Report No. 283 (2020) IACHR. Petition No. 1078- 14 (Jamaica)

• Year: 2020
• Case Type: Admissibility
• Respondent State: Jamaica
• Court: Inter-American Comission of Human Rights

REPORT No. 283/20

PETITION 1078- 14

REPORT ON ADMISSIBILITY

WINSTON MALCOLM, S.A.W.M., JUNIOR AND FAMILY

JAMAICA

OEA/Ser.L/V/II.

D.. 300

12 October 2020

Original: English

Approved electronically by the Commission on October 12, 2020.

Cite as: IACHR, R. No. 283/20, Petition 1078-14. A.. W.M., S. and W.M., J. and family. Jamaica. October 12, 2020.

www.iachr.org

I. INFORMATION ABOUT THE PETITION

Petitioner:	International Human Rights Clinic of the L.L.S. and Jamaicans for Justice
:	Winston Malcom, S., W.M., J. and family
Respondent S.:	Jamaica1
Rights invoked:	Articles 4 (right to life), 5 (humane treatment), 8 (fair trial), and 25 (judicial protection) of the American Convention on Human Rights in relation to its Articles 1(1) and 2.

II. PROCEEDINGS BEFORE THE IACHR2

Filing of the petition:	J. 29, 2014
Additional information received at the stage of initial review:	August 14, 2018, A. 15, 2019
N. of the petition to the S.:	June 3, 2019
S.’s first response:	December 5, 2019
Additional observations from the petitioner:	May 5, 2020, J. 1, 2020
Additional observations from the S.:	August 26, 2020

III. COMPETENCE

Competence Ratione personae:	Yes
Competence Ratione loci:	Yes
Competence Ratione temporis:	Yes
Competence Ratione materiae:	Yes, American Convention (deposit of instrument of ratification made on August 7, 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 (right to life), 5 (humane treatment), 8 (fair trial), and 25 (judicial protection) of the American Convention in relation to its Articles 1(1) and 2
Exhaustion of domestic remedies or applicability of an exception to the rule:	Yes; under the terms of section VI
Timeliness of the petition:	Yes; under the terms of section VI

V. ALLEGED FACTS

1. This petition claims that W.M., S. and his son Winston Malcolm, J.3 were, without lawful justification, fatally shot by police officers at their home on December 21, 2007; and that the S. has failed to hold these police officers account for this unlawful action. 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 killings.4

1. According to the petitioners, the alleged victims lived in a house that was part of a family compound located in St. C., Jamaica. In this regard, the petitioners affirm that there were several dwelling houses on this compound (mainly occupied by relatives of the alleged victims). On the morning of December 21, 2007, the petitioners allege that members of the Jamaica Constabulary Force (JCF), accompanied by military personnel, executed a search warrant, conducting a raid on the compound, which included the house occupied by the alleged victims. According to the petitioners, four police entered and began to search the compound for guns and valuables, and asking questions about names, date of birth, and occupation of each person present. According to the petition, the police claimed that the alleged victims were suspected of being members of a criminal gang, who were concealing firearms, amidst a gang feud in the area.

2. D. the raid, the petitioners claim that the police officers questioned M.S. before proceeding to kick in the door to M.J..’s room. According to the petitioners M.J.’s girlfriend and another acquaintance were in the room at this time. The petitioners allege that the police sent the girlfriend and acquaintance out of the room and subsequently began to punch Malcolm Jr. in the chest. According to the petitioners, M.S. called out from his room about police brutality but the police continued to punch M.J.. M.S. continued to protest until the police brought him outside of the house to join other family members. S., thereafter, the petitioners claim that the police then took M.S. back inside his house.

3. The petitioners allege that subsequently, with both M.J. and M.S. inside the house, witnesses heard multiple shots fired. According to the petitioners, witnesses observed soldiers and police officers dragging the bodies of the alleged victims from inside the house, across the ground of the compound before throwing their bodies into a jeep, which then drove away. The petitioners contend that police officers' recollection of events strongly contradicts the version documented by civilian eyewitnesses. In particular, two officers, Corporal M.R. and Constable Omar Simmons claimed that they knocked on the front door of the residence; no one answered so they pushed open the door; as they did, both heard a gunshot, became "fearful for their lives," and immediately returned fire.

4. The petitioners claim that an investigation was initiated by the Bureau of Special Investigations5 (BSI), but that there were gross deficiencies and delays in this investigation. The petitioners identify some of these deficiencies as follows: (a) the guns and bodies were removed from the scene before investigators even arrived; (b) witness statements were not completely gathered until 3 or 4 months after the actual incident; (c) forensic evidence was not in the custody of the forensic division until 3 weeks after the crime and tests were not completed until 6 months later; (d) ballistic evidence was not placed in the custody of the ballistics expert until three weeks after the fatal shootings of the alleged victims; (e) failure to conduct fingerprint analysis on the relevant guns. The petitioners also claim that while the ballistic and forensic reports show the date of receipt, there is no record of the chain of custody between the crime scene and each respective laboratory. With respect to the post mortem examinations on the alleged victims, the petitioners contend that the injuries are not consistent with police accounts (of returning fire randomly after being shot at). With respect to M.J., his body showed evidence of bullet wounds to the throat and chin, upper right chest, left abdomen, right hip, and twice in the left arm; and multiple contusions to abdomen tissues. With respect to Malcolm Sr., his body had an entry wound in the center of his forehead, depression in the back of the skull, and another entry wound in the front abdomen. The petitioners also allege that (a) the post-mortem examinations were not conducted until 20 days after the deaths of the alleged victims; and (b) that sections of both post mortem examination reports are missing.6

5. The petitioners also complain of long delays in the judicial processes that ensued following the deaths of the alleged victims. According to the petitioners, the BSI referred their investigation to the Director of Public Prosecutions (DPP) in 2008, for a ruling. The DPP subsequently referred the case to the Coroner’s Court in 2009. D. follow up by the petitioners, Coroner’s Court did not initiate any preliminary consideration of the case until September 29, 2011. On this occasion, the Coroner’s Court referred the matter to the S.C.’s Court.7 The case was initially scheduled for hearing by the S.C. on January 25, 2012, and then rescheduled A. 3, 2012. H., no hearing took place on A. 3, 2012; and since then, according to the petitioners, up to the filing of their petition, the Special Coroner had not initiated or completed the hearing.

6. The petitioners complain that the fatal shooting of the alleged victims, together with delays and deficiencies in the investigation and judicial processes part of a widespread pattern of unlawful killings and impunity that has been documented by various international governmental and non-governmental actors, as well as the government of Jamaica itself. The petitioners contend that it is a well-documented fact that the Jamaican justice system is replete with numerous failings, particularly in cases of excessive force and extrajudicial killings by police officers; and that most notably, these include “lack of effective, prompt, and thorough investigations”.

7. The petitioners entirely reject the S.’s arguments. The petitioners emphasize that (a) civil remedies are not adequate or effective remedies for a case of extra-judicial killing (and therefore do not need to be exhausted); (b) criminal proceedings represent the appropriate and effective remedy where there has been an alleged violation of the right to life; and (c) there has been unwarranted delay in conducting criminal proceedings by the S. as it relates to the deaths of the alleged victims. On the issue of delay, the petitioners claim that they were not aware of the completion of inquest of the S.C. until they received the response of the S. to the petition before the Commission.

8. F., the petitioners state that (a) the inquest was completed almost eight years after the death of alleged victims; (b) the family of the alleged victim were unable to obtain a copy of the verdict of the S.C.’s Court until M. 2020 – almost five years after the completion of the inquest. The petitioners also contend that warrants for the arrest of the police officers were not issued until J. 11, 2019, four years after the end of the inquest by the S.C. and over 11 years after the incident. The petitioners argue that the subsequent run away of the police...