Report No. 104 (2009) IACHR. Petition No. 588-07 (Jamaica)

• Petition Number: 588-07
• Year: 2009
• Report Number: 104
• Respondent State: Jamaica
• Case Type: Admissibility
• Court: Inter-American Comission of Human Rights
• Alleged Victim: Patrick Genius y Leonie Marshall, Jamaica

REPORT Nº 104/09 PETITION 588-07 ADMISSIBILITY PATRICK GENIUS & LEONIE MARSHALL jamaica October 30, 2009 i. SUMMARY 1. On May 11, 2007, the Inter-American Commission on Human Rights (the “IACHR” or the “Inter-American Commission”) received a petition against the State of Jamaica (“Jamaica” or the “State”) filed by Arturo Carrillo, director of the International Human Rights Clinic of the George Washington University Law School and Carolyn Gomes, Executive Director of Jamaicans for Justice, (the “petitioners”) on behalf of Patrick Genius (“Mr. Genius” or the “alleged victim”) and his mother, Leonie Marshall (“Ms. Marshall”). According to the petition, Mr. Genius was shot to death by Jamaican police officers on December 13, 1999, in circumstances which the petitioners allege amount to an extra-judicial execution. 2. The petitioners allege that the State failed to undertake an effective investigation into the circumstances of Mr. Genius’ death and further failed to take steps to prosecute the police officers, in breach of Articles 4, 5, 13, 8 and 25 of the American Convention, in conjunction with Articles 1(1) and 2 of the same instrument. 3. The State denies that it violated the rights of either Mr. Genius or his mother, contending that Patrick Genius was lawfully killed by the police officers, in exercise of their right to self-defense and that there was insufficient evidence to prosecute the police officers, as confirmed by the Jamaican courts. Finally, the State claims that the petition is inadmissible because domestic remedies were not exhausted as required by the American Convention. 4. As set forth in this report, having examined the contentions of the petitioners on the question of admissibility and without prejudging the merits of the matter, the Inter-American Commission concludes that the case is admissible, inasmuch as it meets the requirements provided in Articles 46 and 47 of the American Convention. Based on the foregoing, the IACHR decides to notify the parties of its decision and to continue with its analysis of the merits as regards alleged violation of Articles 1(1), 2, 4, 5, 13, 8 and 25 of the American Convention. II. PROCESSING BY THE INTER-AMERICAN COMMISSION 5. The Inter-American Commission acknowledged receipt on May 15, 2007 and transmitted the pertinent parts to the State, requesting its observations thereon, within two months, by a communication dated October 11, 2007. 6. By note dated January 4, 2008, received on January 7, the State informed the IACHR that it was unable to submit its response in the time frame specified and requested an extension of thirty days to do so. On February 1, 2008, the IACHR received the State’s response and acknowledged receipt thereof on February 13, 2008. On the same date, the Inter-American Commission transmitted the State’s response to the petitioners, with a request that they provide their additional observations within one month. 7. The Inter-American Commission ultimately received additional observations from the petitioners on May 20, 2008, the pertinent parts of which were transmitted to the State on the same date with a request that it provide its observations thereon within one month. 8. By a communication dated June 20, 2008, the State requested a two-week extension to submit information. On October 14, 2008, the State transmitted its additional observations to the IACHR, which acknowledged receipt on December 19, 2008, and duly transmitted them to the petitioners on the same date with a request that they submit their observations, if any, within one month. On January 8, 2009 the petitioners requested an additional month to submit their observations, which were ultimately received at the IACHR on February 27 and transmitted to the State on August 11, 2009. III. Positions of the Parties A. The petitioners 9. The petition states that on December 13, 1999, Patrick Genius was fatally shot by three members of the Jamaican Constabulary Force (the “JCF”). According to the petition, the shooting occurred at Mona in the parish of Saint Andrew, Jamaica. 10. The petitioners challenge the State’s claim that the police officers acted lawfully in killing Mr. Genius. By way of background, the petitioners note the State’s account of the events leading to Mr. Genius’ death, as set out below: a) The policemen were following two individuals on a motorcycle, whom they suspected had participated in a robbery. b) While the two suspects were stopped on the side of the road, they saw the police approaching them, pulled handguns from their waists and fired shots in the direction of the policemen. One of the suspects escaped with the motorcycle. The other suspect, later identified as Patrick Genius, climbed a fence into the grounds of a school and ran across the playfield. c) The police tried to shoot him while he was climbing the fence and later pursued him across the field, shooting again in his direction. At one point, Patrick Genius was hiding in some bushes and shot at the policemen, who shot back. At the end of this shoot-out, Patrick Genius was shot in the head and fell on the ground, mortally injured. d) The policemen found documents on the body bearing the name of Patrick Genius, along with a set of keys. They subsequently searched Mr. Genius’ home and found jewelry, three cellular phones and a silver pen, which had been reported as stolen property. The police officers also attempted to search Leonie Marshall’s house, stating that they were looking for arms. 11. The petitioners reject this version of events, contending that Patrick Genius never posed a threat to the police officers, and that he was under their custody and control when he was fatally shot. According to the petitioners, witnesses to the shooting state that Genius was detained by several plain clothes officers travelling in an unmarked police car and had his hands in the air before being shot in the head at close range. The petitioners claim that the items recovered from Genius’ home belonged to him and that both searches were carried out improperly and without a warrant. 12. The petitioners allege that the police investigation into the death of Mr. Genius was belated, incomplete and deficient. Specifically, the petitioners allege that: the scene of the crime was not preserved; the agents responsible for the killing were the same responsible for gathering evidence; no witnesses were sought; no fingerprints were taken on the weapon allegedly found in possession of Mr. Genius; the gun allegedly used by Genius against police officers was only brought and registered as evidence the next day; and there has been no independent inspection or independent forensic examination in order to recover physical or testimonial evidence. The petitioners contend that these failures allowed the police officers to contaminate the evidence. 13. Moreover, the petition indicates that swabs were only taken from the hands of the police agents at 9PM and from the hands of Genius at 10PM on December 13, 1999. The petition states that as a result, no trace of gunshot residue was found on the swabs taken from the hands of any of the officers. The petition further states that the forensic scientist nonetheless found gunshot residue on the swab from the palm of the right hand of Patrick Genius, but no residue on the swabs from the back of the hand, although the forensic scientist stated that one would expect an elevated level of residue to be deposited on the back of the firing hand. The petitioners also allege that the forensic scientist explained that cleaning hands or sweating can leave little or no trace of gunshot residue and added that the amount of residue found on the palm of Genius’ hand could have also been transferred there by rubbing. The position of the petitioners is that Mr. Genius never had a gun, that he did not fire at the police officers and that the gunshot residue was in fact transferred on his hands by residue present on the police officers’ hands. 14. The petitioners state that despite the request of Genius’ family to be informed of the date and time of the autopsy, they were not informed in a timely manner, resulting in the inability to appoint an independent pathologist to witness the autopsy proceedings. The petition indicates that on December 30, 1999, a forensic pathologist appointed by the State conducted the post mortem examination of the body of Patrick Genius and found five gun shots on the body, all shot from behind. The State’s forensic pathologist found that the wounds were consistent with the scenario of a person running away from other persons and maybe turning his head when hit. He further attributed the death to the gunshot wound to the head. The petitioners claim in contrast that the pattern of injuries described indicates the likelihood of a deliberate incapacitation followed by killing and is in any case not consistent with the police officers’ statement that Genius died as a result of the shoot-out that occurred, as none of the bullets were received on the front part of his body. 15. The petition indicates that the Bureau of Special Investigations (“BSI”) was charged with investigating the matter on December 20, 1999 but that in fact, police investigators did not initiate an investigation until five months after the shooting took place, when statements were requested from family members. The BSI sent the file to the Director of Public Prosecution (“DPP”) on February 24, 2000, which ruled on March 3, 2000 that the matter should be examined by a Coroner’s Inquest. 16. The Coroners Inquest took place in April and May 2001 and the petition indicates that Ms. Marshall attended each day of the sitting. On May 29, 2001, after nine sittings, the jury allegedly found that persons were criminally responsible for the...