This report concerns a capital punishment petition that was
presented by letter dated April 23, 1997, to the Inter-American Commission on
Human Rights (hereinafter “the Commission”) on behalf of Mr. Rudolph
Baptiste, by Saul Lehrfreund Esq., Solicitor of Messrs. Simon Muirhead &
Burton, a firm of Solicitors in London, United Kingdom (hereinafter “the
petitioners”) against the State of Grenada (hereinafter "the State” or
“Grenada”) for alleged violations of Mr. Baptiste’s rights under the
American Convention on Human Rights (hereinafter “the Convention") and
the American Declaration of the Rights and Duties of Man (hereinafter “the
The petitioners claim that on July 11, 1995, Rudolph Baptiste was
convicted of the murder of his mother, Ms. Annie Baptiste-Lambert, (hereinafter
“the deceased” or “Mr. Baptiste’s mother”) pursuant to Section 234 of
the Criminal Code of Grenada.
The petitioners maintain that the murder of Mr. Baptiste’s mother
occurred on November 19, 1993, following Mr. Baptiste’s intervention to
prevent his mother from further “beating” his thirteen year old younger
brother, Deverill, with a belt. Mr.
Baptiste was sentenced to death by hanging, and is awaiting execution at
Richmond Hill Prison, in Grenada. The petitioners claim that Mr. Baptiste
appealed his conviction to the Court of Appeal in Grenada.
His appeal was dismissed by the Court on November 27, 1995.
The petitioners argue that the State has violated Mr. Baptiste’s
rights under Articles 4(1), 4(6), 5(1), 5(2), 5(6), 8, and 24 of the Convention
and Articles I, II, XVIII, and XXVI of the Declaration, and request that the
Commission recommend to the State that it quash Mr. Baptiste’s death sentence
and release him from detention.
The petitioners contend that if Mr. Baptiste is executed while
this petition is pending determination by the Commission, it would result in
irreparable damage to him. The
petitioners therefore request that the Commission issue Precautionary Measures
pursuant to Article 29(2) of its Regulations against the State and ask the State
to suspend Mr. Baptiste’s execution pending the determination of his petition
by the Commission.
PROCEEDINGS BEFORE THE COMMISSION
Upon receipt of the petition on April 23, 1997, and the parties’
subsequent submissions, the Commission has complied with the procedural
requirements of the American Convention and its Regulations.
It has studied, examined and considered all information submitted by the
parties, and has forwarded the pertinent parts of each party’s submissions to
the other party.
On April 29, 1997, the
Commission opened a case in this matter and forwarded the pertinent parts of the
petition to the State pursuant to Article 34 of its Regulations. The Commission
requested that the State provide it with information within 90 days that would
permit the Commission to process and study the petition, including determining
whether domestic remedies had been exhausted. The Commission also requested that
the State stay Mr. Baptiste’s execution pending an investigation by it of the
By letter dated November 3, 1997, the petitioners requested that
the Commission conduct an on-site visit to Grenada where Mr. Baptiste is
detained. They also requested an oral hearing before the Commission.
By communication dated January 23, 1998, the Commission informed
the petitioners and the State that a hearing in the case had been scheduled for
Friday, February 27, 1998 at 10:00 a.m., during the Commission’s 98th
period of sessions.
By letter dated February 10, 1998, the Commission reiterated its
request to the State that it provide the Commission within 30 days with
information deemed appropriate to determine the facts alleged in the case.
On February 25, 1998, the Commission forwarded to the State a copy
of the petitioners’ arguments on admissibility and merits, which the
petitioners intended to present at the hearing on February 27, 1998.
On February 27, 1998, a hearing was held before the Commission.
The State did not attend or participate in the hearing. The petitioners were
represented by Barristers of the Bar of England and Wales, namely, Nicholas
Blake Barrister, Q.C., and Keir Starmer Esq., and Saul Lehrfreund Esq., an
English Solicitor, who presented oral arguments on the admissibility and merits
of this petition. In their
presentation, the petitioners reiterated their position on the claims and
arguments raised before the Commission, which are discussed in the
petitioners’ position in Chapter III of this Report.
On September 1, 1998, the Commission wrote to the State and again
reiterated its request for information as contained in its letters of April 29,
1997, February 10, 1998, and February 25, 1998, asking for a response within 30
days. Again on August 18, 1999, the Commission further reiterated its request to
the State for information on the claims raised in the petition, asking for a
response within 30 days.
On September 20, 1999, the Commission wrote to both the State and
the petitioners and informed them that it placed itself at their disposal with a
view to reaching a friendly settlement of the case pursuant to Article 48(1)(f)
of the American Convention on the basis of respect for the human rights
recognized therein. The Commission also indicated that if the State and the
petitioners were interested in accepting the Commission’s offer, they should
provide it with a response within 7 days of receipt of its communication,
otherwise the Commission would continue with the consideration of the case.
On September 24, 1999, in response to the Commission’s offer to
assist in a friendly settlement between the parties, the petitioners requested
that the Commission convey to the
State that “commutation of Mr. Baptiste’s death sentence is the only
appropriate way of reaching a friendly settlement in the case, because of the
reasons set forth in the petition which constitutes violations of Articles 4, 5,
8, and 24 of the American Convention, and on the basis of respect for the human
rights recognized in the American Convention.” The pertinent parts of this
communication were forwarded to the State on September 27, 1999.
To date, the State has not responded to any of the Commission’s
communications, nor has it presented any information to the Commission
pertaining to the admissibility and merits of the petition, or the
Commission’s offer to facilitate a friendly settlement between the parties.
POSITIONS OF THE PARTIES
Position of the petitioners
Background of the case
According to the petitioners,
Mr. Baptiste is twenty two years old and is the eldest son of the deceased, Ms.
Annie Baptiste-Lambert. Mr. Baptiste lived with his seventeen year old maternal
brother, Anderson, his girlfriend, Bernadette Julien, and their two children, in
another house in the same yard where his mother lived.
The petitioners state that on
the morning of November 19, 1993, the deceased was in her house “beating”
her thirteen year old son and Mr. Baptiste's younger brother, Deverill, with a
belt. Mr. Baptiste decided to intervene to stop the abuse by “wrestling” or
“fighting” with his mother, and took the belt from her. The deceased
continued to “quarrel” for most
of that morning, and told Mr. Baptiste that she was going to report him to the
As she was leaving the yard at
approximately 12:30 p.m. on the same day, the deceased came upon Mr. Baptiste
sitting on a stone outside of his house. The deceased approached Mr. Baptiste,
slapped him, and said: "Today, today,
I must kill you." There were
some shoe laces on a clothes line tied together in a “caboya or noose” in
the yard, which had been present for several days prior to the incident. Mr.
Baptiste pulled the shoe laces from the line, opened the noose, and tried to
pass it over his mother’s shoulders to tie both of her hands. While doing so,
however, his mother jerked away, causing the laces to draw around her neck and
strangle her. Mr. Baptiste claims that he did not intend to do anything more
than tie his mother's hands to prevent her from hitting him again.
Mrs. Roma Findlay, a social worker who had visited the Baptiste
family several times in the course of her social work, testified at trial. Based
upon her experience, Mrs. Findlay indicated that Mr. Baptiste was the only one
of the deceased’s grown children who took an interest in his younger sister,
nine-year-old Samantha, who had been living in a children’s home. Mrs. Findlay
also testified that Mr. Baptiste was a good brother to Samantha, that he was of
“good character,” and that he was not a “violent type of person.”
Position of the petitioners on admissibility
The petitioners argue that Mr. Baptiste has exhausted the domestic
remedies in Grenada because he appealed his July 11, 1995 conviction for capital
murder to the Court of Appeal in Grenada, and the Court dismissed his appeal on
November 27, 1995. The petitioners also claim that Mr. Baptiste decided not to
petition the Judicial Committee of the Privy Council for Special Leave to
Appeal, based upon written advice from Tim Owen Esq., an English Barrister that
he did not have good grounds upon which to petition the Privy Council.
In addition, the petitioners indicate that the Privy Council has no jurisdiction
to vary the sentence of death and substitute a lesser sentence, and that there
are no domestic remedies available to Mr. Baptiste in respect of his sentence.
The petitioners also contend that failure of the State Party to
provide legal aid for Constitutional Motions denies Mr. Baptiste access to a
court and hence to an effective remedy for violations of the American
Convention. The petitioners indicate that Section 16(1) of Grenada’s
gives an individual the right to apply to the High Court for redress in respect
of alleged Constitutional violations by way of a Constitutional Motion. The
petitioners argue, however, that Mr. Baptiste is unable to pursue a
Constitutional Motion in the High Court of Grenada because the practical
barriers render such a remedy illusory. In particular, the petitioners argue
that the Constitution is a complex legal document, and therefore a
Constitutional Motion clearly requires expert legal representation to establish
a reasonable prospect of success. They also submit that Mr. Baptiste lacks
private funding, and that legal aid is unavailable to pursue a Constitutional
Motion. Further, the petitioners indicate that there is a dearth of Grenadian
lawyers who are prepared to represent Mr. Baptiste without payment.
Consequently, according to the petitioners, a Constitutional Motion is not an
available remedy for Mr. Baptiste.
In addition, the petitioners argue that the absence of Legal Aid
for an impecunious individual to pursue a Constitutional Motion is sufficient
failure on the part of the State to satisfy the Commission that the remedy is
not available. In support of their position, the petitioners cite the decisions
of the United Nations Human Rights Committee (HRC) in Champagnie, Palmer
& Chisolm v. Jamaica, in which the HRC stated as follows:
respect to the authors’
possibility of filing a Constitutional Motion, the Committee considers that, in
the absence of Legal Aid, a
Constitutional Motion does not constitute an available remedy in the case.
In light of the above, the Committee finds that it is not precluded by
Article 5(2)(b) of the Optional Protocol from considering the communication.
Position of the petitioners on the merits
Articles 4, 5, 8 and 24 of the Convention - The mandatory nature of the
death penalty and the prerogative of mercy
The mandatory death penalty
The petitioners claim that by imposing a mandatory death sentence
on Mr. Baptiste upon his conviction for murder, the State violated his rights
under Articles 4(1), 4(6), 5(1), 5(2), 5(6), 8 and 24 of the Convention, as well
as his rights under Articles I, II, XVIII, and XXVI, of the American
The petitioners referred to the legislative history of the death
penalty in Grenada. The petitioners state that until 1974, Grenada was a British
Colony whose penal law consisted of the common law and local penal codes as
developed in England and Wales, and that pursuant to the (British) Offences
Against the Person Act 1861, the penalty for murder was death. The
petitioners claim that in the United Kingdom, Section 7 of the Homicide Act
1957 restricted the death penalty in the United Kingdom to the offence of
capital murder pursuant to Section 5, or murder committed on more than one
occasion under Section 6. The petitioners also indicate that Section 5 of the Homicide
Act classified a capital murder as murder by shooting or explosion, murder
done in the course or furtherance of theft, murder done for the purpose of
resisting or preventing arrest or escaping from custody, and murders of police
and prison officers acting in the execution of their duties.
In addition, the petitioners maintain that Section 2 of the Homicide
Act contained provisions for reducing the offence of murder to one of
manslaughter, when the murder was committed by a person, who at the time of the
commission of crime was suffering from such abnormality of mind so as to
substantially impair his mental responsibility for the acts and admission in
doing, or being a party to the killing (diminished responsibility).
The petitioners indicate that Section 3 of the Homicide Act 1957
extended the common law defense of provocation whereby murder may be reduced to
manslaughter where there is provocation by things done or said causing a person
to loose his self control. In addition, the petitioners report that the Homicide
Act 1957 was not applied in Grenada before Independence and that no
provision has been made for non-capital murder or the defense of diminished
According to the petitioners, Grenada became an independent State
on February 7, 1974, when it adopted its Constitution. They also indicate that
Chapter I of Grenada’s Constitution provides for the protection of fundamental
rights and freedoms of the individual. Article 5 of Grenada’s Constitution in
No person shall be subjected to torture or to inhuman or degrading
punishment or other treatment.
Nothing contained in or done under the authority of any law shall
be held to be inconsistent with or in contravention of this Article to the
extent that the law in question authorizes the infliction of any description of
punishment that was lawful in Grenada immediately before the coming into
operation of this Constitution.
In light of the terms of Article 5 of the Constitution, the
petitioners indicate that they accept that the sentence of death for murder does
not violate the Constitution of Grenada, and that Article 5(2) of Grenada’s
Constitution precludes the Courts of Grenada or the Privy Council from
interpreting the right to freedom from inhuman or degrading punishment under the
Constitution as prohibiting the administration of the death penalty in every
case upon a conviction for murder.
At the same time, the petitioners argue that imposing a mandatory death
sentence on Mr. Baptiste, without providing him with an opportunity to present
evidence of mitigating circumstances relating to him or his offense, violates
Mr. Baptiste's rights under Articles 4, 5, 8 and 24 of the Convention.
In support of their position, the petitioners refer to the
practice in other states. They argue, for example, that in the case of Woodson
v. North Carolina the United States Supreme
Court held that the automatic imposition of the death sentence on all those
convicted of a specific offence is inconsistent with “the evolving standards
of decency that are the hallmark of a maturing society.”
The petitioners argue that the Supreme Court made it plain that the
application of the mandatory death sentence imposed in all cases of murder
without objective criteria for its application in particular cases after a fair
hearing was unconstitutional. In
addition, the petitioners indicate that the Supreme Court held further that:
capital cases the fundamental respect for humanity underlying the eight
amendment … 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
In addition, the petitioners contend that the South African
Constitutional Court has gone further and followed the Hungarian Constitutional
Court in declaring the death penalty to be unconstitutional per
se in Decision 23/1990(X.31). Conversely, in the case of Bachan Singh v.
The State of the Punjab, the
Supreme Court of India determined that the death penalty is not unconstitutional
in part because there was a judicial discretion as to whether it should be
imposed. Based upon these domestic authorities, the petitioners argue that
states retaining the death penalty must distinguish between capital and
non-capital murder, and must provide a proper sentencing procedure for
considering whether the death penalty should be imposed in capital cases.
In this connection, the petitioners make reference to a 1992
amendment to Jamaica's Offences Against the Person Act 1861, which
distinguishes capital from non- capital murder. They contend that if Mr.
Baptiste was tried in the United Kingdom or Jamaica, he would have been tried on
a charge of “non capital murder,” as his offence was not a murder of such
special or heinous character as to merit the death penalty. Finally, the
petitioners claim that the law of Belize has introduced judicial discretion in
the application of the death penalty.
The petitioners argue that the American Convention is a living, breathing and developing instrument reflecting
contemporary standards of morality justice and decency and that it shares this
quality with other international instruments such as the International Covenant
on Civil and Political Rights (hereinafter the "ICCPR") and the
European Convention For the Protection of Human Rights and Fundamental Freedoms
(hereinafter the "European Convention").
The petitioners accept that Article 4 of the American Convention does not render
the death penalty per se unlawful.
They add, however, that according to commentators,
Article 4 of the Convention is more restrictive of the circumstances under which
the death penalty can be imposed than the comparable provisions of the ICCPR and
the European Convention.
According to the petitioners, Article 4 of the Convention is
expressly abolitionist in its direction and aspiration, and prescribes
conditions for the implementation of the death penalty. For example, the death
penalty cannot be applied to people below 18 years or over 70 years or for new
offences. The petitioners contend that two conditions in particular render the
imposition of the mandatory death penalty in Mr. Baptiste's case a violation of
Article 4. First, it cannot be considered to have reserved the death penalty
only for the "most serious offences," as required under Article 4(2).
In addition, it fails to distinguish between different cases of murder or ensure
like cases are treated alike, and consequently it is arbitrary and can give rise
to unjust discrimination.
More particularly, the petitioners assert that the drafters of the
American Convention, giving due consideration to the abolitionist tendencies of
the Hispanic states and the restrictionist tendencies of the United States,
intended the term “only for the most serious crimes” under Article 4(2) to
go beyond mere legal label and to require some categorization or opportunity to
make representations as to whether a particular allegation of murder merited
death. Moreover, the petitioners contend that the way in which the death penalty
is administered in Grenada renders the deprivation of life arbitrary and
contrary to Article 4(1) of the American Convention, and add that the fact that
certain sentences of death are lawful under Article 4(2) of the American
Convention does not mean that those sentences cannot be considered arbitrary
under Article 4(1), or cruel, inhuman or degrading contrary to Article 5 of the
The petitioners argue that similar conclusions can be reached with
reference to Article 5 of the American Convention. According to the petitioners,
it has long been recognized by judicial authorities that the death penalty has
features that prompt the description cruel and inhuman, but that this does not
make it unlawfully carried out in conformity with a state’s international
At the same time, the petitioners argue that the death penalty can be rendered
illegal because of the manner in which it is imposed. In this regard, the
petitioners submit that certain factors pertaining to the manner in which Mr.
Baptiste's death sentence has been imposed can be considered to violate Article
5 of the Convention, and to render his execution unlawful under Article 4 of the
Convention. These factors include the lapse of time since Mr. Baptiste's
sentence was imposed, the conditions of his detention on death row, and the
cruelty of sentencing people to death, when there has been a moratorium on
application of the death sentence in Grenada for 20 years.
In addition, the petitioners argue that the mandatory death
sentence imposed on Mr. Baptiste violates Articles 8 and 24 of the Convention,
on the basis that Grenada’s Constitution does not permit Mr. Baptiste to
allege that his execution is unconstitutional as being inhuman or degrading or
cruel and unusual, and does not afford Mr. Baptiste a right to a hearing or a
trial on the question of whether the death penalty should be either imposed or
carried out. The petitioners contend further that the State has violated Mr.
Baptiste’s right to equal protection of the law by imposing a mandatory death
sentence without any judicial proceedings to establish whether the death penalty
should be imposed or carried out in the circumstances of his case.
The petitioners assert that the mandatory death sentence is an
arbitrary and disproportionate punishment unless there is allowance for
individual mitigation, and that even a short custodial sentence cannot be
imposed without affording such an opportunity for mitigation to be presented
before the judicial authority imposing sentence. According to the petitioners,
fair and objective criteria are necessary in determining the question of whether
a convicted murderer should actually be executed, and that if all murderers are
executed, the death penalty would be cruel because it did not allow for any
discretion. The petitioners also
argue that a law which is mandatory at the sentencing stage and involves
unfettered personal discretion at the commutation stage infringes both
principles identified by the United States Supreme Court, and further violates
the principle of equality before the law. The petitioners argue that in Grenada,
not every person who is sentenced to death is executed and that the Prerogative
of Mercy operates to commute a number of sentences.
Finally, the petitioners suggest that the State should consider
converting the moratorium on executions that has existed in Grenada since 1978
into legislative abolition. In this regard, the petitioners indicate that they
accept that the State has not abolished the death penalty in its laws and has
not applied the death penalty since 1978. The
petitioners argue that for the past twenty years people have been sentenced to
death for murder and suffer all the terrors of expectation of a hanging that
confinement to the death row cells in Richmond Prison brings, without any real
intention on the behalf of the authorities to carry this punishment into effect.
The petitioners contend that they respect the humanitarian tendencies of the
Government of Grenada that led to the moratorium in the first place, but suggest
that the de facto moratorium should be
turned into legislative abolition. The petitioners assert that if the State
abolishes the death penalty through legislation, Mr. Baptiste's death sentence
should be speedily commuted to life imprisonment, so that the agony of suspense
relating to his possible execution does not hang over him for years.
With respect to the particular circumstances of Mr. Baptiste's
crime, the petitioners indicate that his state of mind at the time of the
offense may have been relevant in determining his punishment. In this
connection, the petitioners claim that although Grenada’s law has no provision
for the defense of diminished responsibility, Tim Owen, the Barrister from whom
Mr. Baptiste sought advice in respect of a possible appeal to the Judicial
Committee of the Privy Council, expressed the view that sons rarely kill their
mothers. Consequently, Mr. Owen indicated that he would have expected some
medical evidence to have been sought and used at trial, if it provided any kind
of support for the suggestion that in a situation of stress and upset, Mr.
Baptiste snapped and inflicted fatal injuries on his mother.
ii. The prerogative of
The petitioners argue that insofar as the rigors of the mandatory
death penalty are mitigated by the power of pardon and commutation exercised by
the Advisory Committee on the Prerogative of Mercy, as prescribed under Articles
72, 73 and 74
of the Constitution of Grenada, there are no criteria for the exercise of such
discretion, and no information as to whether such discretion is exercised on an
accurate account of the admissible evidence as to the facts relating to the
circumstances of the offence. They also claim that there is no right on the part
of an offender to make either written or oral comments on the question of
pardon, to see or comment on the report of the trial Judge which the Advisory
Committee must consider under Article 74(1) of the Grenadian Constitution, or to
comment on any reasons identified by the trial judge or others as to whether the
sentence of death should be carried out.
The petitioners indicate in this regard that in the case of Reckley
v. Minister of Public Safety Nš 2,
the Privy Council specifically held that a condemned man has no right to make
representations or attend a hearing before the Advisory Committee on the
Prerogative of Mercy established pursuant to Articles 73 and 74 of Grenada’s
Constitution. Rather, the Privy Council held that the power of pardon is
personal to the responsible Minister and is not subject to judicial review,
stating as follows:
actual exercise by this designated Minister of his discretion in a death penalty
case is different. To concern with
a regime, automatically applicable under the designated Minister, having
consulted with the Advisory Committee, decides, in the exercise of his own
personal discretion, whether to advise the Governor General that the law should
or should not take its course. Of
its very nature, the Minister’s discretion, if exercised in favor of the
condemned man, will involve a departure from the law.
Such a decision is taken as an act of mercy or as it used to be said as
an act of grace.
The petitioners also assert that the violation of Mr. Baptiste’s
right to equality before the law by reason of the mandatory death penalty is
further aggravated by the fact that he has no right to be heard before the
Advisory Committee on the Prerogative of Mercy, which itself is alleged to
constitute a violation of Article 4(6) of the American Convention.
In this regard, the petitioners argue that it may well be that poorer
citizens of Grenada are less likely to receive commutation than wealthier
citizens or other forms of discriminatory treatment which exist in the present
arrangements, although they are unaware of any empirical studies on this issue
as it pertains to Grenada. The
petitioners referred to decisions of the United States Supreme Court and the
South African Constitutional Court, in which a tendency of discrimination in the
application of the Prerogative of Mercy has been identified. Moreover, the
petitioners contend that it must be for the party seeking to deprive Mr.
Baptiste of his life to establish the absence of inequality and discrimination
in the operation of its penal law.
Article 5 - Conditions of detention
The petitioners claim that the State has violated Mr. Baptiste’s
rights under Articles 5(1) and 5(2) of the Convention, because of his conditions
of detention, which they describe as follows:
According to the petitioners, since his incarceration in Richmond
Hill Prison, Mr. Baptiste has been detained in conditions that have been
condemned by international human rights organizations as being in violation of
internationally recognized standards. The
petitioners argue that non-governmental organizations have concluded that the
State is in breach of a number of international instruments designed to give
those detained a minimum level of protection, because of inadequate
accommodations, sanitation, diet and health care. In support of their
allegations, the petitioners submitted a notarized Affidavit from Mr. Baptiste
dated April 11th 1997, in which Mr. Baptiste describes his treatment
and conditions of his confinement since his arrest and subsequent conviction for
murder on July 11th, 1995.
The petitioners have also relied upon information regarding prison
conditions in the Caribbean generally. In this connection, the petitioners claim
that all death row prisoners in Grenada are confined in Richmond Hill Prison,
which was built in the 19th century. They also claim that Richmond
Hill Prison was designed to hold 130 prisoners, but that as of October 1996, the
prison had a population of 330 prisoners. Further, the petitioners refer to
numerous reports prepared by the non-governmental organization, “Caribbean
Rights.” For example, in its 1990
report "Deprived of their Liberty," Caribbean Rights made the
following observations about prison conditions in the Caribbean generally,
most of the Caribbean prisons visited, prisoners had to use a bucket in front of
others and were locked in with the bucket for many hours, often for 15 or 16
hours a day. This was the case in
the men’s prison in St. Vincent, Grenada, Trinidad and South Camp
Rehabilitation Centre and St. Catherine District Prison in Jamaica.
both St. Vincent and Grenada the men’s prison uniform was a blue top and
shorts, decent but not very conducive to dignity.
Grenada, there were no separate punishment cells.
Prisoners on punishment were put in the special security blocks. Corporal punishment was not available, but punishment were of
two types of restricted diet and loss of remission up to 90 days, though it was
reported that it was rare for a prisoner to lose that much remission.
There is no appeal machinery against the imposition of punishment.
Caribbean Rights' 1990 Report also indicated that in 1990, there
were approximately 20 prisoners under sentence of death in Grenada, and
described conditions on death row in Grenada as follows:
prisoners under sentence of death were kept in special security blocks attended
by prison officers wearing a different uniform from the prison officers in the
rest of the prison, a green combat-type uniform.
There were three such blocks, each with a corridor down the middle and 8
to 10 cells on each side of the
door. The cell doors are solid with a rectangular aperture at eye
level. The prisoners in the blocks
wore the same clothes as the other prisoners, that is a blue shirt and blue
shorts. Upon the arrival of the
visiting party, the prison officers in the special security blocks opened the
outer door, salute to the senior officer present and recited a military style
statement about the numbers locked up and everything being in order.
Then the officer walked down the row shouting the name of each prisoner
as he passed. The prisoner then stood to attention in the middle of the
cell, hands behind his back and replied, “Sir.” … The prisoners in the
special security blocks are reported to get one hour of exercise a day if
possible, sometimes more.”
Based in part upon these observations, Caribbean Rights reached
several conclusions and made several recommendations in respect of the
conditions of detention of condemned prisoners in the Caribbean, including the
treatment of death row prisoners exacerbates a punishment that is already
completely unacceptable. The
exceptional inhumanity of the physical conditions as reported in Guyana and
Trinidad and seen in St. Vincent and Grenada, constitute an intolerable
imposition of cruelty. It is
understandable that high security must be imposed and some surveillance is
necessary. But keeping death
sentenced prisoners, sometimes for years, in conditions equivalent to or worse
than those of punishment cells, is intolerable.
holding of prisoners sentenced to death in the conditions currently obtaining in
the special security blocks in Grenada is inappropriate and should cease
subjecting prisoners under sentence of death to living with the lights on for 24
hours a day should cease forthwith.
restricting the programme of activities of prisoners awaiting sentence of death
to one hour of exercise a day, should cease forthwith.
Similarly, in a December 1991 Report entitled “Improving Prison
Conditions in the Caribbean," Caribbean Rights noted several concerns
raised by Vivien Stern, the Secretary General of Penal Reform International,
regarding the visitation rights of prisoners and their ability to send and
Grenada, the official visiting allowance is 15 minutes a month for convicted
prisoners. It is 15 minutes a week
for unconvicted prisoners. Normal
civilised contact was impossible. The visit took place through grilles with a
gap between the two grilles of about 18 inches, through which the visitor and
the prisoner had to communicate. Probably
the best they can do in these circumstances is to shout at each other. Writing letters is another way of keeping contact.
Here too there were severe restrictions.
In Grenada, prisoners can write and receive one letter a month.
All ingoing and outgoing mail was read by censors, even for the most
In support of their contention that Mr. Baptiste's conditions of
detention violate Article 5(1) and 5(2) of the Convention, the petitioners refer
to several decisions of the U.N. Human Rights Committee (hereinafter "HRC"),
in which the HRC determined that conditions of detention violated Articles 7
and 10(1) of the International
Covenant on Civil and Political Rights (ICCPR). These cases include Antonaccio
v. Uruguay, 
in which the HRC held that detention in solitary confinement for three months
and denial of medical treatment constituted a violation of the Covenant, and De
Voituret v. Uruguay,
in which the HRC held that solitary confinement for three months in a cell with
almost no natural light violated the applicant’s rights under the Covenant.
The petitioners also rely upon the decision Mukong v. Cameroon,
in which the HRC suggested that conditions of detention which do not meet the
United Nations Standard Minimum Rules for the Treatment of Prisoners violate
Articles 7 and 10(1) of the ICCPR, and that minimum standards of humane
treatment of prisoners apply regardless of a state's level of development:
The petitioners similarly argue that the European Court's
jurisprudence in respect of Article 3 of the European
Convention supports their contention that Mr. Baptiste’s conditions of
detention violate his rights under Article 5 of the American Convention. In
particular, the petitioners rely upon the Greek Case,
in which the Court found conditions of detention amounting to inhumane treatment
to include overcrowding, poor hygiene and sleeping arrangements, and inadequate
recreation and contact with the outside world. Likewise, in the Cyprus v.
Turkey, the Court found that
conditions in which food, water, and medical treatment were withheld from
detainees constituted inhuman treatment. The petitioners also argue that these
cases recognized that a failure to provide adequate medical care may constitute
inhuman treatment, even in the absence of any other ill treatment.
Further, the petitioners argue that the conditions under which Mr.
Baptiste is detained at Richmond Hill Prison constitute violations of the United
Nations Standard Minimum Rules for the Treatment of Prisoners, namely, Rules 10,
11A, 11B, 12, 13, 15, 19, 22(1), 22(2), 22(3), 24, 25(1), 25(2), 26(1), 26 (2),
35(1), 36(1), 36(2), 36(3), 36(4), 57, 71(2) 72(3) and 77.
Finally, the petitioners observe that Grenada failed to respond to
questionnaires sent to OAS member states in connection with the Commission's
efforts in 1995 to establish a working group to conduct studies of prison
conditions in the Americas.
With respect to Article 4 of the Convention, the petitioners argue
that Mr. Baptiste’s detention in inhuman and degrading conditions renders
unlawful the carrying out of his death sentence, and that to carry out his
execution in such circumstances would constitute a violation of his rights under
Articles 4 and 5 of the American Convention. In support of their position, the
petitioners refer to the case of Pratt and Morgan –v- The Attorney General
in which the Privy Council held that prolonged detention under sentence of death
would violate the right under the Constitution of Jamaica not to be subjected to
inhuman and degrading treatment. The petitioners argue similarly that the
lawfulness of Mr. Baptiste's execution cannot be considered in isolation from
the detention which preceded it, and that his conditions of detention should be
considered to render his execution unlawful in the same manner as prolonged
detention on death row.
Article 8 - Unavailability of legal aid for Constitutional Motions
The petitioners claim that the State has violated Mr. Baptiste's
rights under Article 8 of the Convention, because legal aid is not available to
enable him to pursue a Constitutional Motion in the domestic courts in Grenada.
The petitioners maintain that Mr. Baptiste is indigent and therefore lacks the
private resources to bring a Constitutional Motion to challenge violations of
his Constitutional rights. The petitioners also contend that there are a dearth
of Grenadian lawyers who are willing to represent Mr. Baptiste on a pro
bono basis. The petitioners
therefore claim that the failure of the State to provide Legal Aid for Mr.
Baptiste to pursue a Constitutional Motion denies Mr. Baptiste an effective
remedy, which includes access to the Courts in fact as well as in law. In
support of this contention, the petitioners rely upon the decisions of the
European Court of Human Rights in the cases Golder v. UK,
and Airey v. Ireland,
in which the European Court held that Article 6 of the European Convention
imposed positive obligations on the States concerned to provide legal aid in the
interests of justice.
The petitioners argue that a similar interpretation of Article 8
of the American Convention is appropriate. In particular, they argue that
Constitutional Motions in the circumstances of Mr. Baptiste's case should be
considered criminal proceedings for the purposes of Article 8(2) of the
Convention, because they arise from earlier criminal proceedings, and might
serve to quash his capital sentence. Consequently, the petitioners argue that
Article 8(2) of the Convention compels the State to provide legal aid to Mr.
Baptiste to pursue a Constitutional Motion relating to the criminal proceedings
against him. The petitioners also argue that the fact that Mr. Baptiste will be
executed if his Constitutional challenge fails, also weighs in favor of this
The position of the State
The State has not presented any information or arguments to the
Commission on the issues of the admissibility and merits of the petition,
despite the Commission’s communications to it dated April 29, 1997, January
23, 1998, February 10, 1998, September 1, 1998, and August 18, 1999.
Competence of the Commission
The Commission has subject matter jurisdiction in this case, as
the State deposited its instrument of accession to the American Convention on
July 18, 1978,
and the petitioners allege that the State has violated Articles 4, 5, 8, and 24
of the Convention. The Commission also has temporal jurisdiction, as the
petitioners' complaints pertain to acts or omissions that transpired after the
State's accession to the Convention. Finally, the Commission has personal
jurisdiction, as the victim is a citizen of Grenada and the petitioners were
authorized under Article 44 of the Convention to lodge a petition on behalf of
Mr. Baptiste. The Commission is therefore fully competent to examine this
The petitioners have also alleged the violation of Articles I, II,
XVIII and XXVI of the Declaration. In this regard, the Commission notes that
once the Convention entered into force for the State of Grenada on July 18,
1978, the Convention, and not the Declaration became the source of legal norms
for application by the Commission, insofar as the petition
alleges violations of substantially identical rights set forth in both
instruments and those claimed violations do not involve a continuing situation. In Mr. Baptiste's case,
the rights alleged to have been violated by the State under the Declaration are
similarly guaranteed in the Convention. In addition, acts or omissions to which
the alleged violations relate occurred after the State manifested its consent to
be bound by the Convention. Therefore, the Commission declares the petitioners'
claims relating to the Declaration inadmissible, and will only consider the
petitioners' claims relating to the Convention.
Admissibility of the petition
Exhaustion of domestic remedies
Article 46(1) of the American Convention provides that:
“Admission by the Commission of a petition or communication lodged in
accordance with Articles 44 or 45 shall be subject to the following
requirements: (a) that remedies under domestic law have been pursued and
exhausted in accordance with generally recognized principles of international
law. The petitioners argue that Mr. Baptiste exhausted the domestic remedies of
Grenada on November 27, 1995, when
the Court of Appeal in Grenada dismissed Mr. Baptiste’s appeal against
conviction and sentence. The State has failed to provide any observations with
respect to the admissibility or merits of the petitioners' petition. As a
consequence, the Commission finds that the State tacitly waived its right to
object to the exhaustion of domestic remedies.
The Commission therefore does not find the petitioners' case to be inadmissible
by reason of Article 46(1)(a) of the Convention.
Timeliness of petition
In accordance with Article 46(1)(b) of the Convention, a petition
must be presented within a period of six months from the date on which the
complaining party was notified of the final judgment at the domestic level.
Where no such judgment has been issued because it has not been possible to
exhaust domestic remedies, Article 46(2) of the Convention provides that the
6-month requirement does not apply. In the present case, the State has failed to
provide any observations in respect of the admissibility or merits of the
petitioners' petition and has failed to demonstrate to the Commission that the
petition has not been timely filed.
Accordingly, the Commission does not find the petitioners' case to be
inadmissible by reason of Article 46(1)(b) of the American Convention.
Duplication of procedures
The petitioners have indicated that the subject of Baptiste’s
petition has not been submitted for examination under any other procedure of
international investigation. The State has failed to provide any observations
regarding the admissibility or merits of the petitioners' petition, and has
therefore not contested the issue of duplication. The Commission therefore finds
that the petitioners' case is not inadmissible under Articles 46(1)(c) or
Article 47(d) of the Convention.
Articles 47(b) and 47(c) state that the Commission shall consider
inadmissible any petition or communication
submitted under Articles 44 and 45 if the petition does not state facts
that tend to establish a violation of the rights guaranteed by the Convention,
and that the statements of the petitioner or of the State indicate that the
petition or communication is manifestly groundless or obviously out of order.
The petitioners have alleged that the Sate has violated Mr. Baptiste's rights
under Article 4, 5, 8 and 24 of the Convention. In addition, the petitioners
have provided factual allegations that tend to establish that the alleged
violations may be well-founded. The Commission therefore concludes, without
prejudging the merits of the case, that the petitioners' case is not barred from
consideration under Articles 47(b) or 47(c) of the Convention.
Conclusions on admissibility
As noted previously, the State has not replied to the
Commission’s communications to it of April 29, 1997, January 23, 1998,
February 10, 1998, September 1, 1998, and August 18, 1999, to provide the
Commission with information that the State deemed relevant pertaining to the
exhaustion of domestic remedies and the claims raised in the petition, nor has
the State responded to the Commission's communications in respect of the
possibility of a friendly settlement in the case. As a consequence, in
determining the admissibility of this case, the Commission has presumed the
facts as reported in the petition to be true, provided that the evidence does
not lead to a different conclusion, in accordance with Article 42 of the
In accordance with the foregoing analysis of the requirements of Articles
46 and 47 of the Convention and the applicable provisions of the Commission's
Regulations, the Commission decides to declare admissible the claims relating to
the Convention presented on behalf of Mr. Baptiste.
The merits of the petition
Standard of review
Before addressing the merits of this case, the Commission deems it
advisable to articulate its standard of review in capital punishment cases. In
this regard, the Commission is of the view that it must apply a heightened level
of scrutiny in such cases. The right to life is widely-recognized as the supreme
right of the human being, and the conditio
sine qua non to the enjoyment of all other rights.
The Commission therefore considers that it has an enhanced obligation to ensure
that any deprivation of life perpetrated by a State Party through the death
penalty complies strictly with the provisions of the Convention, including in
particular the right to life provisions of Article 4, the guarantees of humane
treatment under Article 5, and the due process and judicial protections
guaranteed under Articles 8 and 25 of the Convention. This “heightened
scrutiny” test is consistent with the restrictive approach to the death
penalty provisions of human rights treaties advocated by other international
In particular, the Inter-American Court has concluded that the American
Convention has adopted an approach in respect of the death penalty that is
“incremental” in character, whereby, “without going so far as to abolish
the death penalty, the Convention imposes restrictions designed to delimit
strictly its application and scope, in order to reduce the application of the
penalty to bring about its gradual disappearance.”
The Commission also notes that the heightened scrutiny test is not
precluded by the fourth instance formula adopted by the Commission. Pursuant to
the “fourth instance formula,” the Commission in principle will not review
the judgments issued by the domestic courts acting within their competence and
with due judicial guarantees.
The fourth instance formula does not, however, preclude the Commission from
considering a case where the petitioner’s allegations entail a possible
violation of any of the rights set forth in the American Convention.
In the case of Clifton Wright, for example, a Jamaican citizen who
alleged that a judicial error resulted in a death sentence against him, the
Commission concluded that the conviction and sentence were undermined by the
record in the case, but that the appeals process in Jamaica did not permit for a
correction of the situation. Consequently, the Commission found that Jamaica had
violated the petitioner’s right to judicial protection under Article 25 of the
Convention, and recommended that the Government of Jamaica order an
investigation of the matter and afford Mr. Wright a judicial remedy to have the
inconsistency corrected. Because Mr. Wright had been denied effective domestic
judicial protection, and was the victim of a discrete human rights violation
under the American Convention, the fourth instance formula did not apply in his
The Commission will therefore review Mr. Baptiste’s allegations
pertaining to the imposition of capital punishment with a heightened level of
scrutiny, to ensure that the right to life as prescribed under the American
Convention is properly respected. In addition, the fourth instance formula will
not preclude the Commission from adjudicating Mr. Baptiste’s rights insofar as
those claims disclose possible violations of the Convention.
Alleged violations of the American Convention
As detailed previously, the petitioners allege: (i) violations of
Articles 4, 5, 8, and 24 of the Convention, relating to the mandatory nature of
the death penalty and the process for granting amnesty, pardon or commutation of
sentence in Grenada; (ii) violations of Article 5 of the Convention pertaining
to Mr. Baptiste’s conditions of detention; and (iii) violations of Article 8
of the Convention, relating to the unavailability of legal aid for
Constitutional Motions in Grenada.
As noted previously, the State has not replied to the
Commission’s communications to it of April 29, 1997, January 23, 1998,
February 10, 1998, September 1, 1998, and August 18, 1999, to provide the
Commission with information that the State deemed relevant pertaining to the
exhaustion of domestic remedies and the claims raised in the petition, nor has
the State responded to the Commission's communications regarding the possibility
of a friendly settlement in the case. As a consequence, in determining the
merits of the petitioners' allegations, the Commission will presume the facts as
reported in the petition to be true, provided that the evidence does not lead to
a different conclusion, in accordance with Article 42 of the Commission's
Articles 4, 5, 8 and 24 - The mandatory death penalty
Mr. Baptiste was sentenced to a mandatory death penalty
Mr. Baptiste was convicted of murder pursuant to Section 234 of
the Criminal Code of Grenada, which provides that "[w]hoever commits murder
shall be liable to suffer death and sentenced to death."
The crime of murder in Grenada can therefore be regarded as subject to a
“mandatory death penalty,” namely a death sentence that the law compels
the sentencing authority to impose based solely upon the category of
crime for which the defendant is found responsible. Once a defendant is found
guilty of the crime of murder, the death penalty must be imposed. Accordingly,
mitigating circumstances cannot be taken into account by a court in imposing the
As indicated in Part III of this Report, Mr. Baptiste has alleged
that because he was sentenced to a mandatory death penalty for the crime of
murder, the State violated his
rights pursuant to Articles 4(1), 4(2), 4(6), 5(1), 5(2), 8 and 24 of the
American Convention. Mr. Baptiste has also argued
that the process for granting amnesty, pardon or commutation of sentence in
Grenada does not provide an adequate opportunity for considering individual
circumstances, and in itself violates Article 4(6) of the Convention.
The Commission will first analyze the compatibility of the
mandatory death sentence for the crime of murder with Articles 4, 5 and 8 of the
Convention, in light of the terms of those provisions, their underlying
principles, and relevant international and domestic precedents. The Commission
will then determine whether the State has violated Mr. Baptiste’s rights under
the Convention, because of the manner in which Mr. Baptiste was sentenced to
II. Articles 4, 5, and 8 of the American Convention and the mandatory
In light of the allegations raised by Mr. Baptiste, the Commission
must first ascertain whether the practice of imposing the death penalty for the
crime of murder through mandatory sentencing is compatible with Article 4 (right
to life), Article 5 (right to humane treatment), and Article 8 (right to a fair
trial) of the American Convention and the principles underlying those
4 of the American Convention provides as follows:
4. Right to Life
Every person has the right to have his life respected. This right
shall be protected by law and, in general, from the moment of conception. No one
shall be arbitrarily deprived of his life.
In countries that have not abolished the death penalty, it may be
imposed only for the most serious crimes and pursuant to a final judgment
rendered by a competent court and in accordance with a law establishing such
punishment, enacted prior to the commission of the crime. The application of
such punishment shall not be extended to crimes to which it does not presently
The death penalty shall not be reestablished in states that have
(4) In no case shall capital punishment be inflicted for political offenses or related common crimes. Capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age or over 70 years of age; nor shall it be applied to pregnant women.
Every person condemned to death shall have the right to apply for
amnesty, pardon, or commutation of sentence, which may be granted in all cases.
Capital punishment shall not be imposed while such a petition is pending
decision by the competent authority.
Article 4 of the Convention permits States Parties that have not
abolished the death penalty to continue to impose it. At the same time, the
Convention strictly regulates the manner in which the death penalty may be
imposed by States Parties in their respective States. This restrictive approach
under the Convention to the perpetuation of the death penalty mirrors the
treatment of the death penalty generally under contemporary international and,
as Part IV of this Report will indicate, domestic practice.
More particularly, drawing in part upon the past experience of
international human rights bodies, several general principles of interpretation
can be identified in respect of the death penalty provisions of international
human rights instruments in general, and Article 4 of the Convention in
particular. First, the supervisory bodies of international human rights
instruments have subjected the death penalty provisions of their governing
instruments to a rule of restrictive interpretation. In its Advisory Opinion on
Restrictions to the Death Penalty under Articles 4(1) and 4(4) of the
Convention, for example, the Inter-American Court of Human Rights adopted a
restrictive approach to Article 4 of the Convention, finding that “the text of
the article as a whole reveals a clear tendency to restrict the scope of this
penalty both as far as its imposition and its application are concerned”.
Other international human rights supervisory bodies have similarly
afforded a strict interpretation of the death penalty provisions in human rights
treaties. The U.N. Human Rights Committee has held in the context of Article 6
of the ICCPR, which parallels Article 4 of the Convention in certain respects,
that the law must strictly control and limit the circumstances in which a person
may be deprived of his life by the authorities of the state.
The Committee has accordingly determined that the imposition of a sentence
of death upon conclusion of a trial in which the provisions of the Covenant have
not been respected constitutes, if no further appeal against the sentence is
possible, a violation of Article 6 of the Covenant. Its recommended remedies in
such cases have included release, and commutation of the
The U.N. Special Rapporteur on Extra-Judicial, Summary or Arbitrary Executions
has likewise emphasized that proceedings leading to the imposition of capital
punishment must conform to the highest standards of independence, competence,
objectivity and impartiality of judges and juries and other strict requirements
of due process. This Commission has
similarly closely scrutinized the circumstances of death penalty cases to ensure
strict compliance with the requirements of due process and judicial protection.
It is also generally recognized that the death penalty is a form
of punishment that differs in substance as well as in degree in comparison to
other forms of punishment. It is the absolute form of punishment that results in
the forfeiture of the most valuable of rights, the right to life, and once
implemented, is irrevocable and irreparable. As the United States Supreme Court
has observed, “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 Commission's view, the fact that the death penalty is an exceptional form
of punishment must also be considered in interpreting Article 4 of the
Finally, with respect to the
restrictions prescribed in Article 4 of the American Convention in particular,
the Inter-American Court has identified three principal limitations explicitly
prescribed in Article 4 on the ability of States Parties to the Convention to
impose the death penalty:
three types of limitations can be seen to be applicable to States Parties which
have not abolished the death penalty. First, the imposition or application of
this sanction is subject to certain procedural requirements whose compliance
must be strictly observed and reviewed. Second, the application of the death
penalty must be limited to the most serious common crimes not related to
political offenses. Finally, certain
considerations involving the person of the defendant, which may bar the
imposition or application of the death penalty, must be taken into account.
The Court’s observations therefore accentuate the significance
of strict adherence to and review of due process guarantees in implementing the
death penalty in accordance with Article 4 of the Convention. Moreover, as part
of that process, the Court suggests that certain circumstances of individual
offenses and individual defendants may bar the imposition or application of the
death penalty altogether, and therefore must be taken into account in sentencing
an individual to death.
It is in light of the foregoing interpretive rules and principles
that the Commission must determine whether the practice of imposing the death
penalty through mandatory sentencing is compatible with the terms of Articles 4,
5 and 8 of the Convention and the principles underlying those provisions.
In the Commission’s view, several aspects of imposing mandatory
death penalties for the crime of murder are problematic in the context of a
proper interpretation and application of the Convention. First, it is
well-recognized that the crime of murder can be perpetrated in the context of a
wide variety of mitigating and aggravating circumstances, with varying degrees
of gravity and culpability. This conclusion is
illustrated by the broad definition of murder under Grenada’s law, as the
unlawful killing of another person with the intent to kill or to cause unlawful
harm or injury.
It is also illustrated by the circumstances of Mr. Baptiste’s case.
Notwithstanding the existence of such disparities, however, the mandatory death
penalty seeks to impose capital punishment in all cases of murder, without
distinction. It subjects an individual who, for example, commits a murder in a
spontaneous act of passion or anger, to the equivalent and exceptional
punishment as an individual who executes a murder after carefully planning and
Mandatory sentencing by its very nature precludes consideration by
a court of whether the death penalty is an appropriate, or indeed permissible,
form of punishment in the circumstances of a particular offender or offense.
Moreover, by reason of its
compulsory and automatic application, a mandatory sentence cannot be the subject
of an effective review by a higher court. Once a mandatory sentence is imposed,
all that remains for a higher court to review is whether the defendant was found
guilty of a crime for which the sentence was mandated.
In the Commission’s view, these aspects of mandatory death
sentences cannot be reconciled with Article 4 of the Convention, in several
respects. As noted above, the mandatory death penalty in Grenada imposes the
death penalty on all individuals convicted of murder, despite the fact that the
crime of murder can be committed with varying degrees of gravity and
culpability. Not only does this practice fails to reflect the exceptional nature
of the death penalty as a form of punishment, but, in the view of the
Commission, it results in the arbitrary deprivation of life, contrary to Article
4(1) of the Convention.
More particularly, imposing a mandatory penalty of death for all
crimes of murder prohibits a reasoned consideration of each individual case to
determine the propriety of the punishment in the circumstances, despite the fact
that murder can be committed under widely-differing circumstances. By its
nature, then, this process eliminates any reasoned basis for sentencing a
particular individual to death and fails to allow for a rational and
proportionate connection between individual offenders, their offenses, and the
punishment imposed on them. Implementing the death penalty in this manner
therefore results in the arbitrary deprivation of life, within the ordinary
meaning of that term and in the context of the object and purpose of Article
4(1) of the Convention.
Accepted principles of treaty interpretation suggest that
sentencing individuals to the death penalty through mandatory sentencing and
absent consideration of the individual circumstances of each offender and
offense leads to the arbitrary deprivation of life within the meaning of Article
4(1) of the Convention. Article 31(1) of the Vienna Convention on the Law of
Treaties provides that a treaty shall be interpreted “in good faith in
accordance with the ordinary meaning to be given to the terms of the treaty in
their context and in light of its object and purpose.” The ordinary meaning of
the term “arbitrary” connotes an action or decision that is based on random
or convenient selection or choice rather than on reason or nature.
The U.N. Human Rights Committee suggested a similar meaning for the term
arbitrary in the context of Article 6(1) of the ICCPR, in the case Kindler v.
In that case, the complainant, a citizen of the United States, was ordered
extradited from Canada to face a possible death sentence in the State of
Pennsylvania for a conviction of murder. The Committee found that Canada did not
violate the complainant’s right under Article 6(1) of the ICCPR not to be
arbitrarily deprived of his life, by extraditing him to the United States
without seeking assurances from the United States’ Government that the death
penalty would not be imposed. At the same time, the Committee suggested that the
decision not to refuse extradition or to seek assurances must be shown to have
been based upon a reasoned consideration of the circumstances of Mr. Kindler’s
States must be mindful of the possibilities for the protection of life when
exercising their discretion in the application of extradition treaties, the
Committee does not find that the terms of article 6 of the Covenant necessarily
require Canada to refuse to extradite or to seek assurances. The Committee notes
that the extradition of Mr. Kindler would have violated Canada’s obligations
under article 6 of the Covenant, if the decision to extradite without assurances
would have been taken arbitrarily or summarily. The evidence before the
Committee reveals, however, that the Minister of Justice reached a decision
after hearing argument in favor of seeking assurances. The Committee further
takes note of the reasons given by Canada not to seek assurances in Mr.
Kindler’s case, in particular, the absence of exceptional circumstances, the
availability of due process, and the importance of not providing a safe haven
for those accused of or found guilty of murder.
The Committee has therefore suggested that an arbitrary decision
includes one that is taken in the absence of a reasoned consideration of the
circumstances of the case in respect of which the decision is made. In this
respect, the mandatory death penalty can be regarded as arbitrary within the
ordinary meaning of that term. The decision to sentence a person to death is not
based upon a reasoned consideration
of a particular defendant’s case, or upon objective standards that guide
courts in identifying circumstances in which the death penalty may or may not be
an appropriate punishment. Rather,
the penalty flows automatically once the elements of the offense of murder have
been established, regardless of the relative degree of gravity of the offense or
culpability of the offender.
The mandatory death penalty cannot be reconciled with Article 4 of
the Convention in another significant respect. As noted previously, the
Inter-American Court has emphasized several restrictions upon the implementation
of the death penalty that flow directly from the terms of Article 4 of the
Convention. These include considerations relating to the nature of a particular
offense, for example whether it can be considered a political or related common
offense, as well as factors relating to the circumstances of an individual
offender, for example whether the offender was under the age of 18 or pregnant
at the time he or she committed the crime for which the death penalty may be
imposed. Article 4 of the
Convention itself presumes that before capital punishment may be lawfully
imposed, there must be an opportunity to consider certain of the individual
circumstances of an offender or an offense. By its very nature, however,
mandatory sentencing imposes the death penalty for all crimes of murder and
thereby precludes consideration of these or any other circumstances of a
particular offender or offense in sentencing the individual to death.
Similarly, by reason of its compulsory nature, the imposition of a
mandatory death sentence precludes any effective review by a higher court as to
the propriety of a sentence of death in the circumstances of a particular case.
As indicated previously, once a mandatory death sentence is imposed, all that
remains for a higher court to review is whether the defendant was properly found
guilty of a crime for which the sentence of death was mandated.
There is no opportunity for a reviewing tribunal to consider whether the
death penalty was an appropriate punishment in the circumstances of the
particular offense or offender. This consequence cannot be reconciled with the
fundamental principles of due process under Articles 4 and 8 of the Convention
that govern the imposition of the death penalty, which, as the Inter-American
Court has recognized, include strict observance and review of the procedural requirements governing the imposition
or application of the death penalty. The absence of effective review further
illustrates the arbitrary nature of implementing the death penalty through
mandatory sentencing, and lead the Commission to conclude that this practice
cannot be reconciled with the terms of Article 4 of the Convention and its
The Commission is also of the view that imposing the death penalty
in all cases of murder is not consistent with the terms of Article 5 of the
Convention or its underlying principles. Article 5 of the Convention provides as
5 – Right to Humane Treatment
(1) Every person has the right to have his physical, mental, and moral
(2) No one shall be subjected to torture or to cruel, inhuman, or
degrading punishment or treatment. All persons deprived of their liberty shall
be treated with respect for the inherent dignity of the human person.
(3) Punishment shall not be extended to any person other than the
(4) Accused persons shall, save in exceptional circumstances, be
segregated from convicted persons, and shall be subject to separate treatment
appropriate to their status as unconvicted persons.
(5) Minors while subject to criminal proceedings shall be separated from
adults and brought before specialized tribunals, as speedily as possible, so
that they may be treated in accordance with their status as minors.
(6) Punishments consisting of deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoners.
(Cap. 76) of the 1958 Revised Laws of Grenada.
The petitioners appended to their petition a copy of the March 15, 1996
written advice from Tim Owen Esq.
Section 16(1) of the Constitution of Grenada states: “if any person
alleges that any of the provisions of sections 2 to 15 inclusive of this
Constitution has been, is being or is likely to be contravened in relation
to him (or, in the case of a person who is detained, if any other person
alleges such a contravention in relation to the detained person), then,
without prejudice to any other action with respect to the same matter which
is lawfully available, that person (or other person) may apply to the High
Court for redress.”
U.N.H.R.C., Champagnie, Palmer & Chisolm v. Jamaica,
Communication Nš 445/1991. Article 5(2) of the United Nations Optional
Protocol provides in part: “The Committee shall not consider any
communication from an individual unless it has ascertained that: (b) The
individual has exhausted all available domestic remedies.
This shall not be the rule where the application of the remedies is
this regard, see Guerra v. Baptiste and others  4 All E.R. 583
(P.C.). In this case, the appellant, who had been convicted of murder in
Trinidad and Tobago and sentenced to death, argued, inter
alia, that to execute him after the period of time that he spent on
death row would constitute a breach of his rights under the Constitution of
Trinidad and Tobago and the principles established by the Privy Council in
the case Pratt and Morgan v. A.G. for Jamaica. In finding that the
Court had jurisdiction to entertain the appellant’s constitutional
argument, the Judicial Committee of the Privy Council relied upon its
determination in Pratt and Morgan and found that judges in Trinidad
and Tobago would as a matter of common law have the power to stay a long
delayed execution as not being in accordance with the due process of
law, and therefore that a long delayed execution was not barred from
challenge as cruel and unusual punishment under the Constitution. At the
same time, the Court confirmed that the death penalty itself could not be
challenged under the Constitution of Trinidad and Tobago:
the coming into force of the Constitution of Trinidad and Tobago 1976 (and
indeed the 1982 Constitution) capital punishment was accepted as a
punishment which could lawfully be imposed, so that execution pursuant to a
lawful sentence of death could amount to depriving a person of his life by
due process of law, and could not itself amount to cruel and unusual
punishment contrary to s. 5(2)(b).
Woodson v. North Carolina, 49 L Ed 2d 944(1976).
Id., at 961.
Bachan Singh v. the State of the Punjab, (1980) 2 SCC 684).
See e.g. Soering v. UK (1989) 11 EHHR 439.
See William Schabas, Abolition of the Death Penalty in
International Law (1993), pp. 263-279.
See State v. Makwanyane and McHunu, Judgment, Case Nš CCT/3/94
(6 June 1995) (Constitutional Court of South Africa). See also
U.N.H.R.C., Ng v. Canada,
Communication Nš 469/1991, at p. 21 (suggesting that every execution of a
sentence of death may be considered to be cruel and inhuman treatment within
Article 7 of the ICCPR).
Articles 72, 73 and 74 of the Constitution of Grenada read as follows:
Governor-General may, in Her Majesty’s name and on Her Majesty’s
behalf.- (a) grant a pardon, either free or subject to lawful conditions, to
any person convicted of any offence; (b) 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; (c) substitute a less
severe form of punishment for any punishment imposed on a person for any
offence; or (d) 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 – (a) the Minister for the time being designated under
Section 72(2) of this Constitution who shall be the Chairman; (b) the
Attorney General; (c) the chief medical officer of the Government of
Grenada; and (d) 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 – (a) in the case of a person who, at the date of his appointment
was a Minister, if he ceases to be a Minister; or (b) if the
Governor-General by instrument in writing under his hand, so directs.
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
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 Committee.
Reckley v. Minister of Public Safety (No. 2) (1996) 2 WLR 281.
Id., pp. 290 d- f.
Caribbean Rights Report 1990, p. 40.
Id. p. 80.
Id. p. 81.
Caribbean Rights Report 1991, p.30.
Article 7 of the ICCPR provides: “No one shall be subjected to torture or
to cruel, inhuman or degrading treatment or punishment.
In particular, no one shall be subjected without his free consent to
medical or scientific experimentation.”
Article 10(1) of the ICCPR provides: “All persons deprived of their
liberty shall be treated with humanity and with respect for the inherent
dignity of the human person."
U.N.H.R.C., Antonaccio v. Uruguay, U.N. Doc. A/37/40.
U.N.H.R.C., De Voituret v. Uruguay, U.N. Doc. A/39/40.
U.N.H.R.C., Mukong v. Cameroon, Communication Nš 458/1991.
Article 3 of the European Convention provides: “No one shall be subjected
to torture or to inhuman and degrading treatment or punishment.”
Eur. Court H.R., Greek Case, 12 YB 1 (1969);
Eur. Court H.R., Cyprus v. Turkey, Application nos. 6780/74 and
Pratt and Morgan –v- The Attorney General of Jamaica  2 AC 1.
Golder v. UK (1975) Series A Nš 18.
Airey v. Ireland (1979) Series A Nš 32.
Article 6(3) of the European Convention provides: “Everyone charged with a
criminal offence has the following minimum rights: (c ) to defend himself in
person or through legal assistance of his own choosing or, if he has not
sufficient means to pay for legal assistance, to be given it free when the
interests of justice so require.”
Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/ii.92
doc.31 rev.3 (3May 1996), p. 53.
The Inter-American Court of Human Rights in its Advisory
Opinion OC-10/89, (interpretation of the
American Declaration of the Rights and Duties of Man Within the Framework of
Article 64 of the American Convention on Human Rights.) July 14, 1989,
para. 46, stated that “For the States Parties to the Convention, the
specific source of their obligations with respect to the protection of human
rights is, in principle, the Convention itself.”
The Commission has established that it can find violations both of the
Declaration and the Convention when there is a continuous situation, such as
a denial of justice, which begins before and persists after the state
concerned has ratified the American Convention.
See: Inter-American Commission on Human Rights, Annual Report
1987-1988. Resolution 28/88
Case 10.109 (Argentina), September 13, 1988.
I/A Court H.R., Viviana Gallardo et
Judgment of November 13, 1981, Nš G 101/81. Series A, para. 26.
I/A Court H.R., Neira Alegria Case, Preliminary Objections, Judgment,
11 December 1991 pp. 44-45, at paras. 25-31.
U.N.H.R.C., Baboheram-Adhin et al. v. Suriname, Communications Nos.
148-154/1983, Adopted 4 April 1985, para. 14.3 (observing that the right to
life under Article 6(1) of the International Covenant on Civil and Political
Rights is the “supreme right of the human being”).
para. 14.3 (finding that the law must strictly control and limit the
circumstances in which a person may be deprived of his life by the
authorities of the state); Report by the U.N. Special Rapporteur on
Extra-judicial Executions, Mr. Bacre Waly Ndiaye, submitted pursuant to
Commission on Human Rights Resolution 1994/82, Question of the Violation of
Human Rights and Fundamental Freedoms in any part of the World, with
particular reference to Colonial and Other Dependent Countries and
Territories, U.N. Doc.E/CN.4/1995/61 (14 December 1994) (hereinafter
“Ndiaye Report”), para. 378, commenting upon fair trial standards
relating to capital punishment as follows:
in many countries the law in force takes account of the standards of fair
trials as contained in the pertinent international instruments, this alone
does not exclude that a death sentence may constitute an extra-judicial,
summary or arbitrary execution. It is the application of these standards to
each and every case that needs to be ensured and, in case of indications to
the contrary, verified, in accordance with the obligation under
international law to conduct exhaustive and impartial investigations into
all allegations of violation of the right to life.
Court H.R., Restrictions to the Death Penalty (Arts. 4(2) and 4(4)
American Convention on Human Rights), Advisory Opinion OC-3/83, (8
September 1983), Annual Report
1984, p. 31, para. 57.
I/A Comm. H.R., Santiago Marzioni, Report Nš 39/96, Case Nš 11.673
(Argentina), 15 October 1996, Annual
Report 1996, p. 76.
See also William Andrews, 1997 Annual Report p. 614.
Section 234 of the Criminal Code, Title XVIII, Cap. 76 ,
p. 790, contains a proviso to the death penalty for a crime of
murder. The proviso states:
that the sentence of death shall not be pronounced or recorded against a
person convicted of murder if it appears to the Court that at the time when
the offence was committed he was under the age of eighteen years; but, in
lieu of such punishment, the Court shall sentence the juvenile offender to
be detained during Her Majesty’s pleasure, and, if so sentenced, he shall,
notwithstanding anything in the other provisions of any other Law or
Ordinance, be liable to be detained in such place and under such conditions
as the Governor may direct, and whilst so detained shall be deemed to be in
Opinion OC-3/83, supra, at 31, para. 52.
6 of the ICCPR provides as follows:
Every human being has the inherent right to life. This right shall be
protected by law. No one shall be arbitrarily deprived of his life.
In countries which have not abolished the death penalty, sentence of
death may be imposed only for the most serious crimes in accordance with the
law in force at the time of the commission of the crime and not contrary to
the provisions of the present Covenant and to the Convention on the
Prevention and Punishment of the Crime of Genocide. This penalty can only be
carried out pursuant to a final judgment rendered by a competent court.
When deprivation of life constitutes the crime of genocide, it is
understood that nothing in this article shall authorize any State Party to
the present Convention to derogate in any way from any obligation assumed
under the provisions of the Convention on the Prevention and Punishment of
the Crime of Genocide.
Anyone sentenced to death shall have the right to seek pardon or
commutation of the sentence. Amnesty, pardon or commutation of the sentence
of death may be granted in all cases.
Sentence of death shall not be imposed for crimes committed by
persons below eighteen years of age and shall not be carried out on pregnant
Nothing in this article shall be invoked to delay or to prevent the
abolition of capital punishment by any State Party to the present Covenant.
et al. v. Suriname, supra, para. 14.3.
U.N.H.R.C., Anthony McLeod v. Jamaica, Communication Nš 734/1997,
U.N. Doc. Nš CCPR/C/62/734/1997.
U.N.H.R.C., Patrick Taylor v. Jamaica, Communication Nš 707/1996,
U.N. Doc. Nš CCPR/C/60/D/707/1996.
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,
including genocide. 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.
v. North Carolina
49 L Ed 2d 944 (U.S.S.C.).
at 31, para. 55.
1953, the British Commission on Capital Punishment noted that “there is
perhaps no single class of offenses that varies so widely both in character
and culpability as the class comprising those which may fall within the
comprehensive common law definition of murder…no one would now dispute
that for many of these crimes it would be monstrous to inflict the death
penalty. The view is widely accepted that this penalty should be reserved
for the more heinous offenses of murder.” Royal Commission on Capital
Punishment, September 1953 Cmnd 8932, Exh. 20. Even in those jurisdictions
in which a distinction has been drawn between capital and non-capital
murder, experience indicates that varying degrees of culpability exist
within categories of capital murder which may warrant discriminate
application of the death penalty. See e.g. Woodson v. North
Carolina, 49 L ED 2d 944, 956, n. 31 (indicating that data compiled on
discretionary jury sentencing of persons convicted of capital murder in the
United States reveal that the penalty of death is generally imposed in less
than 20% of the cases.).
e.g. R. v. Cunningham
 A.C. 566 (P.C.).
Webster’s Third International Dictionary.
U.N.H.R.C., Kindler v. Canada, Communication Nš 470/1991, U.N. Doc.