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REPORT
Nº 7/03 PETITION
729/01 WHITLEY
MYRIE JAMAICA February
20, 2003 I.
SUMMARY 1. On October 22,
2001, the Inter-American Commission on Human Rights (the
“Commission”) received a petition from Ashurst, Morris, Crisp, a
firm of Solicitors in London, United Kingdom (the “Petitioners”)
against the Government of Jamaica (the “State” or “Jamaica”). The petition was presented on behalf of Mr. Whitley Myrie,
who is serving a life sentence in St. Catherine’s District Prison,
Jamaica. The petition
stated that on October 2, 1991, Mr. Myrie was convicted of capital
murder by the St. James Circuit Court in Kingston, Jamaica and sentenced
to death, and that the Court of Appeal of Jamaica subsequently
classified the murder as non-capital and reduced his sentence from death
to life imprisonment with a minimum term to serve without parole of 15
years. 2. In their
petition, the Petitioners have alleged that the State violated Mr.
Myrie’s rights under Articles 1, 4, 5, 8, 12, 24 and 25 of the
American Convention on Human Rights (the “Convention”) and Articles
I, XVIII, XXV and XXVI of the American Declaration of the Rights and
Duties of Man (the “American Declaration”) because of his conditions
of detention during the course of his criminal proceedings, the failure
of the State to protect against irregularities in Mr. Myrie’s trial,
and the failure to make legal aid effective available to pursue a
Constitutional Motion in the domestic courts in connection with his
criminal proceedings. The
State contends that the petition is inadmissible because Mr. Myrie has
failed to exhaust domestic remedies in accordance with Article 46(1)(a)
of the Convention by way of a Constitutional Motion before the domestic
courts in Jamaica. 3. As set forth in
this Report, having examined the contentions of the parties on the
question of admissibility, and without prejudging the merits of the
matter, the Commission decided to admit the claims in the present
petition with respect to Articles 1, 2, 5, 8, 24 and 25 of the American
Convention, and continue with the analysis of the merits of the case.
II.
PROCEEDINGS BEFORE THE COMMISSION
4.
Following receipt of the Petitioners' complaint, which was
designated as petition 729/2001, the Commission decided to transmit the
pertinent parts of the petition to the Government of Jamaica by means of
a note dated November 12, 2001, with a request for the State’s
observations within a period of two months in accordance with Article
30(3) of the Commission’s Rules of Procedure.
Also by note dated November 12, 2001, the Commission informed the
Petitioners that the pertinent parts of their petition had been
transmitted to the State.
5.
By note dated January 11, 2002 and received by the Commission on
January 15, 2002, Jamaica acknowledged receipt of the Commission’s
November 12, 2001 communication and requested a one-month extension
within which to deliver its observations in the matter, which the
Commission granted in a note to the State dated January 15, 2002.
6.
In a subsequent communication dated February 25, 2002 and
received by the Commission on February 26, 2002, Jamaica delivered its
response to the Petitioners’ petition, which the Commission
transmitted to the Petitioners by note dated February 27, 2002 with a
response requested within 30 days.
7.
By letter dated March 28, 2002 and received by the Commission on
the same date, the Petitioners delivered a reply to the State’s
February 25, 2002 observations on their petition.
The Commission transmitted the pertinent parts of the
Petitioners’ reply to the State by note dated April 2, 2002, with a
request for a response within 30 days.
8.
In a note to the Commission dated April 26, 2002, the State
requested an extension of time within which to deliver its response to
the Petitioners’ March 28, 2002 reply.
By letter dated April 29, 2002, the Commission granted the State
an extension of time of 30 days within which to deliver its
observations.
9.
In a communication dated May 28, 2002 and received by the
Commission on June 10, 2002, the State delivered a response to the
Petitioners’ March 28, 2002 reply, which the Commission transmitted to
the Petitioners for their information by note dated June 17, 2002.
10.
The Petitioners, in a letter dated August 29, 2002, provided the
Commission with observations on the State’s note of May 28, 2002.
In the same communication, the Petitioners requested a hearing
before the Commission during its next period of sessions pursuant to
Articles 59 to 62 of the Commission’s Rules of Procedure.
11.
By notes dated September 16, 2002, the Commission informed the
Petitioners and the State that it had decided to convene a hearing on
the admissibility of the petition, to be held on October 17, 2002 during
the Commission’s 116th regular period of sessions.
In a subsequent communication dated October 2, 2002, the State
requested a postponement of the hearing due to the fact that the
country’s parliamentary elections had been scheduled for October 16,
2002 and that the Solicitor General/Attorney General’s Chamber, as the
legal representative of the Electoral Office before the Electoral Court,
would be fully engaged in these responsibilities during that period.
12.
In a communication dated October 4, 2002 the Commission informed
the State that, while it appreciated the circumstances underlying the
State’s request for a postponement, the Petitioners had informed the
Commission that they had finalized their arrangements for attending the
hearing and would not be able to cancel their plans without incurring
lost expenses, and that in light of this circumstance, as well as the
fact that the Commission’s next regular period of session would not
take place until the spring of 2003, the Commission had decided to
proceed with the hearing on October 1, 2002.
The Commission also informed the State that in order to ensure
that Jamaica had an opportunity to present its views to the Commission
on the issues for the hearing, the government was invited to submit to
the Commission, if possible prior to the October 17, 2002 hearing,
written information as to the admissibility of the complaint, including
information pertaining to the allegations contained in the
Petitioners’ August 29, 2002 written request for a hearing in the
matter.
13.
By note dated October 16, 2002 and received by the Commission on
the same date, the State provided further observations on the
admissibility of the Petitioners’ claims, which the Commission
subsequently provided to the Petitioners at the October 17, 2002 hearing
before the Commission.
14.
The October 17, 2002 hearing proceeded as scheduled, with the
representatives of the Petitioners and an official with the Permanent
Observer Mission of Jamaica to the Organization of American States in
attendance. The Petitioners
provided the Commission with oral and written representations concerning
the admissibility of the complaints in their petition and responded to
questions posed by the Commission Members in attendance at the hearing.
The Commission Members also posed questions to the State of
Jamaica, which the State’s representative undertook to transmit to the
appropriate authorities for a response within a reasonable period of
time following the hearing.
15.
By note dated November 4, 2002 and received by the Commission on
the same date, the State delivered written responses to the questions
posed by the Commission to the State during the October 17, 2002
hearing. The Commission
transmitted the State’s responses to the Petitioners by communication
dated November 8, 2002, with a request for a response within 30 days.
16.
In a letter dated December 19, 2002, the Petitioners delivered
observations on the State’s communication of November 4, 2002, the
pertinent parts of which the Commission transmitted to the State by note
dated January 3, 2003 with a request for observations within 30 days. III. POSITIONS OF THE PARTIES A. Position of the Petitioners 17. The Petitioners
claim that the St. James Circuit Court in Kingston convicted Mr. Myrie
of the capital murder of Dennis Grubb on October 2, 1991 and sentenced
him to death. The Court of
Appeal of Jamaica refused his application for leave respecting his
conviction for murder on January 11, 1993 but classified his offense as
non-capital murder and reduced his sentence from death to life
imprisonment with a minimum term to serve before parole of 15 years.
Subsequently, Mr. Myrie’s application for Special Leave to
Appeal to the Judicial Committee of the Privy Council was dismissed on
April 24, 2001. 18. The Petitioners
further argue that although Mr. Myrie has not pursued a Constitutional
Motion before the courts in Jamaica pursuant to Section 25 of the
Constitution of Jamaica, this is not a remedy that is available to him
within the meaning of Article 46(1)(a) of the American Convention.
In particular, the Petitioners claim that constitutional redress
under Section 25 of the Constitution is effectively denied to Mr. Myrie
due to the high cost and procedural complexity of instituting such a
motion. They also claim that the legal costs involved in seeking
constitutional redress are well beyond Mr. Myrie’s means, that he does
not have the resources to secure private representation for this
purpose, and that legal aid is not provided for such motions.
Citing jurisprudence from this Commission and from the
Inter-American Court of Human Rights, the Petitioners argue that where,
as a matter of fact or law, a victim is denied access to the remedies
under domestic law then the requirement that the victim exhaust domestic
remedies is excused.[1]
19.
In this context, the Petitioners contend that the infrequent
granting of legal aid for Constitutional Motions, combined with Mr.
Myrie’s status as an indigent and the very few pro
bono lawyers in Jamaica, render Mr. Myrie unable to exhaust domestic
remedies.
20.
Also in connection with the exhaustion of domestic remedies
requirement, the Petitioners provided extensive submissions concerning
the State’s reliance on the Public Defender (Interim) Act 1999 of Jamaica (the “Act”).
In particular, the Petitioners dispute the State’s contention
that all constitutional remedies are effectively available to Mr. Myrie
by virtue of this legislation which, according to the State, authorizes
the Public Defender to receive complaints from any person who claims
that his or her constitutional rights have been, are being or are likely
to be infringed as a result of an action by an authority or a member
thereof, to provide them with ready access to professional advice and,
where necessary, legal representation, and to investigate that
complaint. The Petitioners
claim that as a matter of fact and law, the Act does not constitute or
provide an effective remedy. 21. First, the Petitioners argue that as a matter of law, the terms of the Public Defender (Interim) Act 1999 fail to provide access to a remedy in respect of the claims raised before the Commission. According to the Petitioners, Section 13(2)(b)(i) of the Act precludes the Public Defender from investigating Mr. Myrie’s complaints of an unfair trial because it prohibits the Public Defender from investigating “the commencement or conduct of civil or criminal proceedings in any court of law in Jamaica.” The Petitioners state that this is consistent with the common law approach which generally discourages collateral attacks on final decisions in litigation, and indeed dispute the State’s suggestion that a Constitutional Motion itself might be used as a method of attacking a criminal conviction.[2] Similarly, the Petitioners claim that Mr. Myrie’s complaints regarding his prison conditions appear to fall outside of the legislation because they relate to “inaction” on the part of a public authority, and not “action” as referred to Section 13(1)(a)(ii) of the Act. The Petitioners add in this regard that the large number of reports over the years concerning prison conditions in Jamaica call into question the extent to which the Public Defender could effectively remedy Mr. Myrie’s complaints concerning his conditions of detention. 22. The Petitioners also challenge the legislation as an ineffective and unavailable remedy on the basis that the Public Defender has absolute discretion to decide whether to undertake or continue an investigation and whether or not to provide legal aid. In this regard, the Petitioners dispute the State’s contention that the Public Defender does not have discretion in undertaking investigations or in providing legal aid, and refer in this regard to the terms of Section 15(2) of the Act which explicitly provides the Public Defender with “absolute” discretion in undertaking or continuing an investigation, the exercise of which is, according to the Petitioners, effectively unchallengeable before the courts in Jamaica. 23. Further, the Petitioners criticize the fact that the Act does not require Parliament to make funds available for the Public Defender to carry out his duties or that such funds be sufficient for this purpose. The Petitioners point out in this regard that the sections of Jamaica’s Legal Aid Act 1997 dealing with constitutional motions have not yet been brought into force and that there is nothing to indicate that the Public Defender legislation will be any more effective. The Petitioners add that to the extent that the State asserts that the Public Defender acts as a facilitator of access to Constitutional Motions, his or her effectiveness will always necessarily be subject to the availability of sufficient funds in the form of legal aid for each and every person making a complaint for such remedies to be considered available as a matter of fact. 24. In addition to questioning the interpretation and effect of the terms of the Public Defender (Interim) Act 1999, the Petitioners contend that the burden rests on Jamaica to show that the remedy is available as a matter of fact, and claim that Jamaica has not provided adequate statistics to justify the assertion that the remedy under the Act is available in practice. According to the Petitioners, this would include information showing the number of complaints made to the Public Defender, the number of investigations carried out by the Public Defender, the occasions on which legal aid has been granted, the amount of legal aid granted by the Public Defender, the amount of funds if any provided by Parliament for this purpose, the basis on which they have been provided, and the effectiveness of the recommendations suggested by the Public Defender and the success of their application. 25. In response to the statistical information provided by the State prior to and following the October 17, 2002 hearing in this matter, the Petitioners argue that the information is both ambiguous and incomplete. They claim, for example, that the State has failed to provide any information concerning the three complaints in respect of which the State claims legal aid has been provided between April 2000 and December 2002, and that in any event authorizing legal aid in 3 out of 1,776 complaints during this period of time cannot be considered an adequate percentage.
26.
Finally, the Petitioners argue that despite the fact that the
Public Defender is able to commence investigations on his own
initiative, and notwithstanding that he has been made aware of the
circumstances of Mr. Myrie’s complaints, the Public Defender has not
exercised his initiative to investigate the allegations in Mr. Myrie’s
case.
27.
With regard to the six month requirement, the Petitioners argue
that Mr. Myrie’s application for Special Leave to Appeal to the
Judicial Committee of the Privy Council was dismissed on April 24, 2001
and therefore less than six months from the October 22, 2001 lodging of
their petition with the Commission.
28.
Further, the Petitioners assert that the subject matter of the
petition is not pending in another international proceeding and has not
previously been determined or examined by the Commission or any other
international governmental organization of which Jamaica is a member.
29.
With respect to the substance of their complaints against the
State, the Petitioners raise three principal allegations.
First, they allege that the State is responsible for violations
of Mr. Myrie’s right to humane treatment contrary to Articles 5(1),
5(2) and 5(4) of the Convention and Article XXV of the Declaration by
reason of his conditions of detention while in custody at the Barnett
Street police station, on remand at St. Catherine’s District Prison,
on death row at St. Catherine’s District Prison following his
conviction and, following his appeal, at the General Penitentiary and at
St. Catherine’s Prison where he is serving his life sentence.
In support of their allegations, the Petitioners have provided
particulars concerning the conditions of Mr. Myrie’s detention at each
of these institutions, in relation to such matters as the nature and
quality of basic accommodations, hygiene, and medical treatment. 30. Second, the Petitioners contend that the State is responsible for violations of Mr. Myrie’s right to a fair trial under Article 8 of the Convention and Article XXVI of the Declaration, by permitting Mr. Myrie’s conviction to be based in part upon improperly obtained evidence, namely a confession that he was forced to sign under threat. The Petitioners also challenge as prejudicial the trial judge’s decision to allow the jury to remain during a voir dire and contend that the trial judge erred in giving reasons in the presence of the jury for finding that there was no case to answer against Mr. Myrie’s co-defendants. Further, the Petitioners argue that the trial judge erred in allowing the trial to continue in the absence of Mr. Myrie’s trial attorney and by failing to allow the character of the deceased to be examined, and also claim that Mr. Myrie’s counsel was incompetent.
31.
Finally, the Petitioners argue that the State is responsible for
violations of Articles 24 and 25 of the American Convention and Articles
II, XVII and XXVI of the Declaration by denying Mr. Myrie an effective
remedy for the violations of the Constitution of Jamaica and of the
Convention which Mr. Myrie is alleged to have suffered.
The Petitioners rely in this regard on their previous contention
that Mr. Myrie has no procedural opportunity to pursue a Constitutional
Motion due to the procedural complexity of the legal issues, the costs
of instituting such proceedings, and the fact that the State does not
provide legal aid for such motions.
B.
Position of the State
32.
With respect to the admissibility of the Petitioners' petition,
the State claims that Mr. Myrie has failed to exhaust domestic remedies
in accordance with Article 46(1)(a) of the Convention, because he has
not pursued a Constitutional Motion before the domestic courts in
Jamaica. In particular, the
State asserts that Section 25 of the Constitution of Jamaica permits
persons to apply to the Supreme Court of Jamaica for redress and for the
Supreme Court to hear and determine an application for the purpose of
enforcing or securing the enforcement of protection of the rights and
freedoms under the Constitution.
33.
Further in this connection, the State advised the Commission that
on August 16, 2000, the Public Defender (Interim) Act 1999 came into operation in Jamaica
and that this legislation has provided Mr. Myrie with effective access
to domestic remedies that he is obliged to exhaust before coming to the
Commission. The State
provided the Commission with a copy of this legislation, the pertinent
parts of Sections 13, 14 and 15 of which read as follows: 13.
(1) Subject to this section, the Public Defender shall investigate any
action taken where he is of the opinion- (a)
that any person or body of persons – (i)
has sustained injustice as a result of any action taken by an authority
or an officer or member of such authority, in the exercise of the
administrative functions of that authority; or (ii)
has suffered, is suffering or is likely to suffer an infringement of his
constitutional rights as a result of any action taken by an authority or
an officer or member of that authority; [.
. .] 14.
(1) A complaint to the Public Defender may be made by any person or body
of persons, whether incorporated or not, who claims – (a)
to have sustained an injustice referred to in paragraph (a)(i) of
subsection (1) of section 13; (b)
to have suffered, to be suffering or to be likely to suffer an
infringement referred to in paragraph (a)(ii) of that subsection; or (c)
to have sustained an injustice referred to in paragraph (b) of
that subsection, but
such complaint shall not be made by a local authority or a body
constituted for the purposes of the public service or a local authority. [.
. .] 15.
(1) An investigation pursuant to – (a)
subsection (1)(a)(i) and (b), (3) and (4) of section 13 may be
undertaken by the Public Defender on his own initiative or on a
complaint made to him pursuant to section 14; or (b)
subsection (1)(a)(ii) of section 13 may be under taken by the
Public Defender on a complaint made to him pursuant to section 14. (2)
The Public Defender may, in his absolute discretion, determine
whether to undertake or continue an investigation and in particular, but
without prejudice to the generality of the foregoing, may refuse to
undertake or continue any investigation if he is of the opinion that – (a)
the subject matter of the complaint is trivial; (b)
the complaint is frivolous or vexatious or not made in good
faith; (c)
the complainant has deferred for too long in making his complaint
to the Public Defender; (d)
the complainant does not have sufficient interest in the subject
matter of the complaint; or (e)
having regard to all of the circumstances of the case, no
investigation or further investigation is necessary. (3)
Where the Public Defender decides not to undertake or continue
the investigation of a complaint, the Public Defender shall inform the
complainant in writing of his decision and give reasons therefor. (4)
The Public Defender in the discharge of his functions, shall
determine whether there is a prima
facie case in respect of which the complainant can institute
proceedings but shall not represent any complainant in any court or in
any tribunal. (5)
The Public Defender shall ensure that any person who alleges that
his constitutional rights have been or are likely to be infringed is
provided with ready access to professional advice and where necessary to
legal representation. (6)
For the purposes of subsection (5), the Public Defender shall – (a)
determine whether the complainant is in need of legal aid; (b) authorize payment of such legal aid out of funds provided by Parliament to the Public Defender for that purpose; (c)
compile a list of attorneys-at-law who, in his opinion, are
experienced in constitutional matters; and (d)
invite the complainant to select an attorney-at-law from the list
or if no such selection is made, the Public Defender may recommend an
attorney-at-law whose name is on that list. 34. The State claims that the Act creates a facility in the form of the Office of the Public Defender, through which a person who has suffered, is suffering or is likely to suffer an infringement of his or her constitutional rights may have the matter investigated pursuant to Sections 13 and 14 of the Act. The State alleges further that pursuant to Section 15 of the Act, the Public Defender may undertake an investigation on a complaint submitted to him pursuant to Section 14 and, according to Section 15(5), “[t]he Public Defender shall ensure that any person who alleges that his constitutional rights have been or are likely to be infringed is provided with ready access to professional advice and where necessary to legal representation.” According to Section 15(6), for the purposes of Section 15(5), the Public Defender shall, inter alia, determine whether the complainant is in need of legal aid, and authorize payment of such legal aid out of funds provided by Parliament to the Public Defender for that purpose. 35. In support of its arguments, the State provided the Commission with an affidavit from Howard Hamilton, the Public Defender for Jamaica, sworn on February 22, 2002 which indicates, inter alia, that he was appointed Public Defender on April 14, 2000 and that he had not received a complaint or allegations from Mr. Whitley Myrie pursuant to Section 14 of the Public Defender (Interim) Act 1999. He also categorically denies that Mr. Myrie had been denied access through the Office of the Public Defender to remedies under domestic law or from exhausting them, and that pursuant to Section 13 of the Act he is able to begin a separate investigation into the allegations of Mr. Myrie “without delay upon a complaint being received by my Office regarding same.” 36. In response to the Petitioners’ contentions concerning the effectiveness of the Public Defender (Interim) Act as a domestic remedy, the State denies that Section 13(2)(b)(i) of the Act precludes the Public Defender from investigating Mr. Myrie’s complaints of an unfair trial. Rather, the State claims that Section 13(4) of the Act provides that the Public Defender shall not be precluded from conducting an investigation in respect of any matter by reason of the fact that it is open to the complainant to apply to court for redress under Section 25 of the Constitution. The State asserts that Section 20 of the Constitution of Jamaica guarantees the right to a fair hearing of persons charged with criminal offenses for persons who have instituted proceedings for the determination of the existence or extent of civil rights and obligations and therefore that Section 13(1)(a)(ii) of the Act provides the Public Defender with jurisdiction to investigate Mr. Myrie’s fair trial complaints. 37. Similarly, the State denies that the Public Defender cannot investigate allegations of inhumane treatment in relation to prison conditions. Rather, according to the State, the reference to the term “action” in Section 13(1)(a)(ii) includes both an act of commission and an act of omission. 38. Further, the State denies that the Public Defender’s discretion to investigate a complaint means that he is not under a positive obligation to investigate a complaint. Rather, the State asserts that Sections 15(2) and 15(3) must be read in conjunction with Section 13(1)(a)(ii) of the Act and that the purpose of providing the Public Defender with absolute discretion under Section 15(2) is to preclude political interference. Also in this regard, the State denies that the provision of legal aid is in the sole discretion of the Public Defender. The State argues that according to Section 15(5) of the Public Defender (Interim) Act 1999, the Public Defender “shall ensure” that any person who alleges that his constitutional rights have been or are likely to be infringed is provided with ready access to professional advice and where necessary to legal representation, and that this provision must be read in conjunction with Section 15(6) of the Act, which expressly provides for the Public Defender to authorize the payment of legal aid where it has been determined that the complainant is in need thereof. 39. The State also denies that the Parliament in Jamaica is not obliged to make public funds available to the Public Defendant. Rather, Section 22(2) of the Public Defender (Interim) Act requires the Public Defender to submit to the Minister for approval an estimate of revenue and expenditure for the financial year. 40. With regard to the Petitioners’ allegations as to the proof of the availability in fact of the Public Defender as an effective remedy, the State denies that it has failed to provide evidence indicating that the Public Defender is an effective remedy. Rather, the State contends that “the Act is new and therefore if every victim refuses to pursue the remedies made available to them under this Act, there will consistently be no cases for the Public Defender to exercise the functions provided for under the Act.” Further, in its observations of October 16, 2002, the State provided the Commission with additional information concerning the implementation of the Act since April 2000 by way of an affidavit sworn on October 16, 2002 by Kenneth Angier, an attorney-at-law and Crown Counsel in the Jamaican Attorney General’s Chambers. The pertinent parts of Mr. Angier’s affidavit read as follows: 3.
I am informed by Mr. Cory Mills the Deputy Public Defender and do verily
believe that the procedure for handling complaints is as follows: (a) All complaints received are entered numerically in a register.
This assists in having a comprehensive knowledge of all files as
it relates to their origin, nature of complaint, authority and how the
compliant has been disposed of. (b) On receipt of complaints for those requiring legal representation
steps are taken to assist the complainant immediately by providing legal
advice and representation as each case dictates. 4. I am further informed by Mr. Cory Mills, the Deputy Public Defender
and do verily believe that Since [sic] April 2000 the Office of the
Public Defender has received a total of One Thousand Seven Hundred and
Seventy Six (1776) complaints from members of the public in general and
inmates of our penal institutions in particular and that the Office has
conducted ten investigations on our own volition. 5. I am further informed by Mr. Cory Mills, the Deputy Public Defender
and do verily believe that the complaints received were disposed of as
follows:
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