Report No. 290 (2020) IACHR. Petition No. 1077-14 (Jamaica)

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

REPORT No. 290/20

PETITION 1077-14

REPORT ON ADMISSIBILITY

PAUL RICHARD BROWN AND FAMILY

JAMAICA

OEA/Ser.L/V/II.

D.. 307

12 October 2020

Original: English

Approved electronically by the Commission electronically on October 12, 2020.

Cite as: IACHR, R. No. 290/20, Petition 1077-14. A.. Paul Richard Brown and family. Jamaica. October 12, 2020.

www.iachr.org

I. INFORMATION ABOUT THE PETITION

Petitioner:	International Human Rights Clinic of the L.L.S.
:	Paul Richard Brown and family1
Respondent S.:	Jamaica2
Rights invoked:	Articles 4 (life), 5 (humane treatment), 8 (fair trial) and 25 (judicial protection) of the American Convention on Human Rights3, in relation with its Articles 1.1 (obligation to respect rights) and 2 (domestic legal effects)

II. PROCEEDINGS BEFORE THE IACHR4

Filing of the petition:	J. 29, 2014
Additional information received at the stage of initial review:	A. 15, 2019
N. of the petition to the S.:	J. 3, 2019
S.’s first response:	September 27, 2019
Additional observations from the petitioner:	A. 30, 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., exceptions set forth in Article 46.2(a) and (c) apply
Timeliness of the petition:	Y., in terms of Section VI

V. ALLEGED FACTS

1. The petitioners denounce the extrajudicial execution of the alleged victim, P.R.B., by a member of the Jamaica Constabulary Forces (hereinafter JCF) on January 5, 2009, and the failure of the S. to carry out proper, timely and diligent investigation and prosecution. T. condemn a widespread pattern of extrajudicial executions by security forces members in Jamaica and structural defects in the criminal investigation of these incidents, resulting in a virtually absolute impunity for these killings.5

2. The petitioners claim that the JCF is one of Jamaica’s security forces, and allegedly amongst the deadliest in the world per capita.6 T. submit that while the alleged victim was driving his commercial bus, with passengers, an off duty member of the JCF pulled up beside him in a white Mazda car, got out of it, came up to the alleged victim’s door and shot him in his head. The conductor of the bus7, who accompanied the alleged victim at the time explained that he noticed a white car with tinted window on their left at an earlier light stop, and saw it again when they stopped to pick up a passenger. The car followed them and when the bus had to do another stop, it came around its right side and blocked the bus from moving forward. The conductor then saw the car driver, later identified as O.O.M., get out of his vehicle and come towards the bus with a gun in his hand. W. saying a word, he then shot the alleged victim and drove off. The conductor took the alleged victim to Kingston Public Hospital, where he was pronounced dead on arrival. The petitioners indicate that the police version of the events contradicts this version of events. According to the police, Mr. Brown's bus would have collided with Officer M.'s white car in the left rear and then failed to stop. O.M. would have tried to stop the bus, but was unable to do so until the bus eventually stopped to let a passenger off. Once O.M. blocked the bus with his car, he and Mr. Brown would have gotten into an argument before Officer M. shot Mr. Brown in the head.

3. The petitioners indicate that S.B., from the Hunts Bay Police, initiated an investigation on the day of the killing. O.M. handed him his .38 service revolver, in addition to five rounds of .38 cartridges and one spent .38 casing, and they were put into envelopes and marked as exhibits. The petitioners submit that there is no indication that he handled this evidence properly. B. then interviewed the bus conductor as well as the owner of the bus, and observed that the right front side of the bus was damaged, with white paint on it. The Scenes of Crime unit processed the various pieces of evidence, swabbed M.’s hands and photographed his car. The bus was taken to the Hunts Bay Police Station. The investigation and evaluation of the evidence continued in collaboration with the JCF’s Bureau of Special Investigation (BSI) – a clear conflict of interests according to the petitioners, since the officer targeted by the investigation is himself a member of the JCF. The same day, the Assistant Commissioner of Police in command at BSI issued a report concluding that Mr. Brown's bus collided with the white car in the left rear and failed to stop. On January 6, 2009, the office of the Director of Public Prosecutions advised that the officer be charged with murder. Officer M. was arrested the next day. A preliminary inquiry hearing took place starting on October 7, 2009, where the wife of the alleged victim and the conductor testified. H., the petitioners indicate that before the cross-examination could take place, the conductor disappeared, fearing for his life.8 The matter was transferred to the Supreme Court for a trial scheduled to begin on May 7, 2010, but the date was subsequently postponed on multiple occasions (to J. 11, 2010; J.2., 2010; February 25, 2011; and December 9, 2011). On J.6., 20199, officer M. was sentenced to three years of imprisonment, after having pleaded guilty to manslaughter.

4. The petitioners submit that the extrajudicial execution of the alleged victim is attributable to the S.. T. submit M. acted under color authority when he shot the alleged victim with a government-issued service weapon, in addition to the government having a specific obligation to prevent improper use of service weapon. M., the S. has a general obligation to protect the rights to life and physical integrity, reinforced in the context of the widespread occurrence of extrajudicial killing of civilians by Jamaican police forces, where the S. knew or ought to have known of it and should have taken steps to prevent it. A., the petitioners submit that despite the conviction, the S. still failed to properly prosecute and punish the crime. T. argue that the judicial system has been unable to deliver justice and provide the victims with effective remedies, and that the investigation, prosecution and punishment of Officer M. in this case is patently inadequate, falling well below international standards. The murder of the alleged victim took place in 2009, and only in 2019 was the responsible sanctioned – an unjustified ten years period, during which the S. failed to provide any meaningful updates to the family and the petitioners. In addition, they submit that a three years sentence is a gross violation of the principle of proportionality between crime and punishment. The petitioners are shocked that the S. justifies the acceptance of Officer M.’s guilty plea to manslaughter because there was “enough evidence to raise the issue of provocation” – a simple traffic altercation – which cannot justify the killing of a human being. Jamaica has an obligation to deter extra-judicial killings and not justify them. F., they submit that the exception to the rule of exhaustion of domestic remedies set forth in Article 46.2(c) of the Convention applies since there has been an unwarranted delay in rendering a final judgement

5. In addition, they claim that neither the civil suit nor the constitutional action are effective remedies that need to be exhausted. The petitioners indicate that the alleged victim’s relatives do not have the means to pay for an attorney’s services in civil proceedings, and that there is no indication that the S. would have been available to provide them free representation. These remedies are thus inaccessible to them. T. also submit that, contrary to what is alleged by the S., civil remedies are not adequate remedies for a case of extra-judicial killing10, and that while monetary compensation awarded to victims as a result of a civil suit is one of the possible remedies, it is not a sufficient one11. It comes only after the S. has fulfilled its basic obligation to investigate and prosecute12.

6. For its part, the S. contends that Jamaica cannot be held responsible for unlawfully depriving P.R.B. of his life, as it is insufficient, as a matter of law, that M. was a member of the JCF, since he was off duty at the time of the event, as recognized by the petitioners. N., in both versions of the events outlined in the petition, M. did not identify himself nor was he identified by anyone as a police officer at the time of the alleged events. The S. further submits that the petition is inadmissible because the domestic remedies were not exhausted, the unwarranted delay exception is inapplicable in the present petition and the S. fulfilled its duty to investigate, prosecute and punish.

7. The S. submits that the civil proceedings have not been exhausted in Jamaica in the form...