this
section shall hold his seat thereon for such period as may be specified in the
instrument by which he was appointed: Provided that his seat shall become vacant
in the case of a person who, at the date of his appointment was a
Minister, if he ceases to be a Minister; or
if the Governor-General by instrument in writing under his hand, so
The Committee may act notwithstanding any vacancy in its
membership or absence of any member and its proceedings shall not to be
invalidated by the presence or participation of any person not entitled to be
present at or to participate in those proceedings.
The Committee may regulate its own procedure.
In the exercise of his functions under this section, the
Governor-General shall act in accordance with the advice of the Prime Minister.
Where any person has been sentenced to death (otherwise than by a court-martial)
for an offence, the Minister for the time being designated under section 72(2)
of this Constitution shall cause a written report of the case from the trial
judge (or, if a report cannot be obtained from the judge, a report on the case
from the Chief Justice), together with such other information derived from the
record of the case or elsewhere as he may require, to be taken into
consideration at a meeting of the Advisory Committee on the Prerogative of
Mercy; and after obtaining the advice of the Committee he shall decide in his
own deliberate judgment whether to advise the Governor-General to exercise any
of his powers under section 72(1) of this Constitution.
The Minister for the time being designated under section 72(2) of this
Constitution may consult with the Advisory Committee on the Prerogative of Mercy
before tendering advice to the Governor-General under section 72(1) of this
Constitution in any case not falling within subsection (1) of this section but
he shall not be obliged to act in accordance with the recommendation of the
The law in Grenada therefore provides for a process by which the
Executive may exercise the authority to grant amnesties, pardons, or
commutations of sentences. The Commission is not, however, aware of any
prescribed criteria that are applied in the exercise of the functions or
discretion of the Advisory Committee, save for the requirement in death penalty
cases that the Minister cause a written report of the case from the trial judge,
and possibly other information in the Minister's discretion, to be taken into
consideration at the meeting of the Advisory Committee. Nor is the Commission
aware of any right on the part of an offender to apply to the Advisory
Committee, to be informed of the time when the Committee will meet to discuss
the offender's case, to make oral or written submissions to the Privy Council or
to present, receive or challenge evidence considered by the Privy Council. The
submissions of the petitioners confirm that the exercise of the power of pardon
in Grenada involves an act of mercy that is not the subject of legal rights and
therefore is not subject to judicial review.
This process is not consistent with the standards prescribed under
Articles 4, 5 and 8 of the Convention, that are applicable to the imposition of
mandatory death sentences. As outlined previously, these standards 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 Grenada clearly does not satisfy these
standards, and therefore cannot serve as a substitute for individualized
sentencing in death penalty prosecutions.
Moreover, based upon the information before it, the Commission
finds that the procedure for granting mercy in Grenada does not guarantee
condemned prisoners with an effective or adequate opportunity to participate in
the mercy process, and therefore does not properly ensure the victims' right
under Article 4(6) of the Convention to apply for amnesty, pardon or commutation
In the Commission's view, the right to apply for amnesty, pardon
or commutation of sentence under Article 4(6) of the Convention, when read
together with the State's obligations under Article 1(1) of the Convention, must
be read to encompass certain minimum procedural protections for condemned
prisoners, if the right is to be effectively respected and enjoyed. These
protections include the right on the part of condemned prisoners to apply 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 execution. It
also entails the right not to have capital punishment imposed while such a
petition is pending decision by the competent authority. In order to provide
condemned prisons with an effective opportunity to exercise this right, a
procedure should be prescribed and made available by the State through which
prisoners may file an application for amnesty, pardon or commutation of
sentence, and submit representations in support of his or her application. In
the absence of minimal protections and procedures of this nature, Article 4(6)
of the American Convention is rendered meaningless, a right without a remedy.
Such an interpretation cannot be sustained in light of the object and purpose of
the American Convention.
In this respect, 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," and the corresponding Article 22(7) of the
Convention, which provides for the right to "seek and be granted asylum in
a foreign territory, in accordance with the legislation of the state and
international conventions, in the event he is being pursued for political
offenses or related common crimes."
The Commission has interpreted the former provision, 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.
Other internationally-articulated requirements governing the right to seek
asylum reflect similar minimum standards, namely the right of an individual to
apply to appropriate authorities for asylum, to make representations in support
of their application, and to receive a decision.
Consistent with the interpretation of the right to seek asylum by
the Commission and other international authorities, the Commission finds that Article 4(6) of the Convention must be interpreted to
encompass certain minimum procedural guarantees for condemned prisoners, in
order for the right to be effectively respected and enjoyed. The Commission
notes in this regard 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.
The information before the Commission indicates that the process
in Grenada for granting amnesty, pardon or commutation of sentence does not
guarantee Mr. Baptiste any procedural protections. By its terms, Section 74 of
Grenada’s Constitution does not provide condemned prisoners with any role in
the mercy process.
The petitioners have claimed
that Mr. Baptiste has no right to make submissions to the Advisory Committee.
Whether and to what extent prisoners may apply for amnesty, pardon or
commutation of sentence remains entirely at the discretion of the Advisory
Committee, and no procedure or mechanism is provided for that specifies the
manner in which prisoners may file an application for amnesty, pardon or
commutation of sentence, submit representations in support of his or her
application, or receive a decision. Consequently, the Commission finds that the
State has failed to respect the right of Mr. Baptiste under Article 4(6) of the
American Convention to apply for amnesty, pardon or commutation of sentence.
Based upon the foregoing facts and
the interpretive principles outlined above, the Commission finds that by
imposing a mandatory death sentence on Mr. Baptiste, the State violated his
rights pursuant to Articles 4(1), 5(1), 5(2), and 8(1) of the Convention.
More particularly, the Commission concludes that the trial judge imposed
the mandatory death penalty on Mr. Baptiste, in the absence of any guided
discretion to consider his personal characteristics and the particular
circumstances of his offense to determine whether death was an appropriate
punishment which violated his rights as established by Articles 4(1), 5(1),
5(2), and 8(1) of the American Convention. Mr. Baptiste was also 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 him based upon the category of crime
for which he was convicted and without any principled distinction or
rationalization based upon the particular circumstances of his personality or
his crime. Moreover, the propriety of the sentence imposed was not susceptible
to any effective form of judicial review, and his execution is now imminent, his
conviction for murder having been upheld on appeal by the Appellate Court in
Grenada. The Commission therefore concludes that the State has violated Mr.
Baptiste’ rights under Article 4(1) of the Convention not to be arbitrarily
deprived of his life, and therefore, his mandatory death sentence is unlawful.
The Commission further concludes that the State, by sentencing Mr.
Baptiste to a mandatory penalty of death absent consideration of his individual
circumstances, has failed to respect his right to physical, mental and moral
integrity contrary to Article 5(1) of the American Convention, and has subjected
him to cruel, inhuman, or degrading punishment or treatment in violation of
Article 5(2). The State sentenced Mr. Baptiste to death solely because he was
convicted of a predetermined category of crime. Accordingly, the process to
which he has been subjected, would deprive him of his most fundamental right,
his right to life, without consideration of his personal circumstances and his
offense. Treating Mr. Baptiste in this manner abrogates the fundamental respect
for humanity that underlies the rights protected under the Convention, and
Articles 5(1) and 5(2) in particular.
The Commission also concludes that the State has violated Mr.
Baptiste’s right pursuant to Article 4(6) of the American Convention by
failing to guarantee him an effective right to apply for amnesty, pardon or
commutation of sentence, to make representations, in person or by counsel, to
the Advisory Committee on the Prerogative of Mercy, and to receive a decision
from the Advisory Committee within a reasonable time prior to his execution.
Finally, the Commission concludes that the State has violated Mr.
Baptiste’s right to a hearing with due guarantees by a competent, independent
and impartial tribunal. as established under
Article 8 of the American Convention. Mr. Baptiste was not provided with an
opportunity to make representations and present evidence to the trial judge as
to whether his crime warranted the ultimate penalty of death, and was therefore
denied the right to fully answer and defend the criminal accusation against him.
It follows from the Commission’s findings that, should the State
execute Mr. Baptiste pursuant to his mandatory death sentence, this would
constitute further egregious and irreparable violations of Articles 4 and 5 of
Given its foregoing conclusions as to the legality of Mr. Baptiste's
death sentence under Articles 4, 5 and
8 of the Convention, the Commission does not consider it necessary to determine
whether sentencing Mr. Baptiste to a mandatory death penalty violated his rights
to equal protection of the law contrary to Article 24 of the Convention.
Articles 4 and 5 – conditions of detention
The petitioners allege that the State has violated Mr.
Baptiste’s right to have his physical, mental and moral integrity respected,
as well as his right not to be subjected to cruel, unusual or degrading
punishment or treatment pursuant to Article 5(1) and 5(2) of the American
Convention, because of the conditions of detention to which he has been
subjected. They argue further that these conditions render his execution
unlawful under Article 4 of the Convention.
In support of their allegations, the petitioners have provided the
Commission with an affidavit sworn by Mr. Baptiste on April 11th
1997, in which he describes his conditions of detention since his arrest and
subsequent conviction for murder on July 11th, 1995, as follows:
cell is approximately 9 feet by 6 feet (9ft.
x 6ft.) and I spend approximately 23 hours a day in my cell alone.
I am provided with a bed and mattress to sleep on, but there is no other
furniture in my cell. I am provided
with a bucket which I use as a toilet. I
am permitted to slop out the contents of the bucket once a day. Once it has been
used, I am forced to endure the smell and unhygienic conditions until I am able
to empty it.
lighting in my cell is insufficient. The
cell has no windows and no natural lighting, and accordingly has no ventilation.
Any lighting in my cell is provided by a single bulb situated in the
corridor in front of my cell.
am provided with three meals a day. Sometimes
food is brought to me in my cell where I am made to eat alone.
The food is generally of a poor quality. I am provided with drinking water.
am allowed one hour of exercise per day. There are no exercise facilities and my
hour is usually spent standing in the yard.
am allowed one visitor per month for a period of 15 minutes.
I am allowed to write and receive one letter a month.
a prisoner on death row, I am not permitted access to the prison services.
I am not allowed to use the prison library, nor am I allowed access to
the chaplain and religious services.
receive inadequate medical care. Visits
by the doctor are not regular and it is not always clear whether I will be able
to see a doctor when necessary.
are no adequate complaints mechanism or procedure for dealing with any
complaints I may have.
As described in Part III of this
Report, the petitioners also rely upon general sources of information
regarding prison conditions in Grenada and other Caribbean countries. These
include reports prepared in 1990 and 1991 by the non-governmental organization
“Caribbean Rights.” While somewhat outdated, the
Reports tend to support Mr. Baptiste's allegations in respect of the conditions
in which he has been incarcerated since his arrest.
The Commission considers that the
petitioners' allegations should be evaluated in light of minimum standards
articulated by international authorities for the treatment of prisoners,
including those prescribed by the United Nations. More particularly, Rules
10, 11, 12, 15, 21, 24, 26, 40, and 41 of the United Nations Standard Minimum
Rules for the Treatment of Prisoners
(UN Minimum Rules) provide for minimum basic standards in respect of
accommodation, hygiene, exercise, medical
treatment, religious services and library facilities for prisoners, as follows:
10. All accommodation provided for the use of prisoners and in particular
all sleeping accommodation shall meet all requirements of health, due regard
being paid to climatic 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 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
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 cleanliness.
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 weather permits.
(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.
24. The medical officer shall see and examine every prisoner as soon as
possible after his admission and thereafter as necessary, with a view
particularly to the discovery of physical and mental illness and the taking of
all necessary measures; the segregation of prisoners suspected of infectious or
contagious conditions; the noting of physical or mental defects which might
hamper rehabilitation, and the determination of the physical capacity of every
prisoner for work.
26. (1) The medical officer shall
have the care of the physical and mental health of the prisoners and should see
daily all sick prisoners, all who complain of illness, and any prisoner to whom
his attention is specially directed.
(2) The medical officer shall report to the director whenever he
considers that a prisoner’s physical or mental health has been or will be
injuriously affected by continued imprisonment or by any condition of
institution shall have a library for the use of all categories of prisoners,
adequately stocked with both recreational and instructional books, and prisoners
shall be encouraged to make full use of it.
(1) If the institution contains a
sufficient number of prisoners of the same religion, a qualified representative
of that religion shall be appointed or approved.
If the number of prisoners justifies it and conditions permit, the
arrangement should be on a full-time basis.
(2) A qualified representative
appointed or approved under paragraph (1) shall be allowed to hold regular
services and to pay pastoral visits in private to prisoners of his religion at
to a qualified representative of any religion shall not be refused to any
prisoner. On the other hand, if any
prisoner should object to a visit of any religious representative, his attitude
shall be fully respected.
far as practicable, every prisoner shall be allowed to satisfy the needs of his
religious life by attending the services provided in the institution and having
in his possession the books of religious observance and instruction of his
It is evident, based upon the information provided by the
petitioners that the conditions of detention to which Mr. Baptiste has been
subjected fail to meet several of these minimum standards of treatment of
prisoners, in such areas as hygiene, exercise and medical care. For example, Mr.
Baptiste claims that his cell has no windows, no natural lighting, and no
ventilation, and that the lighting in his cell is insufficient. He claims that
he is provided with a bucket to use as a toilet, and that he is only entitled to
empty the bucket once a day and is therefore forced to ensure unpleasant smells
and unhygienic conditions once the bucket is used. Mr. Baptiste also claims that
he is not allowed to use the prison library, nor is he allowed access to the
chaplain or religious services. Further, Mr. Baptiste states that he receives
inadequate medical care, as visits from the doctor are not regular and it is not
clear whether he will be able to see a doctor when necessary. Finally, Mr.
Baptiste contends that there are no adequate mechanisms or procedures in the
prison for dealing with his complaints.
The State has failed to provide any
information in respect of prison conditions in Grenada, generally or as they
pertain to Mr. Baptiste. Based upon the information on the record before it, the
Commission concludes that the State has failed to treat Mr. Baptiste with
respect for his physical, mental or moral integrity, and has therefore violated
Article 5(1) of the Convention.
Articles 8 and 25, – unavailability of legal aid for Constitutional
The petitioners argue that legal aid is not effectively available
for Constitutional Motions before the courts in Grenada, and that this
constitutes a violation of the right to a fair trial under Article 8 of the
Convention. Although the
petitioners have not specifically referred to Article 25 of the American
Convention, the right to an effective remedy, the Commission considers that
their allegations relating to the denial of an effective remedy at law also
encompass Article 25 of the Convention. Therefore, the Commission has also
analyzed their claims relating to the unavailability of legal aid for
Constitutional Motions under Article 25 of the Convention, in conformity with
Article 32(c) of the Commission’s Regulations.
The petitioners contend that the failure of the State to provide
legal aid denies Mr. Baptiste access to the Court in fact as well as in law. The
petitioners argue that to bring a Constitutional Motion before the domestic
courts often involve sophisticated and complex questions of law that require the
assistance of Counsel. In addition, the petitioners claim that Mr. Baptiste is
indigent, and that legal aid is effectively not available to him to pursue a
Constitutional Motion in the courts in Grenada. They also contend that there is
a dearth of Grenadian lawyers who are prepared to represent Mr. Baptiste pro
Based upon the material before it, the Commission is satisfied
that Constitutional Motions dealing with legal issues of the nature raised by
Mr. Baptiste in his petition, such as the right to due process and the adequacy
of his prison conditions, are procedurally and substantively complex and cannot
be effectively raised or presented by a prisoner in the absence of legal
representation. The Commission also finds that the State does not provide legal
aid to individuals in Grenada to bring Constitutional Motions, and that Mr.
Baptiste is indigent and is therefore not otherwise able to secure legal
representation to bring a Constitutional Motion.
The Commission considers that in the circumstances of Mr. Baptiste’s case, the State's obligations regarding
legal assistance for Constitutional Motions flow from both Article 8 and Article
25 of the Convention. In particular, the determination of rights through a
Constitutional Motion in the High Court must conform with the requirements of a
fair hearing in accordance with Article 8(1) of the Convention. In the
circumstances of Mr. Baptiste’s case, the High Court of Grenada would be
called upon to determine whether the victim’s conviction in a criminal trial
violated rights under the Grenada’s Constitution. In such cases, the
application of a requirement of a fair hearing in the High Court should be
consistent with the principles in Article 8(2) of the Convention.
Accordingly, when a convicted person seeking Constitutional review of the
irregularities in a criminal trial lacks the means to retain legal assistance to
pursue a Constitutional Motion and where the interests of justice so require,
legal assistance should be provided by the State.
Due to the unavailability of legal aid, Mr. Baptiste has
effectively been denied the opportunity to challenge the circumstances of his
conviction under Grenada’s Constitution in a fair hearing. This in turn
constitutes a violation of his right under Article 8(1) of the American
Moreover, Article 25 of the Convention provides individuals with
the right to simple and prompt recourse to a competent court or tribunal for
protection against acts that violate his fundamental rights recognized by the
Constitution or laws of the state concerned or by the Convention. The Commission
has stated that the right to recourse under section 25 when read together with
the obligation in Article 1(1) and the provisions of Article 8(1), “must be
understood as the right of every individual to go to a tribunal when any of his
rights have been violated (whether a right protected by the Convention, the
Constitution, or the domestic laws of the State concerned), to obtain a judicial
investigation conducted by a competent, impartial and independent tribunal that
will establish whether or not a violation has taken place and will set, when
appropriate, adequate compensation.”
In addition, the Inter-American Court has held that if legal services are
required either as a matter of law or fact in order for a right guaranteed by
the Convention to be recognized and a person is unable to obtain such services
because of his indigence, then that person is exempted from the requirement
under the Convention to exhaust domestic remedies.
While the Court rendered this finding in the context of the admissibility
provisions of the Convention, the Commission considers that the Court's comments
are also illuminating in the context of Article 25 of the Convention in the
circumstances of the present case.
By failing to make legal aid available to Mr. Baptiste to pursue a
Constitutional Motion in relation to his criminal proceedings, the State has
effectively barred recourse for Mr. Baptiste to a competent court or tribunal in
Grenada for protection against acts that potentially violate his fundamental
rights under Grenada’s Constitution and under the American Convention.
Moreover, in capital cases, where Constitutional Motions relate to the
procedures and conditions through which the death penalty has been imposed and
therefore relate directly to the right to life and to humane treatment of a
defendant, it is the Commission's view that the effective protection of those
rights cannot properly be left to the random prospect as to whether an attorney
may be willing or available to represent the defendant without charge. The right
to judicial protection of these most fundamental rights must be guaranteed
through the effective provision of legal aid for Constitutional Motions.
The State cannot be said to have afforded such protection to Mr. Baptiste.
As a consequence, the State has failed to fulfil its obligations under Article
25 of the American Convention in respect of Mr. Baptiste.
Accordingly, the Commission concludes that the State has failed to
respect Mr. Baptiste's rights under Article 8(1)of the Convention by denying him
an opportunity to challenge the circumstances of his conviction under the
Constitution of Grenada in a fair hearing. The Commission also concludes that
the State has failed to provide Mr. Baptiste with simple and prompt recourse to
a competent court or tribunal for protection against acts that violate his
fundamental rights recognized by the Constitution or laws of Grenada or by the
Convention, and has therefore violated the rights of Mr. Baptiste to judicial
protection under Article 25 of the American Convention.
In light of the Commission’s findings that the State has committed
several serious violations of Mr. Baptiste’s fundamental human rights under
Articles 4, 5, 8, and 25 of the Convention, the Commission hereby issues
Precautionary Measures pursuant to Article 29(2) of its Regulations. The
Commission hereby requests that the State take all the appropriate measures to
stay Mr. Baptiste’s execution to avoid irreparable harm to him, and ensure
that Mr. Baptiste is not arbitrarily deprived of his life.
PROCEEDINGS SUBSEQUENT TO REPORT Nº 126/99
On September 27, 1999, the IACHR, at its 104th Period
of Sessions, approved Report Nº 126/99 in this case on the basis of Article 50
of the Convention, and forwarded it to the State with its Conclusions and
Recommendations, on November 30, 1999. In its Recommendations to the State, the
Commission requested that the State inform it within two months of
the measures that it had taken to comply with the Commission’s
Recommendations. So that the Commission could have all the necessary information
to decide whether the measures taken are adequate and whether to publish its
Report pursuant to Article 51 of the American Convention. The period of two
months has elapsed and the
Commission has not received a response from the State of Grenada in respect of
its Recommendations in this case.
the Commission, on the basis of the information presented, and the due analysis
under the American Convention, reiterates its conclusions that the State of
Grenada is liable as follows:
The State is responsible for violating Mr. Baptiste’s rights under
Articles 4(1), 5(1), 5(2) and 8(1), in conjunction with a violation of Article
1(1) of the American Convention, by sentencing Mr. Baptiste to a mandatory death
The State is responsible for violating Mr. Baptiste’s rights
under Article 4(6) of the Convention, in conjunction with a violation of Article
1(1) of the American Convention, by failing to provide Mr. Baptiste with an
effective right to apply for amnesty, pardon or commutation of sentence.
The State is responsible for violating Mr. Baptiste’s rights
under Article 5(1) of the American Convention,
in conjunction with a violation of Article 1(1) of the American
Convention, because of Mr. Baptiste’s conditions of detention.
The State is responsible for violating
Mr. Baptiste’s rights under Articles 8 and 25 of the Convention, in
conjunction with a violation of Article 1(1) of the Convention, by failing to
make legal aid available to him to pursue a Constitutional Motion.
on the analysis and the conclusions in this Report,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS RECOMMENDS THAT THE STATE OF GRENADA:
Grant Mr. Baptiste an effective remedy which includes commutation of
sentence and compensation.
Adopt such legislative or other measures as may be necessary to ensure
that the death penalty is imposed in compliance with the rights and freedoms
guaranteed under the American Convention, including and in particular Articles
4,5, and 8.
Adopt such legislative or
other measures as may be necessary to ensure that the right under Article 4(6)
of the American Convention to apply for amnesty, pardon or commutation of
sentence is given effect in Grenada.
Adopt such legislative or
other measures as may be necessary to ensure that the right to a fair hearing
under Article 8(1) of the American Convention and the right to judicial
protection under Article 25 of the American Convention are given effect in
Grenada in relation to recourse to Constitutional Motions.
Pursuant to Article 29(2) of the Commission’s Regulations take all the
appropriate measures to stay the execution of Mr. Baptiste to avoid irreparable
harm to him, and ensure that he is not arbitrarily deprived of his life.
On March 1, 2000, in conformity with Article 51(1) and 51 (2) of the
American Convention, the Commission sent Report Nº 6/00, which was adopted in
this case on February 24, 2000 to the State of Grenada,
and granted the State a period of one month for it to adopt the necessary
measures to comply with the foregoing recommendations and to resolve the
situation under analysis. The period of one month has elapsed and the Commission
has not received a response from the State of Grenada in respect of its
Recommendations in this case.
FINAL ANALYSIS AND CONCLUSIONS
For these reasons, the Commission
decides that the State has not taken all of the appropriate measures to comply
with the recommendations set forth in this report.
the foregoing and pursuant to Article 51(3) of the American Convention and
Article 48 of the Commission’s Regulations, the Commission decides to
reiterate the conclusions and recommendations contained in Report Nº 4/00. The
Commission further decides to make public this report and include it in the
Commission’s Annual Report to the General Assembly of the OAS.
signed by the Inter-American Commission on Human Rights in the city of
Washington, D.C., on the 13th day of the month of April, 2000 (Signed): Hélio
Bicudo, Chairman; Claudio Grossman,
First Vice-Chairman; Juan Méndez, Second Vice-Chairman; Commissioners: Marta
Altolaguirre, Robert K. Goldman, Peter Laurie and Julio Prado Vallejo.
The Preamble to the Convention recognizes that “the essential rights of
man are not derived from one’s being a national of a certain state, but
are based upon the attributes of the human personality.”
The Commission refers in this regard to the interpretative approach
advocated by the European Court of Human Rights, that its governing
Convention is “a living instrument which…must be interpreted in light of
present-day conditions.” See Eur. Court H.R., Tyrer v. United
Kingdom (1978) 3 E.H.R.R. 1 at para. 31.
Advisory Opinion on the Death Penalty, supra,
at para. 57.
U.N.H.R.C., Lubuto v. Zambia, Communication Nº 390/1990, U.N. Doc.
CCPR/C/55/D/390/1990/Rev. 1, para. 7.2.
ICCPR, Article 6, supra.
Ndiaye Report, supra, para. 377. With respect to international
sentencing standards more generally, the International Criminal Tribunal for
the former Yugoslavia provides one of the few modern examples of an
international tribunal adjudicating serious violations of international
humanitarian law. While the penalty imposed by the Tribunal is limited to
imprisonment, the Tribunal’s governing statute specifically provides
that’ “[i]n imposing the sentences, the Trial Chambers should take into
account such matters as the gravity of the offence and the individual
circumstances of the convicted person.” Statute for the International
Criminal Tribunal for the former Yugoslavia, Annex to the Report of the
Secretary-General Pursuant to Paragraph 2 of Security Council Resolution
808, U.N., Doc. S/25704/Add.1/Corr.1 (1993), Art. 24. See similarly Statute
for the International Criminal Tribunal for Rwanda, Annex to Security
Council Resolution 955, U.N. SCOR, 49th Sess., 3453 mtg., U.N.
Doc. S/RES/955 (1994), Art. 23.
Woodson v. North Carolina 49 L Ed 2d. 944.
The Constitution of the United States, Amendment VIII (1791)
(providing “[e]xcessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.”).
Id. Amendment XIV, Section I (providing “[a]ll persons born
or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they
reside. No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property, without due process
of law; nor deny to any person within its jurisdiction the equal protection
of the laws.”).
Id. at 960. In its decision
in the case Furman v. Georgia, 408 U.S. 238, the Supreme Court
declared the vesting of standardless sentencing discretion in the jury in
imposing capital sentences as contrary to the Eighth and Fourteenth
Amendments. In rejecting North Carolina’s contention in Woodson
that the inadequacies identified in Furman were remedied by
withdrawing all sentencing discretion from juries in capital cases, the
Court suggested that the mandatory sentencing scheme was no more rational,
as the statute provided “no standards to guide the jury in its inevitable
exercise of the power to determine which first-degree murderers shall live
and which shall die,” and provided no way for the judiciary to “check
arbitrary and capricious exercise of that power through a review of death
See 408 US, at 286-291, 33 L Ed 2d 346, 92 S Ct 2726 (Brennan J.
concurring); id., at 306, 33 L Ed 2d 346, 92 S Ct 2726 (Stewart, J.,
Pennsylvania ex rel. Sullivan v. Ashe, 302 US 51, 55, 82 L
Ed43, 58 S Ct 59 (1937).
See Williams v. New York, 337 US, at 247-249, 93 L Ed 1337, 69
S Ct 1079; Furman v. Georgia, 408 US, at 402-3, 33 L Ed 2d 346, 92 S
Ct 2726 (Burger C.J., dissenting).
See Trop v. Dulles, 356 US, at 100, 2 L Ed 2d 630, 78 S Ct 590
Id. at 961. See also Roberts (Stanislaus) v. Louisiana, 428
U.S., 325, 333, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).
The State v. Makwanyane and McHunu, Judgment, Case Nº CCT/3/94 (6
June 1995) (Constitutional Court of the Republic of South Africa).
Section 277 of the Criminal Procedure
Act Nº 51 provided:
The sentence of death may be passed by a superior court only and only
in the case of a conviction for:
treason committed when the Republic is in a state of war;
robbery or attempted robbery, if the court finds aggravating
circumstances to have been present;
The sentence of death shall be imposed
after the presiding judge conjointly with the assessors (if any),
subject to the provisions of s. 145(4)(a), or, in the case of a trial by a
special superior court, that court, with due regard to any evidence and
argument on sentence in terms of section 274, has made a finding on the
presence or absence of any mitigating or aggravating factors; and
if the presiding judge or court, as the case may be, with due regard
to that finding, is satisfied that the sentence of death is the proper
Id. pp. 32-36. The
Court went on to conclude that additional factors such as discrimination and
the “imperfection” inherent in criminal trials may also lead to
arbitrary results in the imposition of the death penalty, and determined
further that such arbitrary results could not be appropriately remedied
through strict due process, as had been endeavored in the United States. Id.
Criminal Procedure Act Nº 51 of 1977, section 322(2A) (as
amended by section 13 of Act Nº 107 of 1990).
S. v Nkwanyana and Others 1990 (4) SA 735 (A) at 743E-745A.
S v. Masina and Others 1990 (4) SA 709 (A) at 718G-H.
S v. J 1989 (1) SA 669 (A) at 682G. “Generally speaking,
however, retribution has tended to yield ground to the aspects of correction
and prevention, and it is deterrence (including prevention) which has been
described as the ‘essential’, ‘all important’, ‘paramount’, and
‘universally admitted’ object of punishment.” Id. at 682I-J (cited
with approval in S v P 1991 (1) SA 517 (A) at 523G-H. CF. R. v
Swanepoel 1945 AD 444 at 453-455.
Per Holmes JA in S v Letsolo 1970 (3) SA 476 (A) at 477B (cited
with approval by Nicholas AJA in S v Dlamini 1992 (1) SA 18 (A) at
31I-32A in the context of the approach to sentencing under section
322(2A)(b) of the Criminal Procedure Act Nº 51 of 1977).
S v Senonohi 1990 (4) SA 727 (A) at 734F-G; S v Nkwanyana,
supra at 749A-D.
Id. at 35-36.
Bachan Singh v. State of Punjab, (1980) 2 S.C.C. 475.
Id. at 509-510.
Id. at 516.
Id. at 515.
Id. at 534.
Id. Trial Transcript p. 1, (10).
Unsworn Statement of Mr. Baptiste from the dock, 10th July, 1995,
9:10 a.m. pp. 72- 73, (30) Trial Transcript, Case Nº 181 of 1994, Regina
and Rudolph Baptiste.
Id., pp. 73-74 (20).
Id., p. 74,
Id., pp. 74-75.
Id., p. 75.
See Reckley v. Minister of Public Safety (Nº 2) 
2 W.L.R. 281 at 289-291 (finding that the exercise of the Prerogative of
Mercy by the Minister of Public Safety in The Bahamas involved an act of
mercy that was not the subject of legal rights and was therefore not
judicable); de Freitas v. Benny  2 A.C. 239.
See similarly Universal Declaration on Human Rights, Article 14
(providing for the right of every individual to "seek and to enjoy in
other countries asylum from persecution.").
I/A. Comm. H.R., Haitian Center for Human Rights and others (United
States), Case Nº 10.675 (13 Match 1997), Annual Report 1996, para. 155.
See e.g. Office of the
United Nations High Commissioner for Refugees, Handbook on Procedures and
Criteria for Determining Refugee Status under the 1951 Convention and the
1967 Protocol relating to the Status of Refugees, paras. 189-219
(prescribing basic requirements for the procedures for determining refugee
status, including the right
of an applicant to be given the necessary facilities for submitting
his case to the authorities concerned, and that the applicant be permitted
to remain in the country pending a decision on his initial request for
refugee status); Council of Europe, Resolution on minimum guarantees for
asylum procedures, Brussels, 21 June 1995, Articles 10, 12, 14, 15, 23
(prescribing common procedural guarantees to be provided by Member
States of the European Union in processing asylum application, including the
right of an asylum-seeker, at the border or otherwise, to have an
opportunity to lodge his asylum application as early as possible, to remain
in the territory of the state in which his application has been lodged or is
being examined as long as the application has not been decided upon, to be
given the opportunity of a personal interview with an official qualified
under national law before a final decision is taken on the asylum
application, and to have the decision on the asylum application communicated
to the asylum-seeker in writing.).
In the State of Ohio, for example, clemency review has been delegated in
large part to the Ohio Adult Parole Authority (OAPA). In the case of an
inmate under sentence of death, the OAPA must conduct a clemency hearing
within 45 days of the scheduled date of execution. Prior to the hearing, the
inmate may request an interview with one or more parole board members. The
OAPA holds a hearing, completes its clemency review, and makes a
recommendation to the Governor. If additional information later becomes
available, the OAPA may in its discretion hold another hearing or alter its
recommendation. 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.)
(finding that Ohio's clemency procedures do not violate the U.S.
Constitution's Due Process Clause).
United 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).
Article 32 of the Commission’s Regulations provides that: “Petitions
addressed to the Commission shall include (c) an indication of the state in
question which the petitioner considers responsible, by commission or
omission, for the violation of a human right recognized in the American
Convention on Human Rights in the case of States Parties thereto, even if no
specific reference is made to the article alleged to have been violated.”
See I/A Court H.R., Exceptions to the Exhaustion of Domestic
Remedies (Arts. 46(1), 46(2)(a) and 46(2)(b) of the American Convention on
Human Rights), Advisory Opinion OC-11/90 of August 10, 1990, Annual
Report 1991, para. 28 (interpreting Article 8(1) of the Convention as
cases which concern the determination of a person's rights and obligations
of a civil, labor, fiscal or any other nature, Article 8 does not specify
any minimum guarantees similar to those provided in Article 8(2) for
criminal proceedings. It does, however, provide for due guarantees;
consequently, the individual here also has the right to the fair hearing
provided for in criminal cases.
also I/A Comm. H.R., Loren Laroye Riebe Star and others
v. Mexico, Report Nº 49/99 (13 April 1999), Annual
Report 1998, para. 70 (interpreting Article 8(1) in the context of
administrative proceedings leading to the expulsion of foreigners as
requiring certain minimal procedural guarantees, including the opportunity
to be assisted by counsel or other representative, sufficient time to
consider and refute the charges against them and to seek and adduce
See similarly Currie v. Jamaica , Communication Nº
377/1989, U.N.Doc. Nº CCPR/C/50/D/377/1989 (1994), para. 13.4 (concluding
that where a convicted person seeking Constitutional review of
irregularities in a criminal trial has not sufficient means to meet the
costs of legal assistance in order to pursue his Constitutional remedy and
where the interests of justice so require, Article 14(1) of the
International Covenant on Civil and Political Rights required the State to
provide legal assistance).
See Peru Case,
supra, pp. 190-191.
I/A Court H.R., Exceptions to the Exhaustion of Domestic Remedies,
supra, para. 30.
See similarly U.N.H.R.C., William Collins v. Jamaica,
Communication Nº 240/1987, U.N. Doc. Nº CCPR/C/43/D/240/1987 (1991), para.
7.6 (finding that in capital punishment cases, legal aid should not only be
made available, it should enable counsel to prepare his client's defense in
circumstances that can ensure justice).