(PreliminaryObjections, Merits, Reparations, and Costs)
In the DaCosta Cadogan case,
the Inter-American Court of Human Rights (hereinafter “the Inter-American Court,” “the Court,” or “the Tribunal”), composed of the following judges:
Cecilia Medina Quiroga, President;
Diego García Sayán, Vice-President;
Sergio García Ramírez, Judge;
Manuel E. Ventura Robles, Judge;
Leonardo A. Franco, Judge;
Margarette May Macaulay, Judge;
Rhadys Abreu Blondet, Judge, and
John A. Connell, ad hoc Judge;
Pablo Saavedra Alessandri, Secretary, and
Emilia Segares Rodríguez, Deputy Secretary,
pursuant to Articles 62(3) and 63(1) of the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”) and Articles 30, 32, 38(6), 59, and 61 of the Court’s Rules of Procedure1 (hereinafter “the Rules of Procedure”), delivers the present Judgment.
INTRODUCTION OF THE CASE AND SUBJECT OF THE DISPUTE
On October 31, 2008, in accordance with the provisions of Articles 51 and 61 of the American Convention, the Inter-American Commission on Human Rights (hereinafter “the Commission” or “the Inter-American Commission”) submitted an application to the Court against the State of Barbados (hereinafter “the State” or “Barbados”). The application originated from petition No. 12.645, presented by Messrs. Alair P. Shepherd Q.C. and M. Tariq Khan to the Secretariat of the Commission on December 29, 2006. On March 4, 2008, the Commission adopted Admissibility Report No. 7/08 and on July 25, 2008, it adopted Merits Report No. 60/08, pursuant to Article 50 of the Convention, in which it made certain recommendations to the State.2 Considering that the State had not adopted its recommendations, the Commission decided to submit this case to the jurisdiction of the Court on October 29, 2008, pursuant to Articles 51(1) of the Convention and 44 of the Commission’s Rules of Procedure. The Commission designated Commissioner Paolo Sergio Pinheiro and Mr. Santiago A. Canton, Executive Secretary of the Commission, as its Delegates in this case. Elizabeth Abi-Mershed, Deputy Executive Secretary of the Commission, and Mario López-Garelli, Ismene Zarifis, and Manuela Cuvi Rodríguez were appointed to serve as legal advisors.
In its application, the Commission requested that the Court declare Barbados responsible for imposing the mandatory death penalty on Mr. Tyrone DaCosta Cadogan “absent any consideration of the specific circumstances of the crime, and without any consideration for mitigating factors.” The Commission alleged that “[o]n May 18, 2005[,] the Supreme Court of Barbados found Mr. Tyrone DaCosta Cadogan guilty of murder and sentenced him to death by hanging, pursuant to Barbados’s Offences Against the Persons Act 1994, which prescribed capital punishment as the mandatory punishment for the crime of murder. As a consequence of a ‘savings’ clause in the Constitution of Barbados, the domestic courts cannot declare the mandatory death sentence to be invalid even though it violates fundamental rights protected under Barbados’s Constitution and the American Convention.” Consequently, the Commission requested that the Court declare the State responsible for the violations of Articles 4(1) and 4(2) (Right to Life), 5(1) and 5(2) (Right to Humane Treatment), and 8 (Right to a Fair Trial) of the American Convention on Human Rights, in relation to Articles 1(1) (Obligation to Respect Rights) and 2 (Domestic Legal Effects) thereof, to the detriment of Mr. Cadogan. Likewise, the Commission requested that the Court order corresponding reparations.
On January 16, 2009, the representatives of the alleged victim, Saul Lehrfreund M.B.E., Parvais Jabbar, Alair Shepherd Q.C., Douglas Mendes S.C., Tariq Khan, Ruth Brander, and Alison Gerry (hereinafter “the representatives”), submitted their written brief containing pleadings, motions, and evidence (hereinafter “the representatives’ brief”), in accordance with Article 24 of the Rules of Procedure. The representatives asked the Court to declare the violation of the same rights alleged by the Commission; they also claimed that the failure of the State to cause a comprehensive psychiatric examination of the alleged victim to be undertaken and made available for the purposes of the trial breached his right to a fair trial protected under Article 8 of the Convention and is cruel and inhuman, contrary to Article 5(1) and 5(2) thereof. Furthermore, the representatives requested the adoption of additional measures of reparation and the reimbursement of the expenses incurred in the processing of the case before the Court.
On March 17, 2009, the State, represented by Hon. Freundel J. Stuart, Q.C., M.P., and Dr. David S. Berry as Agent and Deputy Agent, respectively, submitted its brief containing the answer to the application and observations to the representatives’ brief (hereinafter “answer to the application”), in which it submitted the following three preliminary objections to the Court’s jurisdiction: i) lack of exhaustion of domestic remedies, ii) breach of the fourth instance rule, and iii) that the complaint no longer involved the Commission as a party. The State alleged that some of the legal issues raised in this case are identical to those analyzed by this Court in the Boyce et al. case, and requested that the Court note that the State had already carried out certain measures to comply with the Court’s Judgment in that case. At the same time, the State requested that the Court deny all the claims and requests submitted by the representatives and the Commission and affirm that the laws of Barbados comply with the American Convention.
Pursuant to Article 38(4) of the Rules of Procedure, on April 29, 2009, the representatives and the Commission submitted their respective written briefs on the preliminary objections presented by the State, requesting that they be dismissed.
PROCEEDINGS BEFORE THE COURT
On November 18, 2008, the Secretariat of the Court (hereinafter “the Secretariat”), following the President of the Court’s preliminary examination, and pursuant to Articles 35 and 36(1) of the Rules of Procedure, served notice of the application to the State3 and the representatives.
On December 17, 2008, the State requested an extension of time for the appointment of an ad hoc Judge in the case. Accordingly, pursuant to instructions of the Court’s President, the State was granted an extension until January 30, 2009. On that date, the State appointed the Hon. Justice John Connell as ad hoc Judge.
On May 18, 2009, the President of the Court ordered the submission of the sworn declarations (affidavits) of the alleged victim and six expert witnesses proposed by the Commission, the representatives, and the State, to which the parties were given the opportunity to submit their respective observations. Furthermore, due to the particular circumstances of the case, the President convened the Inter-American Commission, the representatives, and the State to a public hearing in order to hear the final arguments of the parties regarding the preliminary objections and possible merits, reparations, and costs.4
On June 10, 2009, the Inter-American Commission and the representatives submitted the sworn declaration (affidavit) of Mr. DaCosta Cadogan, and the representatives submitted the sworn statements (affidavits) of Prof. Nigel Eastman, Mr. Edward Fitzgerald Q.C., and Dr. Timothy Green. On June 11, 2009, the State submitted the sworn declarations (affidavits) of Dr. Brian MacLachlan, Mr. Anthony V. Grant, and Mr. Anthony Blackman. On June 22, 2009, the State submitted its observations to the affidavit of Mr. DaCosta Cadogan, and on June 23, 2009, the Inter-American Commission and the representatives indicated they had no observations to the affidavits submitted by the other parties. On June 24, 2009, the State submitted its observations on to the affidavits of Prof. Nigel Eastman, Mr. Edward Fitzgerald Q.C., and Dr. Timothy Green.
The public hearing in this case was held on July 1, 2009, during the Court’s LXXXIII Ordinary Period of Sessions.5
On July 31, 2009, the State submitted its final written arguments, and on August 3, 2009, the Commission and the representatives did the same.
On August 19, 2009, the President of the Court requested that the representatives submit verifying receipts and evidence regarding the expenses they incurred in the present case. On September 1, 2009, the representatives submitted the evidence requested by the President. On September 9 and 11, 2009, the Commission and the State indicated, respectively, that they had no observations regarding the alleged expenses incurred by the representatives.
In its answer to the application, the State submitted the following three preliminary objections to the Court’s jurisdiction: i) lack of exhaustion of domestic remedies, ii) breach of the fourth instance rule, and iii) that the complaint no longer involved the Commission as a party. The Tribunal will proceed to analyze them in the order presented by the State.
A) Lack of Exhaustion of Domestic Remedies
In its answer to the application, the State objected to the admissibility of the case because domestic remedies have allegedly not been exhausted. In particular, the State argued that “although the [p]etitioner pursued substantially the same claims in Barbados domestic courts, his appeals were against conviction alone [and] he did not raise the potential violation of his right to a fair trial, as protected by Section 18 of the Constitution, which is the central claim in the current [p]etition.” Further, the State alleged that “the [p]etitioner therefore had, and has, available to him the right to pursue a constitutional motion to challenge all of the alleged violations of his human rights, including his rights to a fair trial or due process of law, particularly in relation to [access to adequate psychiatric expertise] and [the adequacy of legal aid].” Likewise, the State submitted that “because legal aid is in fact available in Barbados for constitutional challenges, this domestic remedy requiring exhaustion is effective, not unduly burdensome[,] and is not exceptional.” Consequently, the State alleged that “[c]onstitutional motions […] must be exhausted under the terms of Articles 46(1)(a) and 47(a) of the American Convention.” Finally, the State indicated that “[b]oth of Barbados’s notifications to the Commission regarding domestic remedies were filed subsequent to the initial report on admissibility of March 24, 2008, but before the final report, dated July 25, 2008. As such, they were transmitted in a timely manner, while the matter was still before the Inter-American Commission […], and Barbados had not waived its right to object, nor has it acquiesced in any manner.”
The Commission “consider[ed] that this objection to the admissibility of the case should be deemed inadmissible because it [had] already decided in [Admissibility] Report No. 7/08 of March 4th, 2008, that Barbados had ‘not provided observations regarding the admissibility of Mr. Cadogan’s claims [during the procedural opportunity provided for that purpose], and [had] thereby tacitly waived its right to object to the admissibility of claims in the petition based on the exhaustion of domestic remedies requirement. The information before the Commission indicates that [Mr. Cadogan] in fact exhausted the ordinary remedies applicable in this case.’” Further, the Commission observed that the letters referred to by the State in its response (supra para. 14) are dated July 4 and July 9, 2008, whereas the Admissibility Report was issued on March 4, 2008, and “[t]he State was given ample opportunity by the Commission to contest the admissibility of the petition, from its transmission to the State [on] January 23, 2007.” “Accordingly, the State waived its right to object to the admissibility of this case at the permissible stage, and it should be barred by the well established doctrine of estoppel from availing itself of this defense at a later stage in the proceedings.”
The representatives argued that in accordance with the doctrine of estoppel and Articles 37 and 46 of the American Convention, “th[e] Court has consistently held that a State may not seek to challenge the admissibility of an application on grounds of non-exhaustion of domestic remedies in circumstances where it had every opportunity to raise such objection before the Commission, but failed to do so in a timely fashion; [o]r alternatively[, that t]here are no effective domestic remedies which remain to be exhausted.” The representatives added that “[i]n the present case, the State of Barbados first raised the issue of exhaustion of domestic remedies in its [r]esponse dated 9th July 2008. This was not done in the time allotted by the Commission, [which was] two months from […] 23 January 2007, the date the request was transmitted. Thus, the Commission concluded in [its Merits Report No. 60/08 that]: ‘[t]he State did not provide observations regarding admissibility of Mr[.] Cadogan’s claims in the time allotted. […] Given that the State did not respond within this timeframe, the State thereby tacitly waived its right to object to the admissibility of claims in the petition based on the exhaustion of domestic remedies requirement.’”
On the other hand, the representatives submitted that “[i]n his petition before the Caribbean Court of Justice for leave to appeal, the alleged victim argued[,] inter alia, that his constitutional right to a fair hearing was infringed because i) he was not given and/or was deprived of the assistance [of a] psychiatric expert; ii) he did not have and/or was deprived of the effective assistance of an [a]ttorney[…], and iii) his [a]ttorney[…] was incompetent. [P]articularly, he submitted that ‘because of a lack of legal aid he was deprived of the opportunity to present evidence as to whether he was suffering from mental illness.’ Moreover, the alleged victim applied to the CCJ to adduce further evidence from a psychiatrist concerning the alleged victim’s mental health to supplement what was admitted to be the unsatisfactory Report of Dr[.] Mahy or at least that the appeal be stayed so as to permit the alleged victim the opportunity to be further examined by a psychiatric expert.” “The [Caribbean Court of Justice] denied the alleged victim leave to appeal against conviction and therefore rejected his constitutional complaints.” In any case, the representatives further submitted “that legal aid for a constitutional challenge is only available for applications to the High Court and appeals to the Court of Appeal.” Thus, “[l]egal [a]id [was] not available for any appeal from the Court of Appeal to the Caribbean Court of Justice when the alleged victim’s appeals were extant.”
This Tribunal,6 as well as the European Court of Human Rights,7 has consistently held that an objection to the Court’s exercise of jurisdiction that is based on the alleged failure of exhaustion of domestic remedies must be raised at the appropriate procedural juncture; otherwise, the State will have lost the possibility of raising that defense before this Tribunal.
In the instant case, as is evident from the file of the proceedings before the Commission, on January 23, 2007, the Commission forwarded the petition to the State for it to submit its response within a period of two months, in accordance with Article 30(3) of the Rules of Procedure of the Commission. On January 14, 2008, the Commission reiterated a request for information to the State, asking that it respond and submit its observations to the petition within one month. On January 18, 2008, the Commission requested additional information from the petitioner, which was received on February 22, 2008, and transmitted to the State so that it could submit its observations thereto. On March 4, 2008, the Commission adopted the Report on Admissibility Nº 7/08, which was notified to the State on March 24, 2008. The State submitted its first communication to the Commission on July 4, 2008, after the adoption of the Report on Admissibility.
Thus, the Court verifies that although the State had numerous procedural opportunities to raise this preliminary objection, it failed to do so until after the adoption of the Commission’s Report on Admissibility. Consequently, in light of the Tribunal’s jurisprudence on this issue,8 the Court concludes that the State failed to raise this objection at the appropriate procedural moment, and it is therefore dismissed.
B) Breach of Fourth Instance Rule
The State also objected to the admissibility of all claims relating to the alleged victim’s diminished responsibility for the crime of murder and the effectiveness of his legal representation. According to the State, these claims “amount to a thinly disguised attempt to use the Inter-American processes as a fourth instance of appeal and are therefore inadmissible.” The State argued that “[i]nternational human rights jurisprudence is clear and consistent in prohibiting the use of international bodies as a fourth instance of domestic appeal.” Further, “[i]t is well established that bodies such as the Inter-American Commission o[n] Human Rights and this […] Court cannot ‘act as appellate bodies with the authority to examine alleged errors of domestic law or fact that national courts may have committed while acting within their jurisdiction.’” Therefore, “if a petition ‘contains nothing more than the allegation that the domestic court’s decision was wrong or unjust, [the Commission] must apply the fourth instance formula and declare the petition inadmissible ratione materiae.’” In the present case, “the [p]etition is almost identical […] to the Amended Notice of Application, which was submitted by the [p]etitioner’s counsel to the Caribbean Court of Justice. All of the grounds of appeal of the Amended Notice of Application, […] - including arguments on diminished responsibility and the effectiveness of legal representation – were definitively dismissed by the Caribbean Court of Justice in the [p]etitioner’s appeal.” Thus, “the State […] submit[ted] that […] the [p]etition [i]s inadmissible.”
In this regard, “the Commission consider[ed] that the arguments submitted by the State do not give rise to the need for observations from it on this matter.”
The representatives contended that “[Mr. Cadogan’s] complaints go far beyond the simple allegation that the CCJ’s decision was wrong or unjust.” The alleged victim “contended that [his] treatment during the course of [the] trial in relation to the defense of diminished responsibility and the inadequacy of his legal representation constitute violations of his Convention rights.” Thus, the alleged victim “ask[ed] the Court to determine whether the State of Barbados is responsible for the violation of the American Convention, a matter which clearly falls within the jurisdiction ratione materiae of the Court.”
This Court considers that the application submitted by the Inter-American Commission does not seek to review the judgments of domestic courts or of the Caribbean Court of Justice, but rather seeks a pronouncement that the State violated several precepts of the American Convention to the detriment of Mr. Cadogan, including the right to a fair trial and the right to life. On numerous occasions, this Tribunal has held that clarification of whether the State has violated its international obligations owing to the actions of its judicial bodies may lead to a situation in which the Court must examine the respective domestic proceedings in order to establish their compatibility with the American Convention. In light of this, the consideration of domestic proceedings must take into account all decisions, including those of the courts of appeal, and in this case the Caribbean Court of Justice.9
Consequently, the Court considers that the claims relating to the alleged victim’s diminished responsibility for the crime of murder and the effectiveness of his legal representation are questions directly linked to the merits of the controversy that may be examined by this Tribunal in light of the American Convention without contravening the “fourth instance” rule. The preliminary objection is therefore dismissed.
C) The Commission as a Party in this Process
The State emphasized “that all of the complaints in the present case [that] are identified by the Commission in its [a]pplication, except one aspect of the relief requested, have been resolved by the State.” “[T]he State submit[ed] that [the] only […] outstanding issue [is] that of commutation[, and argued that the] process for such relief may at any time be initiated [domestically] by the [p]etitioner himself.” Thus, “the only complainant with juridical personality to appear before the Court no longer has any substantive basis of complaint under Inter-American human rights norms.” Therefore, the State submitted “that the case should be withdrawn by the Commission, or struck out on the Court’s own initiative.”
“[T]he Commission considere[d] that the willingness expressed by the State to abolish mandatory [death] sentencing and to repeal the ‘savings clause’ represents an important step forward in the process of bringing domestic law and practice into compliance with the standards of the American Convention.” However, “while recognizing the importance of the decisions reported by the State, the Commission observe[d] that they must be codified in law and implemented in practice before they can be considered to have an effect on the resolution of the instant case. The willingness to address these matters, although important, is not sufficient to resolve the central claims raised.” In addition, “[a]s in the Boyce case, Mr. Cadogan still has no legal certainty that he will not face execution unless and until his sentence is formally commuted. In conclusion, this aspect of relief has not been resolved by Barbados.”
The representatives requested that the Court dismiss this preliminary objection, arguing that “while the State […] has undertaken to take steps to comply with the order of the Court in the Boyce et al. v. Barbados case [to abolish the mandatory aspect of the death penalty,] the fact is that it has not yet done so.” The representatives observed that “while the State […] is bound by the Court’s decision in Boyce et al. v. Barbados to concede that the alleged victim’s rights under the Convention have been violated by the failure to accord him the right to an individuali[z]ed sentencing hearing, [the alleged victim] is now entitled to reparation of his own for the violation of his rights.” Additionally, the representatives alleged that “in any event, the Commission is not empowered by […] the American Convention or […] the Rules of Procedure […] to withdraw the case from the Court. […] Further, the Court’s power to strike out a case under Article (1) of the Rules of Procedure of the Court applies only where the parties to a case inform the Court of the existence of a friendly settlement, compromise, or any other occurrence likely to lead to a settlement of the dispute. Neither the alleged victim nor the Commission, as far as the alleged victim is aware, has informed the Court of any such matters.” In conclusion, the representatives submitted that the claims presented in this case are not moot, as “there is as yet no order from this Court in relation to the alleged victim with which the State of Barbados can comply.”
The Court observes that the Commission and the representatives alleged that the State is responsible for certain violations of the American Convention to the detriment of Mr. Cadogan that have not yet been redressed by the State, and that the State has expressed a willingness to redress them in light of the Boyce et al. case, in which this Tribunal ordered some of the reparations sought in the present case. In this regard, the Court recognizes the State’s expressed willingness to fully comply with what was ordered in the Boyce et al. Judgment and that the State is adopting measures intended to reform its laws and Constitution so that they conform to the American Convention and this Court’s jurisprudence. Accordingly, the Tribunal positively values the State’s disposition, which constitutes a significant contribution towards the reparation of the violations declared in the Boyce et al. case, which also relate to the present case.
Nonetheless, the Tribunal hereby reiterates that a State’s international responsibility arises immediately when it commits an act that is unlawful under international law,10 and that a willingness to domestically redress that unlawful act does not prevent either the Commission or the Court from hearing the case.11 That is, pursuant to the Preamble to the American Convention, the international protection afforded by that instrument “reinforc[es] or complement[s] the protection provided by the domestic law of the American states.” Consequently, where the State fails to fully comply with its obligation to remedy a violation of rights recognized under the American Convention, this Tribunal may exercise its jurisdiction over the alleged unlawful act (provided that the procedural requirements of the Convention are met), declare the existence of the corresponding violations, if applicable, and order the appropriate reparations pursuant to Article 63(1) of the Convention. Therefore, the Court considers that the actions that the State said it would adopt to eventually redress the alleged violations committed against Mr. Cadogan may be relevant to the Court’s analysis of the merits of the case and to the eventual reparations it may order, but they have no effect over the Court’s exercise of jurisdiction over the case. Consequently, the Tribunal dismisses the State’s preliminary objection.
The Inter-American Court has jurisdiction over this case in accordance with Article 62(3) of the Convention. The State of Barbados ratified the American Convention on Human Rights on November 27, 1982, and recognized the Court’s contentious jurisdiction on June 4, 2000.
Based on the provisions of Articles 46 and 47 of the Rules of Procedure, as well as the constant jurisprudence of the Court regarding evidence and the assessment thereof,12 the Court shall examine and assess the evidence contained in the case file.
Documentary, Testimonial, and Expert Evidence
At the request of the President,13 the Court received the declarations by affidavit provided by the alleged victim and six expert witnesses:
Tyrone DaCosta Cadogan, alleged victim whose declaration was proposed by the Commission and the representatives, testified on the process that led to the imposition of the mandatory death penalty in his case, and the consequences thereof;
Prof. Nigel Eastman, expert witness proposed by the representatives, is a professor of law and ethics in psychiatry and Head of Forensic Psychiatry of St. George’s University of London. He testified on the relevance of the alleged victim’s mental state to his conviction and sentence, and on the relevance of mental health in death penalty cases from a medical perspective;
Edward Fitzgerald Q.C., expert witness proposed by the representatives, is a specialist in criminal law, public law, and international human rights law, with significant experience in death penalty appeals. He testified on the relevance, from a legal perspective, of mental state to both conviction and sentencing in death penalty cases;
Dr. Timothy Green, expert witness proposed by the representatives, is a clinical psychologist. He testified on his psychological examination of the alleged victim and his subsequent psychological report concerning the alleged victim’s mental state in relation to defenses at trial and the imposition of the death penalty;
Anthony V. Grant, expert witness proposed by the State, is Director of Community Legal Services and an expert on the Barbadian community legal services system. He testified on the requirements for legal aid in death penalty cases;
Anthony Blackman, expert witness proposed by the State, is the Principal Crown Counsel of the Department of Public Prosecution. He testified on the law and procedure related to the defense of diminished responsibility in death penalty cases, and
Dr. Brian MacLachlan, expert witness proposed by the State, is a consultant psychiatrist at the Barbados Psychiatric Hospital and has provided expert psychiatric evidence in the law courts of Barbados. He testified as to psychiatric assessments in death penalty cases in Barbados.
In the case at hand, as in many others,14 the Court, in accordance with Article 46 of the Rules of Procedure, admits and recognizes the evidentiary value of the documents submitted by the parties at the appropriate procedural stage which have neither been disputed nor challenged, and the authenticity of which has not been questioned (supra paras. 9 and 12).
With respect to the expert opinions rendered by the expert witnesses that were not objected to by the parties, the Court deems them pertinent insofar as they comport with the scope defined by the Order of the President (supra para. 8), and admits them to be weighed within the context of the body of evidence in this case and in accordance with the rules of sound judgment.
With respect to the expert testimony of Anthony Blackman, which the State offered extemporaneously, the Court notes that its admissibility has not been challenged by the parties, and finds it useful and relevant to the resolution of the issues in the present case regarding the defense of diminished responsibility in death penalty cases. Therefore, the Court incorporates it into the body of evidence, pursuant to Article 47(1) of the Rules of Procedure, and will weigh it along with other evidence in this case and in accordance with the rules of sound judgment.
With respect to the declaration of the alleged victim, the State challenged “the accuracy of Mr. [DaCosta] Cadogan’s recollection of the events surrounding his detention, discussions with his lawyer, his trial, sentence[,] and appeal.” Additionally, the State noted that there has never been a prison named “Glendairy Point,” which was referred to in paragraph 4 of Mr. Cadogan’s affidavit. Nevertheless, the State did not challenge the admissibility of this declaration, but rather the weight the Court should give it with regard to certain facts alleged. The Court therefore admits this evidence to the extent that it relates to the object and purpose established in the Order of the President (supra para. 8), taking into account the observations of the State. Furthermore, the Court considers that due to the alleged victim’s direct interest in this case, his declaration cannot be assessed separately, but rather must be weighed within the context of the body of evidence in this case and in accordance with the rules of sound judgment.15
Additionally, the State challenged the affidavits submitted by Edward Fitzgerald C.B.E., Q.C., Dr. Timothy Green, and Professor Nigel Eastman. Regarding Mr. Fitzgerald’s affidavit, the State questioned certain aspects of his expert opinion regarding the relevance of mental state to both conviction and sentencing in death penalty cases. Furthermore, the State affirmed that the affidavit offers “no evidence […] to prove that there is a ‘norm of international law prohibiting both the judicial imposition of the death penalty, and the actual execution of a person suffering from significant mental disorder,’ or that such a norm has achieved jus cogens status”. Regarding Dr. Timothy Green’s affidavit, the State indicated that it “add[ed] nothing to [the alleged victim’s] case[, as it merely] describes, in the words of the Caribbean Court of Justice, an ‘adolescent and adult life style [which] is very like the usual aberrant behavior of thousands of under-privileged young men indulging in some marijuana while over-indulging in alcohol.’” Finally, regarding Professor Nigel Eastman’s affidavit, the State indicated that he had not examined Mr. Cadogan and his affidavit “entirely relies upon the affidavits and reports previously submitted to the Court.” Nevertheless, the State did not challenge the admissibility of these declarations, but rather the weight the Court should give them with regard to certain alleged facts or opinions the State contests. The Court therefore admits this documentary evidence to the extent that it relates to the object and purpose established in the President’s Order (supra para. 8), taking into account the observations of the State, and will weigh them in accordance with the rules of sound judgment and in conjunction with the body of evidence in the proceedings.
Having examined the evidence in the case file, the Court will proceed with its analysis of the alleged violations of the American Convention in light of the facts that it deems proven, as well as the parties’ legal arguments.16
Violation of Article 4(1)17 and 4(2)18 of the Convention
in relation to Article 1(1)19 thereof
In this chapter, the Court will address the parties’ arguments on whether the imposition of a mandatory death sentence on the alleged victim violated his right to life.
The Commission alleged that “sentencing individuals to the death penalty through mandatory sentencing and absent consideration of the individual circumstances of each offender and offense leads to the arbitrary deprivation of life within the meaning of Article 4(1) of the Convention,” and “fails to limit the application of the death penalty to the most serious crimes, in contravention of Article 4(1) and 4(2)” of that instrument. According to the Commission, “Section 2 of the Offences Against the Person Act[, hereinafter “OAPA”, which] simply states that where a person is found guilty of murder, that person shall be sentenced to death[,] fails to differentiate between intentional killings punishable by death, and intentional killings (not merely manslaughter or other lesser form of homicide) that would not be punishable by death.” Additionally, mandatory death sentencing fails to provide a defendant with the opportunity “to present submissions and evidence in respect of all potentially mitigating circumstances relating to his or her person[, such as his or her] degree of culpability[, as well as] the offender’s character and record, subjective factors that might have motivated his or her conduct, the design and manner of execution of the particular offense, and the possibility of reform and social readaptation of the offender.” Thus, the Commission alleged that the State is responsible for the violation of Article 4(1) and 4(2) of the Convention because Mr. Cadogan “was not given an opportunity to present evidence of mitigating factors, nor did the courts have discretion to consider evidence of this nature in determining whether the death penalty was an appropriate punishment in the circumstances of [his] case.”
On the other hand, the Commission alleged that “the essential respect for the dignity of the individual that underlies Article 5(1) and 5(2) of the Convention [cannot be reconciled] with a system that deprives an individual of the most fundamental of rights without considering whether this exceptional form of punishment is appropriate in the circumstances of the individual’s case. In sum, the Commission f[ound] that the treatment of Mr. Cadogan in this manner abrogates the fundamental respect for humanity that underlies his right to be protected under Article 5(1) and (2) of the Convention.”
Finally, the Commission indicated that “Article 4(6) of the American Convention, when read together with Articles 8 and 1(1), places the State under the obligation to […] implement a fair and transparent procedure by which an offender sentenced to death may make use of all favorable evidence deemed relevant to the granting of mercy.” Additionally, the Commission alleged that “due process guarantees should […] be interpreted to include a right of effective review or appeal” as to the appropriate punishment in the circumstances of each case.
The representatives alleged the same violations of the American Convention as the Commission, and argued that “the mandatory death sentence condemn[ed the alleged victim] to death without consideration of his individual humanity. It subject[ed] him to an arbitrary deprivation of life, contrary to Article 4(1) of the Convention[, and i]t fail[ed] to ensure that the penalty of death [will be] imposed only for the most serious crimes, as required by Article 4(2) [of the Convention]. […] Further, contrary to Article 5(1) and (2) [of the Convention], it is cruel and inhuman and degrades his inherent dignity as a human person by not treating him as a uniquely individual being.” The representatives further submitted that “[t]he imposition of the death sentence on someone suffering from a mental illness is […] inhuman and degrading” and a violation of the right to personal integrity recognized in Article 5(1) and 5(2) of the Convention. Finally, the representatives alleged that a mandatory death sentence “precludes any opportunity on the part of an offender to make representations to the court as to whether the death penalty is a permissible or appropriate form of punishment. It also prevents any effectivereview by a higher court as to the propriety of a sentence of death in the circumstances of any particular case. […] As a consequence, individuals subjected to this law cannot effectively exercise their right to a hearing, with due guarantees, by an independent tribunal (Article 8(1)) and their right to appeal the judgment to a higher court (Article 8(2)(h)). [The representatives therefore] submitted that the mandatory death penalty is also in violation of Article 8 of the Convention.”
The State did not dispute the Commission and the representatives’ arguments on the issue of whether a mandatory death sentence imposed in light of Section 2 of OAPA violates the American Convention. Rather, the State mentioned that “all of the grounds of complaint advanced in the [a]pplication of the Commission, except for one aspect of the relief requested in that [a]pplication, [namely, the issue of the commutation of the alleged victim’s death sentence,] will be satisfied upon completion of the necessary legislative changes” ordered by this Tribunal in the Boyce et al. case, which the State intends to comply with fully (supra para. 26).
This Tribunal has already analyzed the issue of mandatory death sentencing in Barbados in the Boyce et al. Judgment.20 The Court observes that the present case does not submit before this Tribunal new issues regarding the imposition of mandatory death sentencing in Barbados, except for the allegations concerning Articles 5 and 8 of the Convention (infra paras. 60 to 62). The Court considers that its position on this issue has been clearly established in previous cases, particularly in the Boyce et al. case, and, therefore, it would appear unnecessary to request additional findings from the Court in that regard. Nonetheless, because the Commission decided to submit the present case to this Court’s contentious jurisdiction, the Tribunal deems it pertinent to reiterate the criteria established in previous occasions on the issue of mandatory death sentencing.
In interpreting the issue of death penalty in general, the Court has observed that Article 4(2) of the Convention allows for the deprivation of the right to life by the imposition of the death penalty in those countries that have not abolished it. That is, capital punishment is not per se incompatible with or prohibited by the American Convention. However, the Convention has set a number of strict limitations to the imposition of capital punishment.21 First, the imposition of the death penalty must be limited to the most serious common crimes not related to political offenses.22 Second, the sentence must be individualized in conformity with the characteristics of the crime, as well as the participation and degree of culpability of the accused.23 Finally, the imposition of this sanction is subject to certain procedural guarantees, and compliance therewith must be strictly observed and reviewed.24
Specifically, in addressing the issue of mandatory death sentencing in other cases, the Court has held that the reference to “arbitrary” in Article 4(1) of the Convention and the reference to “the most serious crimes” in Article 4(2) render the imposition of mandatory death sentences incompatible with those provisions where the same penalty is imposed for conduct that can be vastly different, and where it is not restricted to the most serious crimes.25
The provisions of the Convention regarding the imposition of the death penalty must be interpreted in view of the pro persona principle, that is to say, they should be interpreted in favor of the individual26 as “impos[ing] restrictions designed to delimit strictly its application and scope, in order to reduce the application of the death penalty to bring about its gradual disappearance.”27
A.1) The limitation of the application of the death penalty to the “most serious crimes”
The Court has previously held that the
intentional and illicit deprivation of another’s life (intentional or premeditated murder, in the broad sense) can and must be recognized and addressed in criminal law under various categories (criminal classes) that correspond with the wide range of seriousness of the surrounding facts, taking into account the different facets that can come into play: a special relationship between the offender and the victim [e.g. infanticide], motives for the behavior [e.g. for reward or remunerative promise], the circumstances under which the crime is committed [e.g. brutality], the means employed by the offender [e.g. poison], etc. This approach allows for a graduated assessment of the seriousness of the offence, so that it will bear an appropriate relation to the graduated levels of gravity of the applicable punishment.28
The Convention thus reserves the death penalty for the most serious crimes. Notwithstanding, Section 2 of the Offences Against the Person Act compels the indiscriminate imposition of the same punishment for conduct that can be vastly different,29 which is contrary to what the Convention establishes.
In the Boyce et al.case, this Court held that Section 2 of OAPA contravenes Article 4(2) of the Convention, as it does not confine the application of the death penalty to the most serious crimes.30 In the present case, Mr. DaCosta Cadogan was sentenced to death pursuant to Section 2 of OAPA. The Court sees no reason to depart from its previous jurisprudence, and therefore finds that the application of Section 2 of OAPA to Mr. DaCosta Cadogan resulted in a violation of Article 4(2) of the Convention to his detriment.
A.2) The arbitrariness of the mandatory death penalty
This Tribunal has previously held that a lawfully sanctioned mandatory sentence of death may be arbitrary where the law fails to distinguish the possibility of different degrees of culpability of the offender and fails to individually consider the particular circumstances of the crime.31 With regard to Section 2 of OAPA, the Court has previously found that it lawfully sanctions the death penalty as the one and only possible sentence for the crime of murder,32 and that the law does not allow the imposition of a lesser sentence in consideration of the particular characteristics of the crime or the participation and degree of culpability of the defendant.33
In this regard, the Court has previously held that to consider all persons responsible for murder as deserving of the death penalty is to “trea[t] all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the death penalty.”34
The strict observation of certain due process rights and procedures is essential in evaluating whether the death penalty has been imposed arbitrarily.35 In accordance with the law in Barbados, the availability of statutory and common law defenses and exceptions for defendants in death penalty cases are relevant only for the determination of the guilt or innocence of the accused, not for the determination of the appropriate punishment that should be imposed once a person has been convicted. That is, a defendant in a capital punishment case may attempt to escape a guilty verdict by claiming certain common law defenses to a charge of murder.36 These defenses seek to escape a conviction for murder and replace it with one for manslaughter, for example, which carries a sentence of life imprisonment, or even to totally exclude criminal liability for murder.37 Nevertheless, if and when a defendant is found guilty of the crime of murder, the law does not allow the judge any latitude to consider the degree of culpability of the defendant or other forms of punishment that may be better suited for that particular person in light of all circumstances. That is, courts have no authority to individualize the sentence in conformity with information on the offense and the offender.
On the other hand, the Court has previously considered that in analyzing the mandatory death penalty system in Barbados, a distinction must also be made between the right under Article 4(6) of the Convention of every convicted person to “apply for amnesty, pardon, or commutation of sentence,” and the right recognized in Article 4(2) to have a “competent court” determine whether the death penalty is the appropriate sentence in each case, in accordance with domestic law and the American Convention. In that regard, the Court has held that sentencing is a judicial function. Although the executive branch may well grant pardon or commutation of a sentence already imposed, the judicial branch may not be stripped away of its responsibility to impose the appropriate sentence for a particular crime. In the present case, the judicial branch had no other option than to sentence the alleged victim to death when he was found guilty of murder, and no judicial review of the punishment of death was allowed because it is a punishment specifically fixed by law.38
In sum, regardless of the available defenses for the determination of a murder conviction, and despite the possibility to apply to the executive branch for a commutation of a death sentence, the Court considers that in the determination of punishment, Section 2 of the Offences Against the Person Act mechanically and generically imposes the death penalty on all persons found guilty of murder. This, as the Tribunal has previously held,39 is in contravention of the prohibition of the arbitrary deprivation of the right to life recognized in Article 4(1) of the Convention, as it fails to individualize the sentence in conformity with the characteristics of the crime, as well as the participation and degree of culpability of the accused.
In light of these facts, the Court concludes that because the Offences Against the Person Act submits all persons charged with murder to a judicial process in which the participation and degree of culpability of the accused and the individual circumstances of the crime are not considered, the application of the aforementioned law to Mr. DaCosta Cadogan violated the prohibition against the arbitrary deprivation of life and failed to limit the application of the death penalty to the most serious crimes, in contravention of Article 4(1) and 4(2) of the Convention.
Therefore, the Court considers that Barbados has violated Article 4(1) and 4(2) of the Convention, in conjunction with Article 1(1) thereof, to the detriment of Mr. DaCosta Cadogan.
With regard to the Commission and representatives’ allegations that the mandatory death penalty in Barbados is also in violation of Article 8 of the Convention, the Court already declared, as in previous cases,40 that the strict observation of certain due process rights and procedures are essential in evaluating whether the death penalty has been imposed arbitrarily.41 Nevertheless, the Court will further address in Chapter VIII of this Judgment some of the additional issues submitted by the representatives with regard to Mr. DaCosta Cadogan´s right to a fair trial in this case.
Furthermore, the Court considers, as in previous cases,42 that the allegations regarding a violation of Article 5 of the Convention due to the mandatory imposition of a death sentence, without due consideration of the particular circumstances of the crime and of the accused, properly fall under the framework of Article 4 of that treaty, which has already been analyzed (supra paras. 50 to 59).
The representatives alleged, additionally, that the State violated Article 5 of the Convention because the imposition of the death penalty “on someone suffering from a mental illness” constitutes cruel and inhumane treatment (supra para. 44). With regard to this second allegation, the Tribunal considers that such an analysis requires that the Court deem proven that Mr. DaCosta Cadogan in fact suffered or suffers from a mental illness. In this regard, the Court observes that this alleged fact is precisely the subject of the controversy that will be analyzed in chapter VIII of this Judgment in relation to the alleged violation of Mr. DaCosta Cadogan´s right to a fair trial due to the refusal of the domestic courts to allow him to submit additional evidence on his mental state. Since the alleged fact on which the representatives wish to sustain the alleged violation of Article 5 of the Convention has not been proven, the Tribunal does not find that the international responsibility of the State has been established.