Constantine et al. Case, Judgment of September 1, 2001, Inter-Am Ct. H.R. (Ser. C) No. 82 (2001).
In the Constantine et al. 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;
Oliver Jackman, 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 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 February 22, 2000. The Commission’s
application originates from petitions number 11,787 (George Constantine),
11,814 (Wenceslaus James), 11,840 (Denny Baptiste), 11,851 (Clarence Charles),
11,853 (Keiron Thomas), 11,855 (Anthony Garcia), 12,005 (Wilson Prince), 12,021
(Darrin Roger Thomas), 12,042 (Mervyn Edmund), 12,043 (Samuel Winchester),
12,052 (Martin Reid), 12,072 (Rodney Davis), 12,073 (Gangadeen Tahaloo), 12,075
(Noel Seepersad), 12,076 (Wayne Matthews), 12,082 (Alfred Frederick), 12,093
(Natasha De Leon), 12,111 (Vijay Mungroo), 12,112 (Phillip Chotalal), 12,129
(Naresh Boodram and Joey Ramiah), 12,137 (Nigel Mark), 12,140 (Wilberforce
Bernard) and 12,141 (Steve Mungroo), received by its Secretariat between July
1997 and February 1999.
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 is responsible for the violation of the following
articles of the American Convention on Human Rights (hereinafter “the American
Convention” or “the Convention”) (infra
18):
4(1),
5(1), 5(2), and 8(1), for sentencing George Constantine, Wenceslaus James,
Denny Baptiste, Clarence Charles, Keiron Thomas, Anthony Garcia, Wilson Prince,
Darrin Roger Thomas, Mervyn Edmund, Samuel Winchester, Martin Reid, Rodney
Davis, Gangadeen Tahaloo, Noel Seepersad, Wayne Matthews, Alfred Frederick,
Natasha De Leon, Vijay Mungroo, Phillip Chotalal, Joey Ramiah and Naresh
Boodram, Nigel Mark, Wilberforce Bernard and Steve Mungroo (hereinafter “the alleged
victims”) to a “mandatory death penalty”;
4(1),
5(1), and 5(2), for applying the death penalty to one of the alleged victims
while his case was pending before the Inter-American System of Human Rights;
4(6),
for failing to provide these twenty-four alleged victims with an effective
right to apply for amnesty, pardon, or commutation of sentence;
7(5)
and 8(1), for the delay in the criminal process of seventeen of the alleged
victims;
25
and 2, for failing to adopt legislative or other measures necessary to give
effect to the right to be tried before a competent tribunal within a reasonable
time for the same seventeen alleged victims under Articles 7(5) and 8(1) of the
Convention;
5(1)
and 5(2), for reason of sixteen of the alleged victims’ conditions of
detention;
8(2)(c),
for failing to disclose a highly probative witness statement to one of the
alleged victims prior to his trial, and consequently for denying the alleged
victim adequate means by which to prepare his defence;
8(2)(d)
and 8(2)(e), for denying one of the alleged victims the right to defend himself
personally or to be properly assisted by legal counsel of his choice in the
course of his appeal before the Trinidad and Tobago Court of Appeal;
8(1)
and 25, for failing to make legal aid effectively available to nine of the
alleged victims to pursue constitutional motions in the domestic courts in
connection with their criminal proceedings;
all
in relation to Article 1(1) of the Convention.
The
Inter-American Commission supports its statements, inter alia, with the following facts:
a)
On February 17, 1995, Mr. George Constantine (case
11,787) was convicted and sentenced to a “mandatory death penalty” by hanging
for the murder of Elsa Constantine;
b) On June 21, 1996, Mr. Wenceslaus James
(case 11,814) was convicted and sentenced to a “mandatory death penalty” by
hanging for the murder of Siewdath Ramkissoon;
c)
On May 29, 1995, Mr. Denny Baptiste (case 11,840) was
convicted and sentenced to a “mandatory death penalty” by hanging for the
murder of Alexander Jordan;
d) On March 16, 1989, Mr. Clarence Charles
(case 11,851) was convicted and sentenced to a “mandatory death penalty” by
hanging for the murder of Roger Charles;
e) On July 27, 1994, Mr. Keiron Thomas
(case 11,853) was convicted and sentenced to a “mandatory death penalty” by
hanging for the murder of Wayne Gerry Williams;
f) On October 30, 1996, Mr. Anthony
Garcia (case 11,855) was convicted and sentenced to a “mandatory death penalty”
by hanging for the murder of Cyril Roberts;
g) On November 26, 1996, Mr. Wilson Prince
(case 12,005) was convicted and sentenced to a “mandatory death penalty” by
hanging for the murder of Ida Sebastien Richardson;
h) On November 9, 1995, Mr. Darrin Roger
Thomas (case 12,021) was convicted and sentenced to a “mandatory death penalty”
by hanging for the murder of Chandranath Maharaj;
i) On December 10, 1990, Mr. Mervyn
Edmund (case 12,042) was convicted and sentenced to a “mandatory death penalty”
by hanging for the murder of Minerva Sampson;
j) On March 4, 1997, Mr. Samuel
Winchester (case 12,043) was convicted and sentenced to a “mandatory death
penalty” by hanging for the murder of Esma Darlington;
k) On November 15, 1995, Mr. Martin Reid
(case 12,052) was convicted and sentenced to a “mandatory death penalty” by
hanging for the murder of Fabrina Alleyne;
l) On January 31, 1997, Mr. Rodney Davis
(case 12,072) was convicted and sentenced to a “mandatory death penalty” by
hanging for the murder of Nicole Bristol;
m) On May 26, 1995, Mr. Gangadeen Tahaloo
(case 12,073) was convicted and sentenced to a “mandatory death penalty” by
hanging for the murder of Janetta Peters;
n) On February 7, 1997, Mr. Noel Seepersad
(case 12,075) was convicted and sentenced to a “mandatory death penalty” by
hanging for the murders of Candace Scott and Karen Sa Gomes;
o) On November 16, 1988, Mr. Wayne
Matthews (case 12,076) was convicted and sentenced to a “mandatory death
penalty” by hanging for the murder of Norris Yorke;
p) On September 29, 1997, Mr. Alfred
Frederick (case 12,082) was convicted and sentenced to a “mandatory death
penalty” by hanging for the murder of Rahiman Gopaul;
q) On November 9, 1995, Mrs. Natasha De
Leon (case 12,093) was convicted and sentenced to a “mandatory death penalty”
by hanging for the murder of Chandranath Maharaj;
r) On December 13, 1996, Mr. Vijay
Mungroo (case 12,111) was convicted and sentenced to a “mandatory death
penalty” by hanging for the murder of Edmund Mitchell;
s) On December 13, 1996, Mr. Phillip
Chotalal (case 12,112) was convicted and sentenced to a “mandatory death
penalty” by hanging for the murder of Edmund Mitchell;
t) On November 27, 1996, Messrs. Joey
Ramiah and Naresh Boodram (case 12,129) were convicted and sentenced to a
“mandatory death penalty” by hanging for the murders of Anthony Curtis
Greenridge and Steven Sandy; in addition, Mr. Joey Ramiah was sentenced to
death under the Offences Against the
Person Act in relation to Dole Chaddee and on June 4, 1999, the State
executed Mr. Ramiah pursuant to this second conviction;
u) On November 11, 1997, Mr. Nigel Mark
(case 12,137) was convicted and sentenced to a “mandatory death penalty” by
hanging for the murder of Bhagirath Singh;
v) On January 22, 1996, Mr. Wilberforce
Bernard (case 12,140) was convicted and sentenced to a “mandatory death
penalty” by hanging for the murder of Ramnarine Saroop;
w) On December 13, 1996, Mr. Steve Mungroo
(case 12,141) was convicted and sentenced to a “mandatory death penalty” by
hanging for the murder of Edmund Mitchell;
x) In all 23 cases, the alleged victims
were tried by Trinidad and Tobago for the crime of murder, were convicted, and
sentenced to death by hanging under the Offences
Against the Person Act. Once an
offender is found guilty of murder, section 4 of the said Act “mandates the
death penalty”, establishing that “all persons sentenced for murder will suffer
death”;
y) The Offences
Against the Person Act provides a definition of “murder”, permits a jury to
consider certain specific 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;
z) Domestic judicial review proceedings
for criminal convictions may take two forms: a criminal appeal against
conviction or a constitutional motion under Section 14 of the Constitution.
Article 6 of the Trinidad and Tobago Constitution shields from challenge, under
sections 4 and 5 of the Constitution, any claim that a law or any action taken
under the authority of any law existing in 1976, the date of commencement of
the Constitution, violates the fundamental rights under sections 4 and 5 of the
Constitution. This includes any argument that the executive act of carrying out
a death sentence pronounced by a court under a law that was in force in 1976
abrogates, abridges or infringes in any way a condemned individual’s Constitutional
rights or freedoms;
aa) In addition, section 4 of the Trinidad
and Tobago Constitution only guarantees the right to a fair trial, and not a
speedy trial, within a reasonable time. Consequently, a lengthy pre-trial delay
in a criminal case cannot, in and of itself, raise an issue under the Trinidad
and Tobago Constitution, rather, it is simply a factor for the trial judge to
take into account when assessing the overall question of fairness;
bb) 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 that is not a matter of
legal right, and therefore not subject to judicial review.
III
PROCEEDING BEFORE THE
COMMISSION
3) Between
July 1997 and April 1999, the Commission received 23 petitions from various British law firms (hereinafter “the
petitioners”) on behalf of 24 alleged victims whose rights were alleged to have
been violated by the State. The
Commission began the proceedings of the cases that are the subject of this
application on various dates between August 1997 and April 1999, and
subsequently opened cases 11,787; 11,814; 11,840; 11,851; 11,853; 11,855;
12,005; 12,021; 12,042; 12,043; 12,052; 12,072; 12,073; 12,075; 12,076; 12,082;
12,093; 12,111; 12,112; 12,129; 12,137; 12,140; and 12,141, and transmitted the
pertinent parts of the petitions to the State, and requested a reply.
4) The
Commission received responses from the State in cases 11,787 (George
Constantine), 11,814 (Wenceslaus James), 11,840 (Denny Baptiste), 11,851
(Clarence Charles), 11,853 (Keiron Thomas), 11,855 (Anthony Garcia), 12,005
(Wilson Prince), 12,042 (Mervyn Edmund), 12,052 (Martin Reid), 12,072 (Rodney
Davis), 12,073 (Gangadeen Tahaloo), 12,075 (Noel Seepersad), 12,082 (Alfred
Frederick), 12,093 (Natasha De Leon), 12,111 (Vijay Mungroo), 12,112 (Phillip
Chotalal), 12,129 (Joey Ramiah and Naresh Boodram), 12,137 (Nigel Mark) and
12,140 (Wilberforce Bernard), on various dates between December 1997 and
October 1999, and in the remaining four (12,021; 12,043; 12,076 and 12,141),
the State did not provide the Commission with any observations respecting the
petitions. In the 19 cases in which the
State delivered a response, the Commission decided to transmit the pertinent parts
to the petitioners, in accordance with Article 34(7) of its Rules of Procedure,
and requested their comments.
5) In
18 cases, the petitioners delivered comments on the State’s response. The Commission transmitted these
communications to the State and requested a reply. In two cases, 11,814 (Wenceslaus James) and 11,840 (Denny
Baptiste), the State delivered replies to the petitioners’ observations.
6) In
eight cases, 11,814 (Wenceslaus James), 11,840 (Denny Baptiste), 11,853 (Keiron
Thomas), 11,855 (Anthony Garcia), 12,005 (Wilson Prince), 12,021 (Darrin Roger
Thomas), 12,042 (Mervyn Edmund), and 12,129 (Naresh Boodram and Joey Ramiah),
the Commission received supplementary materials from the petitioners and
transmitted the pertinent parts to the State. In two cases, 11,840 (Denny
Baptiste) and 11,853 (Keiron Thomas), the State delivered responses to the
petitioners’ supplementary submissions.
In both cases, the Commission transmitted the pertinent parts of the
State’s response to the petitioners, and the petitioners presented observations
on the State’s response.
7) During
its 103rd Period of Sessions, the Commission scheduled oral hearings
in several cases involving condemned prisoners, which the State did not attend.
During the abovementioned period of sessions, the petitioners in cases 11,787
(George Constantine), 11,840 (Denny Baptiste), 12,005 (Wilson Prince), 12,021
(Darrin Roger Thomas), 12,042 (Mervyn Edmund), 12,043 (Samuel Winchester),
12,072 (Rodney Davis), and 12,075 (Noel Seepersad) presented the Commission
with a joint submission, dated March 17, 1999.
By communication dated April 15, 1999, the Commission transmitted the
petitioners’ additional submissions to the State and requested its observations.
8) Between
May 1998 and March 1999, the Commission adopted Reports Nos. 36/98, 62/98,
45/98, 35/99, 36/99, and 37/99, in the cases 11,814; 11,840; 11,855; 12,005;
12,042 and 12,052. In these reports the
Commission declared these petitions to be admissible.
9) On
November 19, 1999, the Commission adopted Report No. 128/99, in accordance with
Article 50 of the Convention, and transmitted it to the State on November 22,
of the same year. In this report, the
Commission determined that the remaining seventeen cases were admissible[2]
and, in the operative part of the report, recommended that the State, in
relation to the 23 cases that are the subject of this application[3]:
1.
Grant the victims in
the cases that are subject of [this] Report an effective remedy which includes
commutation of sentence and compensation;
2.
Provide adequate
compensation to the next of kin of Joey Ramiah (Case No. 12,129) for the
violations referred to in [this Report] in relation to Mr. Ramiah;
3.
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, including and in particular, Articles 4, 5 and 8;
4.
Adopt such
legislative or other measures as may be necessary to ensure that the right
under Article 4(6) of the Convention to apply for amnesty, pardon or
commutation of sentence is given effect in Trinidad and Tobago;
5.
Adopt such
legislative or other measures as may be necessary to ensure that the right to
trial within a reasonable time under Articles 7(5) and 8(1) of the Convention
is given effect in Trinidad and Tobago, including effective recourse to a
competent court or tribunal for protection against acts that violate those
rights;
6.
Adopt such
legislative or other measures as may be necessary to ensure that the right to a
fair hearing under Article 8(1) of the Convention and the right to judicial
protection under Article 25 of the Convention are given effect in Trinidad and
Tobago, in relation to recourse to constitutional motions.
10) By
communication dated January 22, 2000, the State replied to the Commission’s
request for information on the measures taken to comply with the
recommendations.
11) On
February 22, 2000, the Inter-American Commission, pursuant to Article 51 of the
American Convention, decided to submit the case to the Court.
IV
PROVISIONAL
MEASURES
12) On May 22, 1998, prior to the submission
of the application, the Commission requested that the Court adopt provisional
measures to preserve the lives and physical integrity of Wenceslaus James and
Anthony Garcia, among others[4].
13) By Order of May 27, 1998, the President
of the Court (hereinafter “the President”) ordered the adoption of the
requested measures in the matter of James
et al., and, on June 14 of the same year, the Court ratified this Order.
14) On August 29, 1999, the Court expanded
the provisional measures in the matter of James et al. to include Darrin Roger Thomas, Haniff Hilaire and Denny
Baptiste[5].
15) On May 3, 1999, the Commission requested
that the Court expand the provisional measures ordered in the matter of James et al. in order to include twenty
additional persons, namely: Wilberforce Bernard, Naresh Boodram, Joey Ramiah,
Clarence Charles, Phillip Chotalal, George Constantine, Rodney Davis, Natasha
De Leon, Mervyn Edmund, Alfred Frederick, Nigel Mark, Wayne Mathews, Steve
Mungroo, Vijay Mungroo, Wilson Prince, Martin Reid, Noel Seepersad, Gangadeen
Tahaloo, Keiron Thomas and Samuel Winchester.
16) On May 11, 1999, the President of the
Court ordered the State, inter alia,
to take all measures necessary to preserve the lives of the alleged victims (supra 15), so that the Court could
examine the pertinence of the Commission’s request for amplification. On May 25, 1999, the plenary of the Court
ratified the President’s Order of May 11, 1999.
17) As
of this date, the State has been filing the relevant reports with respect to
the situation of the persons protected, and the Commission has filed its
observations on the State’s reports.
V
PROCEEDING BEFORE THE COURT
18) On
February 22, 2000, the Inter-American Commission presented 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:
1. In Cases 11,787 (George Constantine), 11,814 (Wenceslaus James), 11,840 (Denny Baptiste),
11,851 (Clarence Charles), 11,853 (Keiron Thomas), 11,855 (Anthony Garcia),
12,005 (Wilson Prince), 12,021 (Darrin Roger Thomas), 12,042 (Mervyn Edmund),
12,043 (Samuel Winchester), 12,052 (Martin Reid), 12,072 (Rodney Davis), 12,073
(Gangadeen Tahaloo), 12,075 (Noel Seepersad), 12,076 (Wayne Matthews), 12,082
(Alfred Frederick), 12,093 (Natasha De Leon), 12,111 (Vijay Mungroo), 12,112
(Phillip Chotalal), 12,129 (Naresh Boodrarn and Joey Ramiah), 12,137 (Nigel
Mark), 12,140 (Wilberforce Bernard), and 12,141 (Steve Mungroo) the State is responsible
for the violation of the rights under Articles 4(1), 5(1), 5(2) and 8(l), in
conjunction with Article 1(1) of the American Convention, for sentencing these
victims to mandatory death penalties.
2. In Case 12,129 (Naresh Boodram and Joey Ramiah), the
State is responsible for violating the rights of the victim Joey Ramiah under
Articles 4(l), 5(1) and 5(2) of the Convention, in conjunction with Article
1(1) of the Convention by executing Mr. Ramiah pursuant to a mandatory death
penalty and while his case was pending before the Inter-American human rights
system.
3. In
Cases 11,787 (George Constantine), 11,814 (Wenceslaus James), 11,840 (Denny
Baptiste), 11,851 (Clarence Charles), 11,853 (Keiron Thomas), 11,855 (Anthony
Garcia), 12,005 (Wilson Prince), 12,021 (Darrin Roger Thomas), 12,042 (Mervyn
Edmund), 12,043 (Samuel Winchester), 12,052 (Martin Reid), 12,072 (Rodney
Davis), 12,073 (Gangadeen Tahaloo), 12,075 (Noel Seepersad), 12,076 (Wayne
Matthews), 12,082 (Alfred Frederick), 12,093 (Natasha De Leon), 12,111 (Vijay
Mungroo), 12,112 (Phillip Chotalal), 12,129 (Naresh Boodram and Joey Ramiah),
12,137 (Nigel Mark), 12,140 (Wilberforce Bernard), and 12,141 (Steve Mungroo)
the State is responsible for violation of the right under Article 4(6) of the
Convention, in conjunction with 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.
4. In Cases 11,787
(George Constantine), 11,840 (Denny Baptiste), 11,851 (Clarence Charles),
12,005 (Wilson Prince), 12,021 (Darrin Roger Thomas), 12,042 (Mervyn Edmund),
12,072 (Rodney Davis), 12,073 (Gangadeen Tahaloo), 12,075 (Noel Seepersad),
12,076 (Wayne Matthews), 12,082 (Alfred Frederick), 12,093 (Natasha De Leon) 12,111
(Vijay Mungroo), 12,112 (Phillip Chotalal), 12,137 (Nigel Mark), 12,140
(Wilberforce Bernard) and 12,141 (Steve
Mungroo), the State is responsible for the violation of the rights of
the victims to be tried within a reasonable time and to a fair trial 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 the victims' criminal proceedings.
5. In Cases 11,787 (George
Constantine), 11,840 (Denny Baptiste), 11,851 (Clarence Charles), 12,005
(Wilson Prince), 12,021 (Darrin Roger Thomas), 12,042 (Mervyn Edmund), 12,072
(Rodney Davis), 12,073 (Gangadeen Tahaloo), 12,075 (Noel Seepersad), 12,076
(Wayne Matthews), 12,082 (Alfred Frederick),
12,093 (Natasha De Leon) 12,111 (Vijay Mungroo), 12,112 (Phillip Chotalal), 12,137 (Nigel Mark),
12,140 (Wilberforce Bernard), and 12,141 (Steve Mungroo), the State is
responsible for the violation of Article 25 of the Convention, in conjunction
with the violation of the State's obligations under Article 2 of the
Convention, all in conjunction with violation of article 1(1) of the
Convention, by failing to adopt legislative or other measures necessary to give
effect to the right to be tried within a
reasonable time under Articles 7(5) and 8(1) of the Convention.
6. In Cases 11,853
(Keiron Thomas), 11,855 (Anthony Garcia), 12,021 (Darrin Roger Thomas), 12,043
(Samuel Winchester), 12,072 (Rodney Davis), 12,073 (Gangadeen Tahaloo), 12,075
(Noel Seepersad), 12,076 (Wayne Matthews), 12,082 (Alfred Frederick), 12,111
(Vijay Mungroo), 12,112 (Phillip Chotalal), 12,129 (Naresh Boodram and Joey
Ramiah), 12,137 (Nigel Mark), 12,140 (Wilberforce Bernard) and 12,141 (Steve
Mungroo), the State is responsible for the violation of Articles 5(1) and 5(2)
of the Convention, in conjunction with violations of Article 1(1) of the
Convention, by reason of the victims' conditions of detention before and after
their convictions.
7. In Case 12,052 (Martin Reid), the State is responsible
for the violation of Article 8(2)(c) of the Convention, in conjunction with
Article 1(1) of the Convention, for failing to disclose a highly probative
witness statement to the victim prior to his trial.
8. In Case 11,853 (Keiron Thomas), the State is
responsible for the violations of the rights of the victim under Articles
8(2)(d) and 8(2)(e) of the Convention, in conjunction with Article 1(1) of the
Convention, by denying the victim the right to defend himself personally or to
be properly assisted by legal counsel of his choice during his appeal before
the Trinidad and Tobago Court of Appeal.
9. In
Cases 11,787 (George Constantine), 12,005 (Wilson Prince), 12,042 (Mervyn
Edmund), 12,052 (Martin Reid), 12,073 (Gangadeen Tahaloo), 12,075 (Noel
Seepersad), 12,093 (Natasha De Leon), 12,112 (Phillip Chotalal), and 12,140
(Wilberforce Bernard), the State is responsible for the violation of Articles 8
and 25 of the Convention, in conjunction with Article 1(1) of the Convention,
for failing to make legal aid effectively available to these victims to pursue
Constitutional Motions in the domestic courts in connection with their criminal
proceedings.
B. Reparations
The Inter-American Commission on
Human Rights respectfully petitions the Honorable Inter American Court of Human
Rights to:
Direct that the Republic of
Trinidad and Tobago grant the victims in 21 of the cases that are the subject
of this application, Cases 11,787 (George Constantine), 11,814 (Wenceslaus
James), 11,840 (Denny Baptiste, 11,851 (Clarence Charles), 11,853 (Keiron Thomas),
11,855 (Anthony Garcia) 12,005 (Wilson Prince), 12,021 (Darrin Roger Thomas),
12,042 (Mervyn Edrnund) 12,043 (Samuel Winchester), 12,072 (Rodney Davis),
12,073 (Gangadeen Tahaloo), 12,075 (Noel Seepersad), 12,082 (Alfred Frederick),
12,093 (Natasha De Leon), 12,111 (Vijay Mungroo), 12,112 (Phillip Chotalal),
12,129 (Naresh Boodram. and Joey Ramiah), 12,137 (Nigel Mark), 12,140
(Wilberforce Bernard), and 12,141 (Steve Mungroo) an effective remedy which
includes commutation of sentence and compensation.
Direct that the Republic of
Trinidad and Tobago grant the victim in Case 12,076 (Wayne Matthews), whose
death sentence the State has agreed to commute, an effective remedy that
includes compensation.
Direct that the Republic of
Trinidad and Tobago grant the victim in Case 12,052 (Martin Reid) an effective
remedy which includes a re-trial in accordance with the due process protections
prescribed under Article 8 of the Convention or, if a re-trial in compliance
with these protections is not possible, release.
Direct that the Republic of
Trinidad and Tobago provide adequate compensation to the next of kin of Joey
Ramiah (Case 12,129) for the violations referred to in Part VII.B above
relating to Mr. Ramiah.
Direct that the Republic 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, including and in
particular Articles 4, 5 and 8.
Direct that the Republic of
Trinidad and Tobago adopt such legislative or other measures as may be
necessary to ensure that the right under Article 4(6) of the Convention to apply for amnesty, pardon or commutation of
sentence is given effect in Trinidad and Tobago.
Direct that the Republic of
Trinidad and Tobago adopt such legislative or other measures as may be
necessary to ensure that the right to trial within a reasonable time under
Articles 7(5) and 8(1) of the Convention is given effect in Trinidad and
Tobago, including effective recourse to a competent court or tribunal for
protection against acts that violate that right.
Direct that the Republic of
Trinidad and Tobago adopt such legislative or other measures as may be
necessary to ensure that the right to a fair hearing under Article 8(1) of the
Convention and the right to judicial protection under Article 25 of the
Convention are given effect in Trinidad and Tobago in relation to recourse to
Constitutional Motions.
C. Compensation
The
Commission has requested that the Honorable Court require the State of Trinidad
and Tobago to remedy the consequences of the violations that 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 insured 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 status
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 status 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 during the processing of the case
before the domestic courts and the organs of the Inter-American system.
19) The
Commission appointed Messrs. Robert K. Goldman and Nicholas Blake as delegates,
and Messrs. David J. Padilla and Brian D. Tittemore as legal advisors. The Commission also designated Julian
Knowles, Keir Starmer, Saul Lehrfreund, Belinda Moffat, Yasmin Waljee, and
James Oury as assistants.
20) On
April 14, 2000, 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. The same
date, 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”).
21) On
June 14, 2000, Trinidad and Tobago submitted a preliminary objection to the
compulsory jurisdiction of the Court in this case. The following day, the
Secretariat transmitted a copy of the preliminary objection to the
Inter-American Commission.
22) On
July 15, 2000, the Commission responded to the communication with respect to
the raising of the preliminary objection on the part of the State, which was
transmitted to Trinidad and Tobago on July 17 of the same year.
23) On
September 1, 2000, the Inter-American Commission waived the convening of a
hearing on the preliminary objection raised by the State. On September 5, 2000,
the Secretariat transmitted this communication to the State, and on September
12, 2000, requested its observations, granting it until September 29 of the
same year to provide them.
24) The
State did not present observations on the Commission’s petition despite the
fact that the Secretariat requested the said observations again on October 2,
2000.
25) On October 9, 2000, the President of the
Court issued an Order in the following terms:
1. To
grant the request of the Inter-American Commission on Human Rights to waive the
convening of a special hearing on the preliminary objection raised by the State
of Trinidad and Tobago in the present Case.
2. To
continue with the consideration of the Constantine et al. Case at its present phase.
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.
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, 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:
FAILURE OF THE COURT TO
“ACCEPT JURISDICTION” WITHIN THE STIPULATED PERIOD AND LACK OF JURISDICTION
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 Court did not accept
jurisdiction of the case within the three-month period stipulated under Article
51 of the American Convention on Human Rights.
II. The State’s second reservation
precludes any jurisdiction of the Court in this case.
III. Alternatively, the State has never
recognized the jurisdiction of the Court.
30) The
Court will now consider the arguments presented by the State in the case sub judice.
A. FAILURE OF THE COURT TO “ACCEPT JURISDICTION” WITHIN THE
STIPULATED PERIOD
Arguments of the State
31) The
State alleged that Article 51(1) of the Convention requires that, for the Court
to have jurisdiction, not only must the Commission’s Report have been submitted
to the Court within three months of the date of transmittal of the said Report
to the State concerned, but that the Court must also have accepted jurisdiction
in respect of the matter within the three month period.
32) In this regard, the State noted that
Article 51(1) of the Convention provides that
[i]f,
within a period of three months from the date of the transmittal of the report
of the Commission to the states concerned, the matter has not either been
settled or submitted by the Commission or by the state concerned to the Court and its jurisdiction accepted, the
Commission may, by the vote of an absolute majority of its members, set forth
its opinion and conclusions concerning the question submitted for its
consideration. (emphasis added)
33) Trinidad
and Tobago maintained that the Confidential Report No. 128/99, issued pursuant
to Article 50 of the Convention, was submitted to the State on November 22,
1999. Consequently, the three-month time period stipulated in Article 51(1)
expired on February 22, 2000, and the Court should therefore have accepted
jurisdiction on the matter before that date. However, the State received
notification that the Court had “accepted jurisdiction” on April 14, 2000.
Arguments of the Commission
34) The
Commission stated that the phrase “its jurisdiction accepted” in Article 51(1)
of the Convention cannot be interpreted so as to require the Court to make an
express act of acceptance of jurisdiction in each application, much less to
require it to do so within the three-month period prescribed in the article.
35) The
Commission also argued that the interpretation of Article 51(1) of the
Convention advocated by the State would not accord with the ordinary meaning of
the terms of the provision in their context, or with the object and purpose of
the Convention. It would be inconsistent with other provisions of the
Convention, the Court’s Statute, and the Court’s procedure and jurisprudence.
36) It
added that the State’s interpretation of Article 51(1) of the Convention would
necessarily require the Court to make a determination as to whether it has
jurisdiction to entertain a case within the same three-month period prescribed
for the Commission or a State to submit a matter to the Court. Such an
interpretation is plainly not viable, as it would inevitably provide parties
with insufficient time to raise preliminary objections, for a hearing on
preliminary issues, or for the Court to make a determination respecting its
jurisdiction in a given case. As a consequence, the Court would lose
jurisdiction in most, if not all, of the cases submitted to it. Such an
interpretation of Article 51(1) would be irrational in the context of the
Convention as a whole, and is plainly contrary to the object and purpose of the
Convention.
37) Interpreting
Article 51(1) as speaking to the acceptance by the State of the Court’s
compulsory jurisdiction under Article 62 of the Convention, on the other hand,
is consistent with the Convention’s object and purpose, and is reinforced by
it, the Court’s Statute, and the procedure and jurisprudence of the Court.
Article 61 of the Convention, for example, expressly contains instructions to
comply with Articles 48 to 50, but not Article 51, as a precondition for the
Court to hear a case. Similarly,
Article 2 of the Statute defines the Court’s compulsory jurisdiction in terms
of Articles 61, 62, and 63, but not Article 51, of the Convention.
38) Further,
the Commission indicated that Article 36 of the Court’s Rules of Procedure
provides a period of two months from the date of notification of an application
for parties to raise preliminary objections, and a further thirty days for the
submission of any additional written briefs on the preliminary objections. The
timing of this process is clearly incompatible with an interpretation of
Article 51(1) that would require preliminary objections to be filed within
three months of the date of transmission of the Commission’s Article 50 Report.
Moreover, the Court has determined in its jurisprudence that Article 51 of the
Convention requires a matter to be filed before the Court within the
three-month period under Article 51, but has never interpreted said article in
a manner that requires the Court to determine its jurisdiction over the case
within this same three-month period.
39) Given
the urgency of the issues raised in the present application before the Court,
particularly the legitimacy of the pending executions, the Commission requested
that the State should not be permitted to defeat the Court’s jurisdiction over
the case based upon an erroneous interpretation of the procedural period under
Article 51 of the Convention.
Considerations of the Court
40) The
Court finds it appropriate to clarify, in light of the State’s arguments, that
what took place on April 14, 2000 was a notification of the application (supra 20). Consequently, it should not be interpreted that the three-month
time period stipulated in Article 51(1) of the Convention applies to the
Court’s actions in the exercise of its own jurisdiction, as this emanates from
the American Convention. Article 51(1) only refers to a time limit for the
submission of the application to the Court, and does not directly relate to the
Court’s actions relative to the determination of its jurisdiction. When the text of Article 51(1) says “its
jurisdiction accepted”, this refers to the acceptance of the Court’s
jurisdiction on the part of the State,
and not the Court’s actions in the exercise of its own jurisdiction.
41) For
the foregoing considerations, the Court dismisses the first argument of the
State’s preliminary objection, in which it refers to the timeliness of the
application and the “acceptance of jurisdiction” on the part of the Court.
B. LACK OF
JURISDICTION OF THE COURT
Arguments of the State
42) 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.
43) 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.
44) 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].
45) 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.
46) Trinidad and Tobago contended that, in
accordance with universally recognized principles of International Law, the
exercise of the jurisdiction by an international court with respect to a State
is not a right but a privilege only exercisable with the express consent of the
State. Article 62 of the Convention
reflects this position.
47) The
State added that the Constitution of Trinidad and Tobago is and was, at the
moment of ratification of the Convention, compatible with the Convention. 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.
48) 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.
49) 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 […]
50) The
State indicated out 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 or
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.
51) 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.
Arguments of the
Commission
52) 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.
53) 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.
54) 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.
55) 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
they were not already subject.
56) 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.
57) 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.
58) The
Commission also indicated that the term in the State’s declaration of
acceptance is not authorized by Articles 62 or 75 of the Convention and is
incompatible with the Convention’s object and purpose.
59) 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.
60) 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.
61) 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.
62) 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.
63) 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 the Convention with respect to the alleged victims in this
case. The State has interpreted its
declaration in a manner that prohibits the Court from considering the specific
aspects of the “mandatory death penalty”.
64) The Commission also contended that the
impugned term could be severed from the State’s acceptance of the Court’s
compulsory jurisdiction, preserving the validity and effectiveness of the said
instrument.
65) 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.
66) Severing the impugned term from the
State’s declaration of acceptance, instead of annulling the declaration in toto, serves to guarantee the
fundamental human rights of the alleged victims and those of individuals in
similar situations who would not otherwise have effective domestic remedies of
protection.
67) Trinidad
and Tobago noted that 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.
68) 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, leaving intact the acceptance of the optional clauses.
Considerations of the
Court
69) 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).
70) 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.
71) 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”.
72) 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[7].
73) 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.
74) 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[8].
75) 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.
76) 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.
77) 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.
78) 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 the Court.
79) 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.
80) 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[9].
81) 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.
82) 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.
83) 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.
84) 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.
85) 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[10].
86) 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[11].
87) That
finding is consistent with the case law of other international jurisdictional
bodies[12].
88) 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[13].
89) For the foregoing reasons, the Court
considers that Trinidad and Tobago cannot prevail in the limitations 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. Consequently, the Court considers that it
must dismiss the second and third arguments in the preliminary objection
presented by Trinidad and Tobago insofar as they refer to the Court’s
jurisdiction.
VIII
OPERATIVE
PARAGRAPHS
90) 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
Oliver Jackman
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