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REPORT Nš 41/00 I.
SUMMARY
1.
This Report concerns five capital punishment petitions brought against
the State of Jamaica (hereinafter "the State" or "Jamaica")
and pertain to alleged violations of one or more of Articles 1, 4, 5, 7, 8, 24
and 25 of the American Convention on Human Rights (hereinafter "the
Convention"). The petitions were presented to the Inter-American Commission
on Human Rights (hereinafter "the Commission") on behalf of six
condemned men on death row, at St. Catherine District Prison, Jamaica
(hereinafter "the victims"), by four firms of Solicitors in London,
United Kingdom (hereinafter "the Petitioners"). This report addresses
the issues of the admissibility of the petitions, pursuant to Articles 46 and 47
of the American Convention, as well as the merits of each case. 2.
The names of the Petitioners and victims in each of the five cases, the
dates on which the Commission opened files in respect of each complaint, and the
provisions of the American Convention alleged to have been violated in respect
of the six victims in each of the five cases, are as follows: Table
1
3.
The State's principal legislation governing the punishment for the crime
of murder is the Offences Against the Person Act, 1864, as amended by the
Offences Against the Person (Amendment) Act 1992 (hereinafter referred to as
"the Act"). The Act
distinguishes between categories of "capital" and
"non-capital" murder.[1]
In addition, sections 3(1) and 3(1A) of the Act prescribe the death
penalty as the only punishment for persons convicted of capital murder,[2] and for persons convicted on the same or a different
occasion of more than one non-capital murder, referred to in this Report as
"multiple non-capital murder".[3] 4.
The victims in these cases were tried, convicted and sentenced to death
by hanging for capital murder, pursuant to Article 3(1) of the Act, or for
multiple non-capital murder, pursuant to Article 3(1A) of the Act.
In Case 12.023 (Desmond McKenzie) the victim was convicted of capital
murder in the furtherance of burglary and terrorism. In Case 12.044 (Andrew
Downer and Alphonso Tracey), the victims were convicted of capital murder in the
course or furtherance of terrorism and robbery.[4]
In Case Nos. 12.107 (Carl Baker)[5]
and 12.126 (Dwight Fletcher),[6]
the victims were each convicted of three counts of non-capital murder. Finally,
in Case 12.146 (Anthony Rose), the victim was convicted of capital murder in the
course or furtherance of arson. Each
of the victims in these cases appealed to the Court of Appeal in Jamaica and
their appeals were dismissed. Subsequently,
each victim filed a petition for Special Leave to Appeal to the Judicial
Committee of the Privy Council, which dismissed their petitions.
5.
The petitioners in these cases allege that the State violated the
victims' rights under the American Convention on one or more of the following
grounds, particulars of which are provided in Part III.A of this Report: a. violations of Articles 4(1), 4(2), 4(3), 4(6), 5, 8, 24 and 25 of the
Convention, relating to the mandatory nature of the death penalty for the crime
of capital and multiple non-capital murder in Jamaica and the process for
granting amnesty, pardon or commutation of sentence in Jamaica; b.
violations of Articles 5, 7(4), 7(5), 7(6) and 8 of the Convention,
relating to delays in the victims' criminal proceedings; c.
violations of Articles 4 and 5 of the Convention, relating to the
victims' conditions of detention and the method of execution in Jamaica; d.
violations of Articles 4, 8(1) and 8(2) of the Convention, relating to
the adequacy of time and facilities for preparing the victims' legal defenses,
the adequacy of their legal representation, and the manner in which their
criminal proceedings were conducted; e.
violations of Articles 2, 8, 24 and 25 of the Convention, relating to the
unavailability of legal aid for Constitutional Motions in Jamaica; f.
violations of Articles 4(1), 4(6), 5(2) and 25 of the Convention,
relating to the validity of Jamaica's Governor General Instructions; h.
violations of Article 1(1) of the Convention with regard to the above
mentioned violations. 6.
As a procedural matter, the Commission decided to consolidate these five
cases for the purposes of this Report pursuant to Article 40(2) of the
Commission's Regulations, on the basis that the cases involve similar facts and
substantially the same issues under the Convention. 7.
The Commission had not previously made admissibility determinations
pursuant to Articles 46 and 47 of the Convention in respect of any of the cases
currently before it. After having
considered the matters, the Commission decided to declare admissible the claims
presented on behalf of the victims in their entirety in four cases: 12.023
(Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.126 (Dwight
Fletcher) and 12.146 (Anthony Rose). With respect to Case 12.107 (Carl Baker),
the Commission decided to declare admissible the claims presented on behalf of
the victim, with the exception of the violations of Articles 12(1) and 12(2) of
the Convention alleged on behalf of the victim, which the Commission declared
inadmissible pursuant to Article 47(b) of the Convention. 8.
In addition, upon consideration of the merits of the five cases that are
the subject of this Report, the Commission reached the following conclusions: a.
The State is responsible for violating the rights of the victims in Case
12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107
(Carl Baker), 12.126 (Dwight Fletcher) and 12.146 (Anthony Rose) under Articles
4(1), 5(1), 5(2) and 8(1), in conjunction with violations of Article 1(1) of the
American Convention, by sentencing these victims to a mandatory death penalty. b.
The State is responsible for violating the rights of the victims in Case
12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107
(Carl Baker), 12.126 (Dwight Fletcher) and 12.146 (Anthony Rose) under Article
4(6) of the Convention, in conjunction with violations of Article 1(1) of the
Convention, by failing to provide these victims with an effective right to apply
for amnesty, pardon or commutation of sentence. c.
The State is responsible for violating the rights of the victims in Case
12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107
(Carl Baker), and 12.126 (Dwight Fletcher) under Articles 7(5) and 8(1) of the
Convention, in conjunction with violations of Article 1(1) of the Convention, by
reason of the delays in trying the victims. d.
The State is responsible for violating the rights of the victims in Case
12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey) and
12.126 (Dwight Fletcher) under Article 7(5) of the Convention, in
conjunction with violations of Article 1(1) of the Convention, by failing to
bring the victims promptly before a judge following their arrests; e.
The State is responsible for violating the rights of the victims in Case.
12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107
(Carl Baker), 12.126 (Dwight Fletcher) and 12.146 (Anthony Rose) under Articles
5(1) and 5(2) of the Convention, in conjunction with violations of Article 1(1)
of the Convention, by reason of these victims' conditions of detention. f.
The State is responsible for violating the rights of the victim in Case
12.126 (Dwight Fletcher) under Article 5(4) of the Convention, in conjunction
with a violation of Article 1(1) of the Convention, by detaining the victim with
convicted persons prior to his trial and conviction. g.
The State is responsible for violating the rights of the victim in Case
12.023 (Desmond McKenzie) under Article 5(6) of the Convention, in conjunction
with a violation of Article 1(1) of the Convention, by depriving the victim of
opportunities for reform and social readaptation. h.
The State is responsible for violating the rights of the victims in Case
12.023 (Desmond McKenzie) and 12.126 (Dwight Fletcher) under Articles 8(2)(d)
and 8(2)(e) in conjunction with violations of Article 1(1) of the Convention, by
denying the victims legal counsel during various stages of their criminal
proceedings. i.
The State is responsible for violating the rights of the victims in Case
12.023 (Desmond McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107
(Carl Baker), 12.126 (Dwight Fletcher) and 12.146 (Anthony Rose) under Articles
8 and 25 of the Convention, in conjunction with violations of Article 1(1) of
the Convention, by failing to make legal aid available to these victims to
pursue Constitutional Motions. II.
PROCEEDINGS BEFORE THE COMMISSION
A.
Petitions and observations
9.
The Commission opened the cases that are the subject of this Report on
various dates between June of 1998 and May 1999, as set out in the previous
Table 1, and transmitted the pertinent parts of the petitions to the State, with
responses requested within 90 days. The materials filed in support of certain of
the petitions included: transcripts from the victims’ criminal proceedings
before the Courts in Jamaica; judgments of the Jamaican Court of Appeal
dismissing the victims’ appeals from their convictions; petitions filed by the
victims for Special Leave to Appeal to the Judicial Committee of the Privy
Council; affidavits and questionnaires prepared by certain victims concerning
the conditions of their detention and the circumstances of their criminal
proceedings; and reports from various governmental and non-governmental
organizations concerning prison conditions in Jamaica. The supporting materials
pertaining to particular allegations raised by each victim are identified and
discussed in the substance of this Report. 10.
The particulars of the initial processing of each of the cases are set
out in Table 2 below: Table
2
11.
As the above Table 2 indicates, the Commission received responses to the
original petitions from the State in each of the five Cases. The pertinent parts of the State's responses were transmitted
to the Petitioners, with observations and responses requested within 30 days.
In all of the cases, the Petitioners delivered observations on the
State's responses, the pertinent parts of which the Commission subsequently
transmitted to the State, with responses requested within 30 days.
In each of the five cases, the State delivered replies to the
Petitioners' observations, the pertinent parts of which were transmitted to the
Petitioners, with a response requested within 30 days.
12.
Furthermore, in four of the five cases, Case Nos. 12.023 (Desmond
McKenzie), 12.044 (Andrew Downer and Alphonso Tracey), 12.107 (Carl Baker) and
12.126 (Dwight Fletcher), the Petitioners delivered "supplementary"
written submissions to the Commission, which the Commission subsequently
transmitted to the State with a response requested within a period of 30 days.
In each of these cases, Case Nos. 12.023 (Desmond McKenzie), [7]
12.044 (Andrew Downer and Alphonso Tracey),[8]
12.107 (Carl Baker)[9] and 12.126 (Dwight Fletcher),[10]
the State delivered a response to each of the "supplementary" written
submissions, and those responses were transmitted to the Petitioners. The
Commission received several additional observations and responses from both
parties in the four cases mentioned above, each of which were transmitted to the
opposing party with a response requested within a specified period. This
included a communication from the State dated November 18, 1999 in Case 12.107
(Carl Baker), in which the State provided the Commission with the results of its
investigation into alleged violations of Articles 5(1) and 5(2) of the
Convention contained in the Petitioners' supplemental submission dated July 14,
1999. 13.
During its 102nd Period of Sessions at its Headquarters in
Washington, D.C., the Commission scheduled an oral hearing on March 1, 1999, in
Case 12.023 (Desmond McKenzie). The victim's representatives attended the
hearing and made submissions to the Commission.
The State did not attend the hearing, but rather informed the Commission
by letter dated February 19, 1999, that the State would not participate because
it was "of the view that there are no outstanding issues that would
necessitate the scheduling of such hearings." B.
Precautionary Measures
14.
Contemporaneously with the transmission of the pertinent parts of the
petitions in each of the five cases, Case 12.023 (Desmond McKenzie), 12.044
(Andrew Downer and Alphonso Tracey), 12.107 (Carl Baker), 12.126 (Dwight
Fletcher) and 12.146 (Anthony Rose), the Commission requested pursuant to
Article 29(2) of its Regulations that the State stay the execution of the
victims pending investigation by the Commission of the alleged facts. C. Friendly
Settlement 15.
By communications dated September 20, 1999 to the Petitioners and to the
State, the Commission placed itself at the disposal of the parties in these five
cases, with a view to reaching friendly settlements pursuant to Article 48(1)(f)
of the Convention on the basis of respect for the human rights recognized
therein. The Commission also
requested that the parties provide the Commission with a response to the
Commission's offers within 7 days of receipt of the communication, in default of
which the Commission would continue with consideration of these matters. 16.
In a communication dated September 24, 1999, the State informed the
Commission that it had begun the process of consultation concerning the
possibility of friendly settlement regarding each of the five cases, and that
the Commission would be advised of its response within a week. 17.
In a letter dated September 24, 1999, the Petitioners in Case Nos. 12.044
(Andrew Downer and Alphonso Tracey) and 12.146 (Anthony Rose) informed the
Commission as follows: For
the reason set out in the written petition and further submissions transmitted
to the Commission, the Applicants would ask the Commission to recommend that
their sentences of death be commuted forthwith, so that they can be removed from
the death row regime in the prison. On the basis of respect for the human
rights recognized in the [Convention], and the allegation that the Applicants'
executions would now violate Articles 4, 5, 8 and 24 of the [Convention], the
commutation of Messrs. Downer, Tracey and Rose's sentences of death is the only
appropriate way of reaching a friendly settlement in this matter. Should
the State Party undertake to commute the Applicants' sentences of death, the
Applicant would consider that a friendly settlement pursuant to Article 48(1)(f)
of the Convention has been reached. 18.
Additionally, in a letter dated September 27, 1999, the Petitioners in
Case 12.126 (Dwight Fletcher) indicated that they welcomed the Commission's
offer to hold a friendly settlement meeting, and looked forward to receiving
details of the proposed meeting. 19.
By communication dated September 28, 1999, the Commission transmitted the
pertinent parts of the Petitioners' responses in these cases to the State, with
a response requested within 7 days. 20.
By letter dated October 7, 1999, the State informed the Commission that
the Petitioners' responses to the Commission's friendly settlement offers in two
of the cases "make it clear that there is no common ground for the success
of a friendly settlements [sic] procedure." Accordingly, the State
indicated that it looked forward to an "early conclusion of [the
Commission's] deliberations on these five (5) cases, in accordance with Article
50 of the Inter-American Convention on Human Rights". D. Jamaican
Governor General's instructions 21. The Commission wishes to note that in each of the cases that are the subject of this Report, the Petitioners allege violations of Articles 4, 5 and 25 of the Convention and the Commission’s Regulations in relation to the "Instructions for dealing with applications from or on behalf of prisoners under sentence of death to the United Nations Human Rights Committee or the Inter-American Commission on Human Rights", issued by Jamaica's Governor General (hereinafter referred to as the "Governor General's Instructions").[11] The Governor General's Instructions designated limits on the time period during which a prisoner was permitted to petition the Inter-American Commission on Human Rights and the United Nations Human Rights Committee.[12] The Instructions also placed time limits on when the Governor General was required to receive the prisoner's petition and a request for stay of execution.[13] Additionally, the Governor General's Instructions purported to prescribe a period of six months for the Commission and the Committee to investigate and rule on the prisoner's petition, and for the Governor General to advise the Jamaican Privy Council on the outcome of the petition.[14] 22.
On July 5, 1999, several Petitioners informed the Commission that the
Jamaican Court of Appeal had issued a decision on June 15, 1999, with respect to
the lawfulness of Jamaica's Governor General’s Instructions.[15]
In Neville Lewis v. Attorney
General for Jamaica et al. (hereinafter referred to as "Neville
Lewis"), the Jamaican Court of Appeal determined that the Governor
General’s Instructions were unlawful as a matter of Jamaica's domestic law.
On page 11 of its decision the Court of Appeal declared that: …even though the recommendations of the
[Inter-American] Commission are not binding on the Governor General in the
exercise of the Prerogative of Mercy, given the terms of the treaty which the
government ratified, the Privy Council ought to await the result of the
petition, so as to be able to give it consideration in determining whether to
exercise the Prerogative of Mercy. Subsequently,
on page 18 of its decision, the Court of Appeal found that "…to issue
Instructions calling upon the [Inter-American] Commission to complete its
process in 6 months or about 180 days, is in my view disproportionate, and
consequently unlawful." 23.
In its submission to the Commission concerning Case 12.044 (Andrew Downer
and Alfonso Tracey), the State acknowledged the Court of Appeal's decision in Neville
Lewis and indicated that: the
law in Jamaica is that the 1997 Governor General's Instructions are unlawful.
The applicants therefore, could not be executed pursuant to those Instructions,
unless the Instructions were amended or if the Privy Council were to overrule
the Lewis decision.[16]
24.
As the Instructions in their
current form do not have any legal effect in Jamaica, and as they do not affect
the cases currently under consideration by the Commission, the Commission does
not consider it necessary to address the submissions of the Petitioners or the
State concerning the validity of the Instructions under the Convention and the
Commission's Regulations. III.
POSITIONS OF THE PARTIES
A.
Positions of the petitioners
1. Background to
the cases 25.
The following Table 3 summarizes the domestic criminal proceedings of the
victims in the five cases before the Commission: Table
3
26.
The pertinent background facts of these five cases, together with the
categories of violations of the Convention raised in each case, are outlined
below. Desmond
McKenzie (Case 12.023) 27.
Desmond McKenzie was arrested and charged with the murder of the
deceased, Fitzroy Dawson, on October 19, 1993.
Mr. McKenzie was originally tried from April 22, 1995 to May 4, 1995,
however, the jury was unable to reach a majority decision.
A re-trial was held beginning March 13, 1996, and on April 2, 1996, Mr.
McKenzie was convicted of capital murder in the furtherance of burglary and
terrorism and sentenced to death. Mr.
McKenzie subsequently appealed his conviction to the Court of Appeal, and his
appeal was dismissed on October 13, 1997. He
then petitioned the Judicial Committee of the Privy Council, and the Privy
Council dismissed his petition on June 25, 1998. 28.
The prosecution alleged that Mr. McKenzie was responsible for breaking
and entering into the home of the deceased, Fitzroy Dawson, and his wife, Levina
Miller, and causing the deceased's death during the evening of October 18, 1993.
Mr. McKenzie was alleged to have visited the home of Ms. Miller and the deceased
on the day of the murder, where Mr. McKenzie and the deceased argued and the
deceased insulted Mr. McKenzie. Mr. McKenzie left, but returned to the home
later the same evening, broke into the house, and shot the deceased. He then
threw the deceased's body into the river. 29.
In his defense, Mr. McKenzie claimed that he was driving home on the
evening of the offense when a woman with a baby waved him down. When he stopped, two men ran out of a house, one with a
bottle and the other with a machete. The
victim was hit with the bottle, fired two shots in self defense, and one of the
men stumbled into the river. During his re-trial, Mr. McKenzie gave evidence
concerning his good character. He testified that he owned a supermarket and
managed a clothing business, his father's farm and a warehouse business. He also
claimed to have promoted community youth projects, assisted the elderly and
local schools, and had standing as a local politician. The victim had no
previous criminal record. A teacher, who was also a justice of the peace, was
present at the re-trial to give character evidence on the victim's behalf. 30.
The violations of the Convention alleged on behalf of Mr. McKenzie can be
categorized as follows: 1) violations of Articles 4(3), 4(6), 5(1) and 24
relating to the mandatory nature of the death penalty under the Offences
Against the Person Act and the process for granting of amnesty, pardon or
commutation of sentence in Jamaica; 2) violations of Articles 4 and 5 relating
to the victim's conditions of detention and his time in detention; 3) violations
of Articles 7(5) and 7(6) relating to delays in the victim's criminal
proceedings; 4) violations of Articles 8(1) and 8(2) relating to the trial
judge's lack of impartiality and the inadequacy of the victim's legal
representation; and 5) violation of Article 25 relating to the unavailability of
legal aid for Constitutional Motions in Jamaica. Andrew Downer and
Alphonso Tracey (Case 12.044) 31.
Mr. Downer and Mr. Tracey were charged with the March 4, 1991 murder of
Kenneth McNeil. Mr. Downer was
arrested on April 30, 1991, and Mr. Tracey was arrested May 4, 1991. Their joint
trial commenced December 14, 1994, and they were convicted of murder in the
course or furtherance of terrorism and robbery on December 21, 1994, and
sentenced to death. The victims
subsequently appealed their convictions to the Court of Appeal of Jamaica, and
their appeals were dismissed on May 27, 1996. The victims then petitioned the
Judicial Committee of the Privy Council on October 18, 1996. The victims were granted leave to appeal, however, the Privy
Council dismissed their appeals on July 20, 1998. 32.
The prosecution alleged that on March 4, 1991, the deceased, Kenneth
McNeil, was working as a security guard with his co-worker Christian Riley. Mr.
McNeil and Mr. Riley were collecting computer papers from bank safe deposit
boxes when they noticed a car with four men pull alongside their van. The men in
the car began to shoot at Mr. McNeil and Mr. Riley. Mr. McNeil and Mr. Riley
returned fire, and Mr. Riley was shot in the shoulder. Mr. Riley then ran for
cover and was shot twice in the back. Looking back from where he was lying, Mr.
Riley saw two men exiting the car, approach Mr. McNeil and "sandwich"
him on the sidewalk. Mr. Riley saw
one man point a gun at Mr. McNeil and heard shots, and then heard the car drive
off. Mr. Riley was not certain
whether one or both of the men shot Mr. McNeil. Three months after the incident,
Mr. Riley identified the victims in an identification parade as the two men he
saw exiting the car. Mr. Riley was the prosecution's principal witness at the
victims' trial. 33.
In their defense, the victims made unsworn statements from the dock. Mr.
Tracey alleged that he was at a hotel on the night of the murder. He also
alleged that his identification at the identification parade in June 1991 was
unfair and that he was innocent. Mr. Downer alleged he was held up by a gunman
and shot during an attempted robbery on the night of the murder. He denied any
involvement in the crime. 34. The violation |