Hilaire Case, Judgment of September 1, 2001, Inter-Am Ct. H.R. (Ser. C) No. 80 (2001).
In the Hilaire case,
the
Inter-American Court of Human Rights (hereinafter “the Inter-American Court”,
“the Court” or “the Tribunal”), composed of the following judges:*
Antônio A. Cançado Trindade,
President;
Máximo Pacheco-Gómez,
Vice-President;
Hernán Salgado-Pesantes, Judge;
Alirio Abreu-Burelli, Judge;
Sergio García-Ramírez, Judge, and
Carlos Vicente de Roux-Rengifo,
Judge;
also
present,
Manuel E. Ventura-Robles, Secretary,
and
Pablo Saavedra-Alessandri, Deputy
Secretary;
pursuant
to Article 36(6) of its Rules of Procedure[1]
(hereinafter “the Rules of Procedure”), delivers the following judgment on the
preliminary objection filed by the State of Trinidad and Tobago (hereinafter
“the State” or “Trinidad and Tobago”).
I
INTRODUCTION
OF THE CASE
1) The present case was submitted to the
Court by the Inter-American Commission on Human Rights (hereinafter “the
Inter-American Commission” or “the Commission”) on May 25, 1999. The Commission’s application originates from
petition number 11,816 (Haniff Hilaire), received by its Secretariat on October
9, 1997.
II
FACTS SET
FORTH IN THE APPLICATION
2) The Inter-American Commission set forth
in its application the facts on which it is based. In the following paragraphs, the Court summarizes the facts and
claims relevant to the consideration of the preliminary objection:
The
State of Trinidad and Tobago has violated the American Convention on Human
Rights (hereinafter “the American Convention” or “the Convention”) by sentencing Mr. Haniff Hilaire
(hereinafter “Mr. Hilaire”) to a “mandatory death penalty”, thereby violating his rights under Articles:
4(1), 5(1), 5(2), 5(6), 7(5) and 25; all in relation to Article 1(1) of the
Convention. The State is also in breach
of Article 2, which requires the
State to adopt such legislative and other measures as may be necessary to give
effect to the rights and freedoms guaranteed in the Convention, in relation to Article 25 of the same (infra 16).
The
Inter-American Commission supports its statements, inter alia, with the following facts:
a) On
May 29, 1995, Mr. Hilaire was convicted,
together with his two
co-defendants, Mrs. Indravani Ramjattan and Mr. Denny Baptiste, of the murder
of Mr. Alexander Jordan on February 13, 1991. This conviction was delivered by
the First Criminal Court of Port of Spain (Assizes), Trinidad and Tobago;
b) Mr.
Alexander Jordan was the common-law husband of Mrs. Indravani Ramjattan, who
“according to the record”, was the victim of spousal abuse at the hands of Mr.
Jordan;
c) “Owing
in part to the abusive nature of the marriage”, a relationship developed
between Mrs. Ramjattan and Mr. Baptiste, and she became pregnant with his
child. When her husband discovered
this, he further abused her and, as a result, she fled her house with their two
children and moved to Mr. Baptiste’s home.
Mr. Hilaire was also living with Mr. Baptiste and, during her time with
the two, Mrs. Ramjattan confided in them about the abusive relationship to
which she was subjected;
d) Mr.
Jordan subsequently discovered where his wife was, broke into Mr. Baptiste’s
home and took her back to his house, where he held her as a virtual
hostage. Mrs. Ramjattan was able to
send a message to Mr. Hilaire, imploring him to rescue her. Consequently, Messrs. Hilaire and Baptiste
went to Mr. Jordan’s house “with the intent to beat him”. The beating had
consequences much more severe than anticipated, and Mr. Jordan died as a result
thereof;
e) The
record discloses no evidence that Mr. Hilaire had a prior criminal record or a
tendency to re-offend;
f) Mr.
Hilaire and his co-defendants were found guilty of murder under the Trinidad
and Tobago Offences Against the Person
Act and, on May 29, 1995, the trial judge “was required to impose upon the
defendants the sentence of death” pursuant to section 4 of the said Act, and
stated: “The jury has found each of you
guilty of murder. The sentence of this
Court upon each of you is that you be taken from this place to a lawful prison
and there to a place of execution and that you will there suffer death by
hanging, and may the Lord have mercy upon your souls”;
g) On
May 29, 1995, Mr. Hilaire applied for leave to appeal his conviction to the
Court of Appeal of Trinidad and Tobago.
This application was dismissed on November 7, 1996. On October 30, 1997, Mr. Hilaire filed a
petition for special leave to appeal his conviction to the Judicial Committee
of the Privy Council in London, which dismissed it on November 6, 1997. Mr.
Hilaire filed a second petition for special leave to appeal to the Judicial
Committee of the Privy Council in London on or about January 25, 1999. This second petition was also dismissed on
February 3, 1999;
h) The
Offences Against the Person Act
provides a definition of “murder”, permits a jury to consider certain
circumstances of a killing in determining whether the offender ought to be
found guilty of murder or of a lesser offence, mandates the imposition of the
death penalty on an offender found guilty of murder, but does not permit a
judge or jury to consider the personal circumstances of an offender or his or
her offence;
i) The
Constitution of Trinidad and Tobago provides for an Advisory Committee on the
Power of Pardon, which is charged with considering and making recommendations
to the Minister of National Security as to whether an offender sentenced to
death ought to benefit from the President’s discretionary power of pardon under
the said Constitution. No criteria are
prescribed in law for the exercise of the Committee’s functions or the
President’s discretion, and the offender has no legal right to make submissions
to the Committee to present, receive or challenge evidence the Committee
chooses to take into account. The exercise of the power of pardon is an act of
clemency not a matter of legal right, and therefore not subject to judicial
review.
III
PROCEEDING BEFORE THE
COMMISSION
3) On October 9, 1997, the British firm of
Solicitors, Simmons & Simmons (hereinafter “the petitioners”), presented to
the Commission a petition against Trinidad and Tobago on behalf of Mr. Haniff
Hilaire. On October 16, 1997, the Commission
opened case No. 11,816, sent the State the pertinent parts of the petition and
requested a reply. The Commission also requested the State,
pursuant to Article 29(2) of its Rules of Procedure, to stay the execution of Mr. Hilaire, until such
time as the Commission had an opportunity to examine the case and issue a
decision.
4) On October 30, 1997, the petitioners
informed the Commission that they were awaiting a decision by the Judicial
Committee of the Privy Council on Mr. Hilaire’s application for special leave to appeal. On November 6 of the same year, the
petitioners informed the Commission that leave to appeal to the Privy Council
had been refused.
5) On
December 19, 1997, the State submitted its observations on the petition, making
reference to the merits. On January 12, 1998, these observations were
transmitted to the petitioners, who filed their own observations on February 25
of the same year. On March 16, 1998,
the Commission forwarded the petitioners’ observations to the State and requested
a reply.
6) Also
on December 19, 1997, the petitioners supplied the Commission with a
supplementary written submission providing further evidence, case law and other
information in support of the admissibility of the petition, and specified the
relief sought on behalf of Mr. Hilaire.
The communication was forwarded to the State on January 12, 1998 and it
presented its rejoinder on April 1, of the same year. This rejoinder was transmitted to the petitioners on May 13,
1998. On June 24, 1998, the petitioners
filed their observations and these were transmitted to the State on July 13,
1998, accompanied by a request for a reply.
7) On September 25, 1998, the Commission
issued Report No. 43/98, in which it concluded that the petition was
admissible. On October 23 of the same
year, the Commission forwarded this Report to the State and the petitioners,
and placed itself at their disposal with a view to seeking a friendly
settlement of the matter.
8) On September 28, 1998, the petitioners
presented a second supplementary written submission, which was transmitted to
the State on October 6 of the same year, with a request for a reply.
9) On
or about February 12, 1999, the petitioners delivered a third supplementary
written submission with appendices, and on or about March 12 of the same year,
they delivered additional written submissions to the Commission. On April 5, 1999, the Commission forwarded
the pertinent parts of the additional written submissions to the State with a
request for observations. The State did
not respond to this request.
10) On April 21, 1999, the Commission adopted
the Report on the merits No. 66/99, which it transmitted to the State on April 26, 1999. In the operative part
of the said Report, the Commission recommended that the State:
(I)
Grant the petitioner an effective remedy which includes
consideration for an early release or commutation of sentence and compensation;
(II)
Adopt such legislative or other measures as may be
necessary to insure that the death penalty is imposed in compliance with the
rights and freedoms guaranteed under the Convention; [and]
(III)
Adopt such legislative or other measures as may be
necessary to ensure that the right under Article 7(5) of the Convention to
trial within a reasonable time or to be released is given effect in Trinidad
and Tobago, including effective recourse to a competent court or tribunal for
protection against acts that violate that right.
11) On May 18, 1999, the State delivered to
the Commission its response to this
Report.
12) On
May 23, 1999, the Inter-American Commission, pursuant to Article 51 of the
American Convention, decided to submit the case to the Court.
IV
PROVISIONAL MEASURES[2]
13) On July 10, 1998, prior to the submission
of the application, the Commission requested that the Court expand the
provisional measures that had been ordered by the President in the matter of James et al. on May 27, 1998, and ratified by the Court on June 14 of the
same year, in order to include Mr. Hilaire in such provisional measures. The Commission considered that the
circumstances of Mr. Hilaire were similar to those of the other inmates to whom
the existing Order for provisional measures in Trinidad and Tobago applied, and
that because Mr. Hilaire’s execution was imminent, he was particularly
vulnerable to irreparable harm.
14) On July 13, 1998, the President of the
Court (hereinafter “the President”) ordered the State, inter alia, to take all measures necessary to preserve Mr.
Hilaire’s life so that the Court could examine the pertinence of the
Commission’s request for extension of the provisional measures. On August 29, 1998, the plenary of the Court
ratified the President’s Order of July 13, 1998 in relation to Mr. Hilaire,
among others[3].
15) As
of this date, the State has presented the relevant reports with respect to the
situation of Mr. Hilaire and the Commission has delivered its observations on
the State’s reports.
V
PROCEEDING BEFORE THE COURT
16) On
May 25, 1999, the Inter-American Commission filed its application in the
following terms:
The
Inter-American Commission on Human Rights respectfully petitions the Honorable
Inter-American Court of Human Rights to declare violations of the Convention by
the State, establish reparations for those violations, and determine costs and
expenses to be paid to the representatives of the victims.
A.
Declarations
of violations
The
Inter-American Commission on Human Rights respectfully petitions the Honorable
Inter-American Court of Human Rights to:
Find that
the Republic of Trinidad and Tobago is responsible for violating Mr. Hilaire’s
right:
(I)
not to be arbitrarily deprived of his life in violation of
Article 4(1) of the American Convention.
(II)
to have his physical, mental and moral integrity respected
in violation of Article 5(1) of the American Convention.
(III)
not to be subjected to cruel, inhumane, or degrading
punishment or treatment in violation of Article 5(2) of the American
Convention.
All in
conjunction with a violation of Article 1(1) of the American Convention;
Find that
the State of Trinidad and Tobago is responsible for violating Article 5(6), in
conjunction with Article 1(1) of the American Convention, by failing to have as
an essential aim of Mr. Hilaire’s punishment his reform and social
readaptation;
Find that
the State of Trinidad and Tobago is responsible for violating the right of Mr.
Haniff Hilaire to be tried within a reasonable time or to be released, contrary
to Article 7(5), in conjunction with Article 1(1) of the American Convention;
Find that,
by failing to adopt legislative or other measures necessary to give effect to
the right to be tried within a reasonable time or to be released under Article
7(5) of the Convention, the State of Trinidad and Tobago has violated its
obligation under Article 2 to provide the Convention with domestic legal
effect, as well as Mr. Hilaire’s right to judicial protection under Article 25,
in conjunction with Article 1(1) of the Convention.
B.
Reparations
The
Inter-American Commission on Human Rights respectfully petitions the Honorable
Inter-American Court of Human Rights to:
Direct that
the State of Trinidad and Tobago grant the petitioner an effective remedy which
includes early release or commutation of sentence and compensation;
Direct that
the State of Trinidad and Tobago adopt such legislative or other measures as may
be necessary to ensure that the death penalty is imposed in compliance with the
rights and freedoms guaranteed under the Convention;
Direct that
the State of Trinidad and Tobago adopt such legislative or other measures as
may be necessary to ensure that the right under Article 7(5) of the Convention
to trial within a reasonable time or to be released is given effect in Trinidad
and Tobago, including effective recourse to a competent court or tribunal for
protection against acts that violate that right.
C.
Compensation
The
Commission has requested that the Honorable Court require the State of Trinidad
and Tobago to remedy the consequences of the violations which are the subject
of this application.
Article
63(1) of the American Convention provides:
If the Court finds that there has been a violation of a
right or freedom protected by this Convention, the Court shall rule that the
injured party be ensured the enjoyment of his right or freedom that was
violated. It shall also rule, if
appropriate, that the consequences of the measure or situation that constituted
the breach of such right or freedom be remedied and that fair compensation be
paid to the injured party.
This
Honorable Court has stated that Article 63(1) of the Convention codifies a rule
of customary law and constitutes one of the fundamental principles of customary
law (Aloeboetoe Case, Judgment of
September 10, 1993, para. 43). The
obligation to repair a breach may give rise to a number of measures to remedy
the consequences. The State must, to
the extent possible, reestablish the statu
quo ante, which in the present case could be achieved by commuting the
complainant’s death sentence and adjusting the domestic law of Trinidad and
Tobago accordingly. Where
reestablishing the statu quo ante is
no longer possible, the consequences must be remedied through other means. The Commission therefore seeks to obtain a
decision of the Court as to the compensation owing to the victim as a result of
the State’s violation of his rights under the Convention.
D.
Costs
and expenses
The
Commission seeks a determination from the Court respecting the costs and
expenses incurred by the representatives of the victims during the processing
of the case before the domestic courts and the organs of the Inter-American
system.
17) The
Commission appointed Messrs. Jean Joseph Exumé, Robert K. Goldman and Nicholas
Blake as delegates, and as legal advisors Messrs. David J. Padilla and Brian D.
Tittemore. The Commission also
designated Messrs. Peter Carter, Owen Davies and Mrs. Andrea Dahlberg as
assistants.
18) On
June 11, 1999, the Secretariat of the Court (hereinafter “the Secretariat”),
following the preliminary examination of the application by the President of
the Court, notified the State of the application and its annexes. On the same
day, the Secretariat, following instructions of the President, informed the
State of its right to designate an ad hoc
judge, pursuant to Articles 18 of the Rules of Procedure and 10(3) of the
Statute of the Court (hereinafter “the Statute”).
19) On
August 16, 1999, Trinidad and Tobago submitted a preliminary objection to the
compulsory jurisdiction of the Court in this case and requested a two-month
extension in order to present its legal arguments. It also requested the Court to convene a special hearing on the
preliminary objection in accordance with Article 36(6) of the Rules of
Procedure and to suspend proceedings on the merits until the Court rendered a
judgment on the preliminary objection.
20) On
August 19, 1999, the Secretariat acknowledged receipt of the State’s
communication of August 16 and informed the State and the Commission that the
President of the Court had granted an extension until October 15, 1999, in
order for Trinidad and Tobago to present its legal arguments with respect to
the submitted preliminary objection. At
this time, the Court advised that the State’s request for a special hearing and
suspension of the proceedings would be considered in its XLV Regular Period of
Sessions.
21) On
October 1, 1999, the Court issued an Order in the following terms:
1. To grant the Republic of Trinidad
and Tobago an extension for the presentation of its Reply to the Application in
the Hilaire Case until December 15, 1999, due to the particular circumstances
of the [...] case.
2. To decline the request of the Republic of Trinidad and
Tobago for a postponement of the proceedings on the merits of the Hilaire Case
until the preliminary objection has been decided.
3. To continue the consideration of the Hilaire Case in its
current procedural stage.
4. To commission the President of the
Inter-American Court of Human Rights to summon the Republic of Trinidad and
Tobago and the Inter-American Commission on Human Rights in due course to a
public hearing on the preliminary objection in the Hilaire Case, to be held at
the seat of the Inter-American Court of Human Rights.
22) On
October 15, 1999, the State presented its legal arguments with respect to the
preliminary objection to the Court’s jurisdiction in the instant case.
23) On
October 20, 1999, the Secretariat of the Court transmitted to the
Inter-American Commission the State’s arguments in relation to the preliminary
objection. The Commission responded on
November 19, 1999.
24) On
June 16, 2000, the President of the Court resolved to convene the parties to a
public hearing, to take place at the seat of the Court on August 10, 2000, to
hear the arguments on the preliminary objection.
25) The
public hearing was held at the seat of the Court on the established date.
There appeared:
for the Republic of Trinidad and Tobago
Russell
Martineau, S.C.;
Howard
Stevens, Barrister; and
Peter
Pursglove, Barrister and Attorney-at-Law, Legal Adviser in the Ministry
of the Attorney General and Legal
Affairs.
for the Inter-American Commission on Human Rights
Robert
K. Goldman, Delegate;
Nicholas
Blake Q.C., Delegate; and
Brian
Tittemore, Legal Advisor.
26) On
May 7, 2001, the Secretariat received from the Commission copies of two
decisions pertinent to cases on the imposition of the “mandatory death
penalty”, issued by the United Nations Human Rights Committee and the Court of
Appeals for the Eastern Caribbean.
These decisions were transmitted to the State on May 15, 2001. On December 13, 1999 and August 10, 2000,
Messrs. Vaughan Lowe and Carlos Vargas Pizarro, respectively, also filed amicus curiae briefs.
VI
JURISDICTION
27) Trinidad and Tobago deposited its
instrument of ratification to the American Convention on May 28, 1991. On the same date, the State recognized the
compulsory jurisdiction of the Court.
28) On May 26, 1998, Trinidad and Tobago
denounced the Convention and, pursuant to Article 78 of the same instrument,
this denunciation took effect one year later, on May 26, 1999. The facts, to which the instant case refers,
occurred prior to the effective date of the State’s denunciation. Consequently, the Court has jurisdiction,
under the terms of Articles 78(2) and 62(3) of the Convention, to entertain the
present case and render a judgment on the State’s preliminary objection.
VII
PRELIMINARY
OBJECTION:
INADMISSIBILITY
OF THE COMPLAINT AND LACK OF JURISDICTION OF THE COURT
29) In
its preliminary objection, Trinidad and Tobago sustained that the
Inter-American Court does not have jurisdiction to hear the case in light of
three main arguments:
I. The application in so far as it alleges a breach of
Article 4(1) of the American Convention on Human Rights is inadmissible for
breach of Article 46(1)(b) of the Convention.
II. The State’s second reservation precludes any jurisdiction
of the Court in this case.
III. Alternatively, the State has never recognised the
jurisdiction of the Court.
30) The
Court will consider the arguments presented by the State in the case sub judice.
A.
INADMISSIBILITY OF THE COMPLAINT
Written arguments
of the State
31) The
State notes that Article 46 of the American Convention establishes that:
1. Admission by the Commission of a petition or
communication lodged in accordance with Articles 44 or 45 shall be subject to
the following requirements:
[…]
b. that the petition or communication
is lodged within a period of six months from the date on which the party
alleging violation of his rights was notified of the final judgment[.]
32) According
to Trinidad and Tobago, one of the allegations in the Commission’s application
states that the imposition of the death penalty in the present case constituted
a violation of Article 4(1) of the Convention.
This argument was not presented in the original petition or in the
complementary petition lodged by the petitioner before the Commission, but
rather in a “second supplementary petition” lodged before it on September 28,
1998.
33) This “second supplementary petition” was
presented ten months after the final domestic judgment, and therefore outside
the six-month time period provided for in Article 46(1)(b) and after the
Commission’s September 25, 1998 Report on the admissibility of the petition and
complementary petition. It also
contains an argument that the petitioner could have presented in his petition
and his complementary petition and, as a result, the allegation in reference to
Article 4(1) of the Convention is in breach of Article 46(1)(b) of the
same. For the aforementioned reasons,
this should be considered a separate petition requiring a separate decision on
admissibility. Moreover, the State
indicated that the date of the Privy Council’s dismissal of Mr. Hilaire’s
petition and the date accepted by the Commission as the date of the final
judgment was November 6, 1997. As a
result, the six-month time period to present the petition before the Commission
expired on May 5, 1998.
Written arguments
of the Commission
34) The
Inter-American Commission contended that the State should be estopped from raising issues of admissibility
in the instant case because, during the proceedings before the Inter-American
Commission, Trinidad and Tobago “waived its right to challenge the
admissibility of the petition based upon the exhaustion of domestic remedies
rule and submitted its observations on the merits of the case”. It alleged that the circumstances in which
the Commission determined a violation of Article 4(1) conformed to the
Convention and the Commission’s Statute and Rules of Procedure.
35) When
the petitioners presented their complaint before the Commission, they did not
state a specific violation of Article 4(1).
However, in the “second supplementary petition” of September 28, 1998,
the petitioners alleged a violation of Article 4(2) of the Convention with
respect to Mr. Hilaire. It was the
Commission, through its Article 50 Report, that determined that the State had
violated Article 4(1) of the Convention, based on the petitioner’s original
complaint, and for this reason the violation should be considered by the Court.
36) The Commission considered that the
six-month period stipulated in Article 46(1)(b) of the Convention is not
applicable to the breach of Article 4(1) because the domestic legislation of
the State does not provide due process for the protection of rights that have
been violated. This is the case because
Article 46(2)(a) of the Convention establishes that the provisions of
paragraphs 1(a) and 1(b) of the above mentioned article shall not be applicable
when “the domestic legislation of the State concerned does not afford due
process of law for the protection of the right or rights that have allegedly
been violated.”
37) In
the instant case, the Commission determined a violation of Article 4(1) of the
Convention based on the fact that Mr. Hilaire was sentenced to a “mandatory
death penalty”. Article 6 of the
Constitution of Trinidad and Tobago[4]
hinders individuals from challenging laws that were part of the domestic
legislation of Trinidad and Tobago before the Constitution entered into
force. The “mandatory death penalty”
for the crime of murder was part of the law of Trinidad and Tobago before the
Constitution went into effect and for this reason is not open to challenge
before the courts.
Oral arguments of
the State
38) In the public hearing held before the
Court, Trinidad and Tobago refuted the arguments presented by the Commission in
its written memorial. The State
indicated that the doctrines of waiver and estoppel
do not apply in the instant case because the “second complementary petition”
was submitted outside the six-month time limit. It also alleged that although the Commission had determined the
admissibility of the complaint based on the first petition, it had determined
that there was a violation of Article 4(1) based on the “second supplementary
petition.” Finally, it stated that in
Trinidad and Tobago there exists due process under the law and that the State’s
Constitution provides for the right to not be arbitrarily deprived of life.
Oral arguments of
the Commission
39) At
the said hearing, the Commission stated that the six-month rule with respect to
exhaustion of domestic remedies established in Article 46(1)(b) could be waived
expressly or implicitly. In the instant
case, the State did not object to the admissibility of the petition and, by its
conduct it should be considered to have irrevocably waived its right to do so
and hence should be estopped from
disputing the admissibility before the Court.
In the same manner, the Commission indicated that, in accordance with
the Convention, the petitioner needed only to present the facts or the
situation which constituted a possible violation of his rights; he was not
obligated to name the specific articles which were considered violated. Finally, the Commission argued that the
domestic law of Trinidad and Tobago does not provide due process of law for the
protection of rights alleged to have been violated and that the “mandatory
death penalty” for the crime of murder could not be challenged before the
courts under the Constitution of the State.
Considerations
of the Court
40) Article
46(1) of the American Convention establishes the necessary requirements for a
petition to be admitted by the Inter-American Commission. Article 32 of the Commission’s Rules of
Procedures, in effect at the time when the complaint was initially lodged,
lists the elements that the petition must contain at the time of its
presentation. Neither Article 46(1) nor
Article 32 establishes that the petitioners must specify the articles they
consider to have been violated.
Moreover, Article 32(c) of the Commission’s Rules of Procedure[5]
allows for the possibility that “no specific reference [be] made to the
article(s) alleged to have been violated” and, paragraph (b) of the said
Article 46 refers to a deadline for the lodging of the complaint.
41) In
their original application the petitioners set out the facts on which they
based their claims of violations of the Convention. They were under no legal obligation to specify which precise
provisions of the Convention were violated in order to justify their
complaint. In subsequent submissions
they made reference to the same facts, adding certain legal
considerations. In sum, the original
petition contained all the facts that might be relevant for the purposes of a
legal determination.
42) For this reason, and in the light of the guarantees contained
in the American Convention on Human Rights, as well as the Rules of Procedure
and Statutes governing the organs of the Inter-American system, the Court is of
the opinion that the proper interpretation is that, when there are additional
arguments, with respect to rights, on the same essential facts as are pleaded
in the petitioner’s original complaint, such a pleading cannot be dismissed for
the mere failure to invoke a specific article of the Convention. Article 32(c) of the Commission’s Rules of
Procedure, in effect when the complaint was lodged before it, expressly allows
for the possibility that “no specific reference [need be] made to the
article(s) alleged to have been violated” in order for a complaint to be
processed before it. Therefore, the
Court dismisses the first argument of the State’s preliminary objection
regarding the inadmissibility of the complaint.
B. LACK OF JURISDICTION OF THE COURT
Written arguments of the State
43) As
previously stated by Trinidad and Tobago, the State deposited its instrument of
adherence of the Convention on May 28, 1991, dated April 3, 1991, recognizing
the compulsory jurisdiction of the Court, but subjected this recognition to a
“reservation.” The State’s
“reservation” reads that
[a]s regards Article 62 of the
Convention, the Government of the Republic of Trinidad and Tobago, recognizes
the compulsory jurisdiction of the Inter-American Court of Human Rights, as
stated in the said article, only to such extent that recognition is consistent
with the relevant sections of the Constitution of the Republic of Trinidad and
Tobago; and provided that Judgment of the Court does not infringe, create or
abolish any existing rights or duties of any private citizen.
44) The State indicated that Article 75 of
the Convention declares that it can only be subject to reservations in
conformity with the provisions of the Vienna
Convention on the Law of Treaties signed on May 23, 1969 (hereinafter “the
Vienna Convention”). In this respect, Article 19 of the same provides
[a] State
may, when signing, ratifying, accepting, approving or acceding to a treaty,
formulate a reservation unless:
a) the reservation is prohibited by the
treaty;
b) the treaty provides, that only
specified reservations, which do not include the reservation in question, may
be made; or
c) in cases not falling under subparagraphs (a) and (b),
the reservation is incompatible with the object and purpose of the treaty.
45) The State also mentioned that in its
Advisory Opinion on The Effect of
Reservations on the Entry into Force of the American Convention on Human Rights
(OC-2/82), the Court had stated that the reference in Article 75 to the
Vienna Convention was intended to be a reference to paragraph (c) of Article 19
of the Vienna Convention and “makes sense only if it is understood as an
express authorization designed to enable States to make whatever reservations
they deem appropriate, provided the reservations are not incompatible with the
object and purpose of the treaty. As
such they can be said to be governed by Article 20(1) of the Vienna Convention
and, consequently, do not require acceptance by any other State party” [6].
46) The
State argued that its “reservation” was made relative to its acceptance of the
Court’s jurisdiction and is limited to Article 62 of the American
Convention. According to Trinidad and
Tobago, Article 62 of the Convention is an optional clause that States can
freely “accept or reject”. Those States
that accept and so declare are expressly authorized to do so subject to
conditions. The Convention permits
restrictions at the moment of acceptance of the Court’s jurisdiction under
Article 62, which does not affect the enjoyment or exercise of the rights and
liberties recognized in the Convention.
Consequently, given that the “reservation” does not deny the exercise of
any of the rights provided for in the Convention, it can be considered
compatible with the object and purpose of the same.
47) Trinidad and Tobago contended that the
American Convention does not contain a provision parallel to Article 64(c) (sic) of the European Convention[7]
and that, in fact, the framers of the American Convention preferred to follow
the provisions of the Vienna Convention on the Law of Treaties, which “does not
prohibit” (sic) reservations of a
general character.
48) The
State added that the Constitution of Trinidad and Tobago is and was, at the
moment of ratification of the Convention, compatible with the same. It argued that its “reservation” cannot be
interpreted as contrary to the object and purpose of the Convention because the
“reservation” is only related to the optional procedure contained in Article 62
of the Convention, which in no way affects the substantive rights guaranteed in
the Convention. The “reservation,” as
presented, it argued, does not restrict the obligations assumed by the State
under the Convention in relation to individuals within its jurisdiction.
49) Trinidad and Tobago also maintained that,
if the Court declares the State’s Article 62 “reservation” incompatible with
the object and purpose of the American Convention, the effect of such a
determination would be to render the State’s declaration accepting the Court’s
compulsory jurisdiction null and void ab
initio.
50) The State added that the International
Court of Justice, in its Advisory Opinion on
Reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide (1951),
indicated that
[…] if a party to the Convention
objects to a reservation which it considers to be incompatible with the object
and purpose of the Convention, it can in fact consider the reserving State is
not a party to the Convention […]
51) The State indicated that, in its legal
system, it is the Legislative Power that makes the laws. The Executive cannot, at the moment of
ratification of a treaty, alter the laws of the Republic and create a
constitutional breach. For this reason,
the Executive, at the time of accession to the Convention and acceptance of the
compulsory jurisdiction of the Court, formulated the “reservation” under
Article 62. In this same manner, the
State denounced the Convention in May of 1998, in virtue of the need to observe
the provisions of the Constitution of the Republic of Trinidad and Tobago.
52) If
the “reservation” of the State were, for any reason, considered invalid, it
would not mean that the State declared its unlimited acceptance of the
compulsory jurisdiction of the Court.
On the contrary, it is clear that the State never intended to accept, in
its totality, the jurisdiction of the Court.
If the “reservation” is invalid, then the declaration was invalid, and
the State never made a declaration.
Written
arguments of the Commission
53) The
Commission sustained that the impugned term in the State’s declaration of
acceptance of the Court’s jurisdiction should be considered invalid because it
is impossible to determine its exact nature or scope. It is excessively vague and should not be interpreted in a manner
that affects the Court’s jurisdiction to decide cases against the State. If a
meaning is to be attributed, it should be interpreted in a manner that limits
the legal effects of the Court’s judgments, and not the Court’s jurisdiction to
decide cases against the State.
54) The Commission indicated that the United
Nations Human Rights Committee has stated that reservations to human rights
treaties must be specific and transparent so that courts, individuals under the
jurisdiction of a reserving State, and other States parties can know which
human rights obligations have or have not been undertaken. The term contained in the State’s
“reservation” appears to modify the degree of acceptance of the compulsory
jurisdiction of the Court. However, a
simple reading of the term makes it difficult to determine the restrictions
that the State has purported to establish under Article 62 to its obligations
assumed under the Convention.
55) The term can also be interpreted in
various ways. For example, it could be
interpreted to mean that the Court is precluded from hearing and deciding a
case related to allegations of violations of a Convention right if the same
right is not protected under the State’s Constitution. Alternatively, it could be interpreted to
mean that “while the Court has jurisdiction to hear and determine a matter, the
Court’s judgment must be consistent with certain unstipulated sections of
Trinidad and Tobago’s Constitution”.
56) The
Commission noted that the State only relies upon the first part of the declaration
in concluding that the Court has no jurisdiction. It pointed out that the State makes no reference to the portion
of the declaration, which reads “and provided that any judgment of the Court
does not infringe, create, or abolish any existing rights or duties of any
private citizen”, and considered that it is apparent that the State
specifically acknowledges in this second part of the declaration that the Court
has competence to give judgments in cases against Trinidad and Tobago. “It may therefore be that, taking the first
and second parts of the declaration together, the State was concerned that the
giving effect in Trinidad and Tobago to the judgments of the Court should not
have an adverse effect on the existing private rights of the citizens, and
deprive them of rights they already enjoyed or impose on them duties to which
the were not already subject”.
57) The
term could be interpreted to mean that provided that, there is no provision in
the Constitution expressly prohibiting the State from accepting the compulsory
jurisdiction of the Court, the recognition of this jurisdiction is complete and
effective. In this sense, the State
does not suggest that there are provisions of the Constitution of Trinidad and
Tobago that prohibit the State from accepting the jurisdiction of the Court.
58) In light of the various possible
interpretations of the term, it appears so ambiguous that its meaning and scope
will depend upon a subjective judgment by the State as to what provisions of
the Constitution are “relevant” and in what respect the State’s acceptance of
the Court’s jurisdiction must be “consistent” with those provisions, the term,
would undermine the Court’s exclusive authority to determine its own
jurisdiction, and thereby also render the term invalid.
59) The
Commission also indicated that the term in the State’s declaration of
acceptance, as it stands and as interpreted by the State, is not authorized by
Articles 62 or 75 of the Convention and is incompatible with the Convention’s
object and purpose.
60) In conformity with Article 62(2) of the
Convention, the “declaration may be made unconditionally, on the condition of
reciprocity, for a specific period or for specific cases”. The State’s “reservation” does not invoke
the requirement of reciprocity, or temporal limitations, nor does it define
specific cases in which the Court will apply its jurisdiction.
61) Secondly, and in conformity with Article
75 of the Convention and, specifically Article 19 of the Vienna Convention, the
State’s “reservation” is not permitted, as it is contrary to the object and
purpose of the Convention. The
“reservation” is also contrary to general principles of International Law.
62) Finally, the term, as interpreted by the
State, would limit the ability of the Court to interpret and apply certain
provisions of the Convention in all cases against Trinidad and Tobago before
the Court, as it would permit the Tribunal to interpret and apply Convention
rights only to the extent that such rights are protected in the State’s
Constitution.
63) The Commission considered that the
State’s position ignores the fact that it is the responsibility of the Court,
not the State, to determine whether the domestic laws of the State, including
its Constitution, are consistent with the rights protected by the
Convention. It noted that the
Inter-American Court has emphasized that the issue of jurisdiction in a
particular case is one that only the Court, not States parties, can decide.
This clearly extends to the interpretation of the terms included in
declarations of acceptance made by various States parties under Article 62 of
the Convention.
64) In
the abovementioned circumstances, interpreting Article 62 of the American
Convention as authorizing the terms of the State’s acceptance would contravene
Article 29(a) of the Convention because it would effectively permit the State
to violate Articles 4(1), 5(1), and 5(2) of the same with respect to Mr.
Hilaire. The State has interpreted its
declaration in a manner that prohibits the Court from considering the specific
aspects of the “mandatory death penalty”.
65) The Commission also contended that the
impugned term could be severed from the State’s acceptance of the Court’s
compulsory jurisdiction, so that the State is considered to have accepted it
absent the condition, “only to the extent that said recognition is compatible
with the relevant sections of the Constitution of the Republic of Trinidad and
Tobago”.
66) The Convention protects the human rights
of individuals subject to the jurisdiction of the States parties, so the
State’s “reservation” should be interpreted in a manner that strengthens rather
than weakens this regime, and, as such, increases, not diminishes, the
protection of human rights in the entire hemisphere.
67) Severing the impugned term from the
State’s declaration of acceptance, instead of annulling the declaration in toto, serves to guarantee Mr.
Hilaire's fundamental human rights and those of individuals in similar
situations who would not otherwise have effective domestic remedies of
protection.
68) Trinidad
and Tobago was the only State party at its moment of accession to have attached
conditions of this nature to its acceptance of the Court’s jurisdiction. In contrast, the majority of States have
accepted the jurisdiction of the Court unconditionally. It is a principle of International Law and a
“fundamental precept of the American Convention”, that States cannot invoke
their internal law as a justification for not complying with a treaty. Nonetheless, this is what the State purports
to do with its interpretation of the impugned term.
69) The Inter-American Commission argued that
the Court could follow the reasoning of the European Court of Human Rights
(hereinafter “the European Court”) in the case of Loizidou v. Turkey, which declared that ratione loci restrictions could be severed from the declaration of
acceptance, in a manner that the State could be considered to have accepted the
contentious jurisdiction of the Court absent the qualification “only to the
extent to which that recognition is compatible with the relevant provisions of
the Constitution of Trinidad and Tobago”.
Oral
arguments of the State
70) The State sustained in the public hearing
held before the Court that Trinidad and Tobago had the intention of accepting,
in a limited way, the jurisdiction of the Court, and never accepted nor had the
intention of accepting its complete jurisdiction. This was the case because, in Trinidad and Tobago, any law that
is contrary to a provision of the Constitution is invalid. Any inconsistency between the Constitution
and the Convention would require an amendment of the State’s Constitution, and
only Parliament can alter the Constitution. The Executive, on behalf of Trinidad
and Tobago, ratified the Convention, and for this reason included the
“reservation” in its declaration of acceptance of the Court’s jurisdiction.
71) The State also indicated that the Court
only had jurisdiction if the provision in the Convention under which a
violation is alleged is not inconsistent with the Constitution of Trinidad and
Tobago, in other words, to the extent that it is not inconsistent with the
meaning that the courts of the State have given to the relevant sections of the
Constitution.
72) The State sustained that its “reservation”
is in accordance with Article 62 of the American Convention because the latter
authorizes the making of reservations in specific cases; and with Article 19 of
the Vienna Convention because its “reservation” is compatible with the object
and purpose of the Convention.
73) The State concluded that the requirements
of compatibility with the object and purpose refer to the object and purpose of
the Convention, and not of the Court; the recognition of the Court’s
jurisdiction is optional under the American Convention; the instant case merely
addresses the the Court’s jurisdiction, and not the withdrawal of jurisdiction
or the denunciation of the Convention; it does not affect the supervisory
jurisdiction of the Inter-American Commission; International Law permits
reservations, and this is expressly recognized in paragraph 25 of the Advisory
Opinion of the Court on The Effect of
Reservations on the Entry into Force of the American Convention on Human Rights
(OC-2/82); and, the “reservation” of the State does not deprive the Court of
the authority to decide whether or not it has jurisdiction.
74) Finally, the State alleged that the
“reservation” is clear, consistent with the object and purpose of the
Convention, and was made at the moment of the acceptance; therefore, it forms a
part of the terms of Trinidad and Tobago’s acceptance of the Treaty. In the event that it is considered unclear
or incompatible with the Convention, it is clear that the intention of the State
was not to accept the jurisdiction of the Court unconditionally.
Oral
arguments of the Commission
75) In the public hearing before the Court,
the Commission presented various general arguments: first, it indicated that it
is the Court that should determine its own jurisdiction; second, that in the
determination of the nature its jurisdiction and of the meaning that should be
given to any declaration, the Court is guided by the nature of the Convention
as a human rights instrument, and strives to give practical effect to the
object of the treaty; and, finally, that the Court has developed specific
jurisprudence in relation to declarations that purport to restrict its
jurisdiction.
76) The
Commission also indicated that once the jurisdiction of the Court has been
accepted, it cannot be terminated or modified by a unilateral act of the
State. It added that the State, in its
1991 declaration, intended to recognize the jurisdiction of the Court in all
matters relating to the interpretation of the Convention and did not purport to
exclude this jurisdiction. It argued
that, alternatively, any reservation purporting to limit the Court’s
jurisdiction to interpret the Convention by vague and ambiguous references to
domestic laws is not permitted under the Convention or under general principles
of International Law.
77) Finally,
it indicated that where there has been recognition of the Court’s jurisdiction
subject to impermissible restrictions, these restrictions should be severed
from the remainder of the instrument of acceptance, and the recognition should
remain intact and effective, unless the State withdraws from the Convention
system as a whole.
Considerations of the Court
78) The
Court must settle the matter of the purported “reservation” with which the
State of Trinidad and Tobago accompanied its acceptance of the contentious
jurisdiction of the Inter-American Court. The Court, as with any court or
tribunal, has the inherent authority to determine the scope of its own
competence (compétence de la
competence/Kompetenz-Kompetez).
79) The Court must give an interpretation to
the declaration of the State, as a whole, that is in accordance with the canons
and practice of International Law in general, and with International Human
Rights Law specifically, and which awards the greatest degree of protection to
the human beings under its guardianship.
80) The
Court cannot abdicate this prerogative, as it is a duty that the American
Convention imposes upon it, requiring it to exercise its functions in
accordance with Article 62(3) thereof.
That provision reads that “[t]he jurisdiction of the Court shall
comprise all cases concerning the interpretation and application of the
provisions of this Convention that are submitted to it, provided that the
States Parties to the case recognize or have recognized such jurisdiction,
whether by special declaration pursuant to the preceding paragraphs, or by a
special agreement”.
81) As this Tribunal has indicated in its
judgments on jurisdiction in the Cases of Constitutional
Court and Ivcher Bronstein:
The jurisdiction of the Court
cannot be contingent upon events extraneous to its own actions. The instruments consenting to the optional
clause concerning recognition of the Court’s binding jurisdiction (Article
62(1) of the Convention) presuppose that the States submitting them accept the
Court’s right to settle any controversy relative to its jurisdiction. An objection or any other action taken by
the State for the purpose of somehow affecting the Court’s jurisdiction has no
consequence whatever, as the Court retains the compétence de la compétence, as it is master of its own
jurisdiction[8].
82) Interpreting
the Convention in accordance with its object and purpose, the Court must act in
a manner that preserves the integrity of the mechanism provided for in Article
62(1) of the Convention. It would be
unacceptable to subordinate the said mechanism to restrictions that would
render the system for the protection of human rights established in the
Convention and, as a result, the Court’s jurisdictional role, inoperative.
83) As this Court has indicated in the Cases
of Constitutional Court and Ivcher Bronstein
[t]he States Parties to the
Convention must guarantee compliance with its provisions and its effects (effet utile) within their own domestic
laws. This principle applies not only
to the substantive provisions of human right treaties (in other words, the
clauses on the protected rights), but also to the procedural provisions, such
as the one concerning recognition of the Tribunal’s contentious jurisdiction.
That clause, essential to the efficacy of the mechanism of international
protection, must be interpreted and applied in such a way that the guarantee
that it establishes is truly practical and effective, given the special nature
of human rights treaties [...] and their collective enforcement[9].
84) Article
31(1) of the 1969 Vienna Convention 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 the light of its
object and purpose.
85) The Court’s duty, at this stage, is to
decide, as the present case requires, whether Trinidad and Tobago’s
“reservation” has the effect of excluding the Court’s jurisdiction in the
manner alleged by the State.
86) As previously noted,
the purported “reservation” contains two parts. The first intends to limit the recognition of the Court’s
compulsory jurisdiction in the sense that said recognition is only valid to the
extent that it is “consistent with the relevant sections” of the Constitution
of Trinidad and Tobago. These
expressions can lead to numerous interpretations. Nonetheless, it is clear to the Court that they cannot be given a
scope that would impede this Tribunal’s ability to judge whether the State had
or had not violated a provision of the Convention. The second part of the purported restriction relates to the
State’s “recognition” of the Court’s compulsory jurisdiction so that its
judgments do not “infringe, create or abolish any existing
rights or duties of any private citizen” (sic). Again, though the precise meaning of this
condition is unclear, without a doubt it cannot be utilized with the purpose of
suppressing the jurisdiction of the Court to hear and decide an application
related to an alleged violation of the State’s conventional obligations.
87) In
this respect, paragraphs 1 and 2 of Article 62 of the American Convention
establish:
1.
A State Party may, upon
depositing its instrument of ratification or adherence to this Convention, or
at any subsequent time, declare that it recognizes as binding, ipso facto, and not requiring special
agreement, the jurisdiction of the Court on all matters relating to the
interpretation or application of this Convention.
2.
Such declaration may be
made unconditionally, on the condition of reciprocity, for a specified period,
or for specific cases. It shall be
presented to the Secretary General of the Organization, who shall transmit
copies there to the other states of the Organization and to the Secretary of
this Court.
88) The
Court observes that the instrument of acceptance of the Court’s compulsory
jurisdiction on the part of Trinidad and Tobago is not consistent with the
hypothesis stipulated in Article 62(2) of the American Convention. It is general in scope, which completely
subordinates the application of the American Convention to the internal
legislation of Trinidad and Tobago as decided by its courts. This implies that the instrument of
acceptance is manifestly incompatible with the object and purpose of the Convention. As a result, the said article does not
contain a provision that allows Trinidad and Tobago to formulate the
“restriction” it made.
89) An
interpretation of the American Convention done “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” leads this Court to the view
that a State party to the Convention can only release itself of its obligations
under the Convention by following the provisions that the treaty itself
stipulates[10].
90) Article
29(a) of the American Convention stipulates that no provision of the Convention
shall be interpreted as “permitting any State Party, group, or person to
suppress the enjoyment or exercise of the rights and freedoms recognized in
this Convention or to restrict them to a greater extent than is provided for
herein”. Consequently, it would be
meaningless to suppose that a State which had freely decided to accept the
compulsory jurisdiction of the Court had decided at the same time to restrict
the exercise of its functions as foreseen in the Convention. On the contrary, the mere acceptance by the
State leads to the overwhelming presumption that the State will subject itself
to the compulsory jurisdiction of the Court.
91) The
effect of the State’s third allegation would be to limit its recognition of the
Court’s completely mandatory jurisdiction, with negative consequences for the
exercise of the rights protected by the Convention.
92) The
declaration formulated by the State of Trinidad and Tobago would allow it to
decide in each specific case the extent of its own acceptance of the Court’s
compulsory jurisdiction to the detriment of this Tribunal’s compulsory
functions. In addition, it would give
the State the discretional power to decide which matters the Court could hear,
thus depriving the exercise of the Court’s compulsory jurisdiction of all
efficacy.
93) Moreover,
accepting the said declaration in the manner proposed by the State would lead
to a situation in which the Court would have the State’s Constitution as its
first point of reference, and the American Convention only as a subsidiary
parameter, a situation which would cause a fragmentation of the international
legal order for the protection of human rights, and which would render illusory
the object and purpose of the Convention.
94)
The American Convention and the other human rights
treaties are inspired by a set of
higher common values
(centered around the
protection of the
human being), are endowed with specific supervisory
mechanisms, are applied as a collective guarantee, embody essentially objective
obligations, and have a special character that sets them apart from other
treaties. The latter govern mutual
interests between and among the States parties and are applied by them, with
all the juridical consequences that follow there from for the international and
domestic systems[11].
95) In
this respect, in its Advisory Opinion on The
Effect of Reservations on the Entry into Force of the American Convention on
Human Rights (OC-2/82), the Court found that
[m]odern human rights treaties in
general, and the American Convention in particular, are not multilateral
treaties of the traditional type concluded to accomplish the reciprocal
exchange of rights for the mutual benefit of the contracting States. Their
object and purpose is the protection of the basic rights of individual human
beings irrespective of their nationality, both against the State of their
nationality and all other contracting States. In concluding these human rights
treaties, the States can be deemed to submit themselves to a legal order within
which they, for the common good, assume various obligations, not in relation to
other States, but towards all individuals within their jurisdiction[12].
96) That
finding is consistent with the case law of other international jurisdictional
bodies[13].
97) As this Court has stated in the cases of Constitutional Court and Ivcher Bronstein
[n]o analogy can be drawn between
the State practice detailed under Article 36(2) of the Statute of the
International Court of Justice and acceptance of the optional clause concerning
recognition of the binding jurisdiction of this Court, given the particular
nature and the object and purpose of the American Convention. The European
Court of Human Rights ruled similarly in its judgment on preliminary objections
in the Loizidou v. Turkey case
(1995), in connection with optional recognition of the European Court’s binding
jurisdiction (Article 46 of the European Convention, before Protocol XI to the
European Convention entered into force on 01.11.1998). The European Court held that the European
Convention was a law-making treaty[14].
98) For
the foregoing reasons, the Court considers that Trinidad and Tobago cannot
prevail in the limitation included in its instrument of acceptance of the
optional clause of the mandatory jurisdiction of the Inter-American Court of
Human Rights in virtue of what has been established in Article 62 of the
American Convention, because this limitation is incompatible with the object
and purpose of the Convention.
Consequently, the Court considers that it must dismiss the second and
third arguments in the preliminary objection submitted by the State insofar as
they refer to the Court’s jurisdiction.
VIII
OPERATIVE
PARAGRAPHS
99) Now therefore,
THE COURT
DECIDES
Unanimously,
1. To
dismiss the preliminary objection presented by the State in its totality.
2. To continue to examine and process the
instant case.
3. To commission its President, at the
appropriate time, to convene the State and the Inter-American Commission to a
public hearing on the merits of the case, to be held at the seat of the
Inter-American Court of Human Rights.
4. To
notify the State and the Inter-American Commission on Human Rights of this
judgment.
Judges Cançado Trindade,
Salgado-Pesantes, and García-Ramírez informed the Court of their Individual
Opinions, which are attached to this Judgment.
Done in Spanish and English, the
Spanish version being the authentic, in San José, Costa Rica, on September 1,
2001.
Antônio A.
Cançado Trindade
President
Máximo
Pacheco-Gómez Hernán
Salgado-Pesantes
Alirio Abreu-Burelli
Sergio García-Ramírez
Carlos
Vicente de Roux-Rengifo
Manuel E. Ventura-Robles
Secretary
So ordered,
Antônio A.
Cançado Trindade
President
Manuel E.
Ventura-Robles
Secretary