Report No. 289 (2020) IACHR. Petition No. 2187-13 (Jamaica)

Case TypeAdmissibility
Respondent StateJamaica
CourtInter-American Comission of Human Rights
R. No. 289/20
















REPORT No. 289/20

PETITION 2187-13

REPORT ON ADMISSIBILITY


FREDRICK MALCOLM “MICKEY” HILL AND FAMILY

JAMAICA


OEA/Ser.L/V/II.

D.. 306

12 October 2020

Original: English



























Approved electronically by the Commission on October 12, 2020.






Cite as: IACHR, R. No. 289/20, Petition 2187-13. A.. Fredrick Malcolm “Mickey” H. and Family. Jamaica. October 12, 2020.





www.iachr.org


I. INFORMATION ABOUT THE PETITION

Petitioner:

International Human Rights Clinic of the L.L.S.

:

Fredrick Malcolm “Mickey” H. and family1

Respondent S.:

Jamaica2

Rights invoked:

Articles 4 (Life), 5 (Humane Treatment), 8 (Fair Trial), 25 (Judicial Protection) of the American Convention on Human Rights3, in relation to its Article 1.1 (Obligation to respect rights) and 2 (Domestic Legal Effects)

II. PROCEEDINGS BEFORE THE IACHR4

Filing of the petition:

J. 21, 2013

Additional information received at the stage of initial review:

May 19, 2014, November 16, 2016

N. of the petition to the S.:

May 8, 2019

S.’s first response:

J. 1, 2020

III. COMPETENCE

Competence Ratione personae:

Y.

Competence Ratione loci:

Y.

Competence Ratione temporis:

Y.

Competence Ratione materiae:

Y., deposit of the instrument of ratification of the American Declaration on J. 19, 1978

IV. DUPLICATION OF PROCEDURES AND INTERNATIONAL RES JUDICATA, COLORABLE CLAIM, EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION

Duplication of procedures and International res judicata:

No

Rights declared admissible

Articles 4 (life), 5 (humane treatment), 8 (fair trial) and 25 (judicial protection) of the American Convention, in relation with its Articles 1.1 (obligation to respect rights) and 2 (domestic legal effects)

Exhaustion of domestic remedies or applicability of an exception to the rule:

Y., exception set forth in Articles 46.2. c applies

Timeliness of the petition:

Y., under the terms of Section VI

V. ALLEGED FACTS

  1. The petitioners denounce the extrajudicial execution of the alleged victim, F.M.“.H., by a police officer, on November 4, 2010, as well as the failure of the S. to carry out proper, timely and diligent investigation and prosecution. T. claim the relatives of the alleged victim has been denied a fair hearing as a result. T. condemn a widespread pattern of extrajudicial executions in Jamaica and structural defects in the criminal investigation of these incidents, resulting in a virtually absolute impunity for these killings5.

  2. The petitioners allege that M.H. was shot and killed without justification on November 4, 2010, in Negril, by an officer of the Jamaican Constabulary Forcers (hereinafter JCF), one of Jamaica’s security forces, and allegedly amongst the deadliest in the world per capita6. The petitioner indicates that the official version from the police differs greatly from the version of six eyewitnesses present at the scene of the crime. The latter allege that on the morning of the event, the alleged victim was chatting with his brothers at a small snack shop operated by them, next to the Sunrise Club Hotel, having set on the ground his grocery bags containing a packet of corn meal, a tin of condensed milk, and a small bag of dog food. At approximately 9:15 a.m., a blue police van with tinted windows, carrying officers of the JCF from Spanish Town, pulled over near the Sunrise Hotel, purportedly to investigate information about gunmen on the hotel premises. Six to eight officers got off the van, carrying MI6 automatic rifles and approached the group. The petitioners indicate that all officers but one, Sergeant Malica R., were in uniform and wearing kerchiefs or masks to cover their faces. The officers ordered the group to stand up, and asked Mickey H. for cornmeal and condensed milk. When he stood up, Sergeant R. fired a three-shot burst at him, hitting him twice, once in the chest, and once in his neck. The alleged victim died immediately. The petitioners allege that right after the shooting, H.’s sister-in-law looked at Sergeant R. and said "God yu kill him." The officers pointed their guns at the rest of the group and threatened to shoot them too if they did not go home. Some of the people present refused to leave the scene and a second van arrived, carrying reinforcements from the JCF. An agitated crowd then gathered to try to stop the officers from leaving, but the spectators were moved away and the Spanish Town force’s bus was allowed to leave. The petitioners indicate that an ambulance that had been dispatched to the scene left empty and instead, four officers lifted M.H.'s body by each holding an arm or leg and tossed him in the back of a pickup truck, refusing to give his family information about where his body was being taken. He was eventually transported to the Savannala-mar hospital, thirty minutes from Negril, where he was declared dead. The petitioners allege that the police force claim that M.H. was shot during a shootout with gunmen who managed to escape the hotel, and that the police officer would have fired at the alleged victim in self-defense. The police added that after the shootout they recovered a gun under a palm tree on the hotel grounds, near the alleged victim’s body. None of the other witnesses indicates having seen a firearm, though it would have been in plain view. The serial number of the allegedly recovered gun was later determined to match that of a pistol found at the scene of another killing in which the same JCF unit was involved. F., the petitioners submit that according to Sergeant R.'s own account of the incident, M.H. was not one of the alleged gunmen who supposedly fired upon the officers.

  3. The petitioners indicate that on November 5, 2010, the Bureau of Special Investigations (hereinafter “BSI”) began an investigation into the killing of the alleged victim. On November 9, 2010, the Independent Commission of Investigations (hereinafter “INDECOM”), and independent commission of the Parliament which gradually replaced the BSI as the main investigator of incidents involving fatal shootings by police, also began an investigation into the killing, receiving statements from seven eyewitnesses to the shooting. On December 23, 2010, INDECOM submitted a partially complete file on its investigation to the Office of the Director of Public Prosecutions (hereinafter “DPP”), concluding that there was enough information to suggest a strong prima facie case against S.R.. INDECOM submitted additional files to the DPP on February 1, 2011, and February 8, 2011, recommending that S.R. be charged for murder. On February 25, INDECOM laid criminal charges against S.R. before the Savanna-la-mar Magistrate's Court. Sergeant R. was released on bail and was ordered to return to the court on M. lst7. The DPP responded with hostility to this, and soon after INDECOM laid the charges, its director indicated that the DPP would announce its own ruling on the case. A battle of jurisdiction followed, and on M. 15, the DPP issued a ruling that S.R. should be charged with murder and on M. 16, 2011, INDECOM Commissioner Terrence Williams said his office would provide full support to DPP in the case. The DPP Director completed the ruling on M. 16, 20118. S. indicated that no preliminary inquiry was necessary, and that the case would be placed on the Supreme Court docket "as soon as the file is completed by the investigators." On J. 29, 2011, a DPP official appeared before a judge, but did not produce the paperwork necessary to set a trial date. On October 28, 2011, the case was again postponed because the DPP was not present when the J. called the case four hours earlier than it was scheduled. In both J.a.M. 2012, the case was again postponed, and because there were still outstanding documents to be served on the defense, a trial date was yet to be set, while S.R. remained out on bail, and on active duty. At the time of presenting this petition, in J.2., the case was still at the Plea and Case Management stage and the case had been postponed ten times. The wife of the alleged victim was informed that according to INDECOM, if both the defense and the prosecution have their cases in order, trial date should be set by the court. The petitioners indicate that as of 2016, no less than eighteen court hearings have been held in the three years since the petitioner was filed, but neither the prosecution nor the defense have completed the disclosure of evidence and no trial date has been set.

  4. The petitioners claim that the S. failed to conduct a thorough, prompt, and impartial investigation into the circumstances of Mickey H.'s killing; it also failed in its duty to diligently and impartially prosecute S.R., further denying the petitioners access to an effective remedy9. T. claim that the JCF failed to exercise due control over the scene of the crime –crime in which they were themselves involved –, rendered evident from the fact that a gun was allegedly discovered, whilst not corroborated by a single witness not associated with the JCF. The alleged victim’s body was removed in a way that made it impossible for forensic test to be conducted, and resulted in traces of gunpowder residue being detected on his hands, even though all witness statements indicate that M.H. was not holding a firearm. The firearm used by Corporal R. was not returned for over four hours, in deviation from JCF policy, and statements from the members of the JFC were not obtained until nearly three weeks after the shooting....

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