Report No. 366 (2020) IACHR. Petition No. 2234-13 (Jamaica)

Year2020
Case TypeAdmissibility
Respondent StateJamaica
CourtInter-American Comission of Human Rights
Report No. 366/20
















REPORT No. 366/20

PETITION 2234-13

REPORT ON ADMISSIBILITY


PAUL WALLACE AND FAMILY

JAMAICA


OEA/Ser.L/V/II.

D.. 384

12 December 2020

Original: English



























Approved electronically by the Commission on December 12, 2020.






Cite as: IACHR, Report No. 366/20, Petition 2234-13. A.. P.W. and family. Jamaica. December 12, 2020.





www.iachr.org


I. INFORMATION ABOUT THE PETITION

Petitioner:

International Human Rights Center - Loyola Law School (IHRC) and Jamaicans for Justice (JFJ)

:

Paul Wallace and family

Respondent S.:

Jamaica1

Rights invoked:

Articles 4 (right to life), 5 (humane treatment), 8 (fair trial), 25 (judicial protection), of the American Convention on Human Rights2, all in relation to articles 1.1 (obligation to respect rights), and 2 (domestic legal effect) of the same instrument

II. PROCEEDINGS BEFORE THE IACHR3

Filing of the petition:

J. 21, 2013

N. of the petition to the S.:

December 7, 2018

S.’s first response:

April 8, 2019

Additional observations from the petitioner:

April 18 and November 12, 2019, November 20, 2020

Additional observations from the S.:

August 5, 2020

III. COMPETENCE

Competence Ratione personae:

Y.

Competence Ratione loci:

Y.

Competence Ratione temporis:

Y.

Competence Ratione materiae:

Y., American Convention (ratification of the American Convention 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 (life), 5 (humane treatment), 8 (fair trial), and 25 (judicial protection) of the American Convention in relation to articles 1 (obligation to respect rights) and 2 (domestic legal effects) of the same instrument

E. of domestic remedies or applicability of an exception to the rule:

Exception set forth in Article 46.2 (c) of the Convention applies

Timeliness of the petition:

Y., in terms of Section VI





V. ALLEGED FACTS

  1. The petitioners denounce that P.P.W. (“the alleged victim”) was shot and killed without justification by members of the Jamaican police on September 19, 2009 in Auldyard, W.. The petitioners also argue the failure of the S. to carry out a proper, timely and diligent investigation into the killing of the alleged victim; to prosecute those responsible; and to provide adequate reparations to his family. They further allege that crime falls within a well-documented pattern of hundreds of fatal shootings carried out by security forces each year, which the S. rarely, if ever, adequately investigates or punishes due to structural defects in the criminal investigation of these crimes, resulting in virtually absolute impunity. 4


  1. Community members mentioned that the alleged victim had run out of cooking gas, so he went to a nearby piece of land to collect firewood for his stove when he was shot. The petitioners indicate that the officer who shoot the alleged victim was assigned to the Savanna-la-Mar Police Station; and that he was the son-in-law of the owner of the property where the alleged victim was shot. According to one account, the owner of the property approached the alleged victim from behind, called out to him and then shot him. The community members also attested that it was a common practice in the area to enter such land without protest from the owner. The petitioners indicate that while there are no eyewitness accounts of the execution, residents heard the gunshot that killed the alleged victim early in the morning. One of the neighbors heard someone who screamed “murder, J., J., J., followed by three more gunshots. When the neighbor went to investigate what had happened, he found the alleged victim’s body in the bushes; he was taken to a hospital where he was pronounced dead. The petitioners submit that the alleged victim was ordained as minister in 2004 and was a beloved member of the community5; and that his killing had a profound emotional impact on both his family and the community. The alleged victim spoke openly about violence in the community and contributed to an article documenting violence against Jamaican clergy members that was published posthumously in the Jamaican Gleaner newspaper.

  2. W. regard to the investigation, the petitioners assert that the S. failed to conduct a proper and diligent investigation. The first stage of the inquiry was handed over to the Bureau of Special Investigations (BSI). At the time, the head of the BSI told news agencies that the police officer implicated in the fatal shooting had been relieved of his weapon, and that the weapon had been sent to the forensic lab for testing. In December 2009, after completing the investigation, the BSI referred the file to the Office of the Director of Public Prosecution (DPP). Over more than ten years since the murder of the alleged victim, the petitioners and his family members have requested on several occasions information regarding the case, but received no response. They submit that the investigation has been languishing since then at the office of the DPP, which has not made a ruling to determine whether the case will be prosecuted. The petitioners argue that the failure of the S. to investigate, prosecute and punish these crimes is the result of a judicial system that operates together to shield police from accountability, leading to a miscarriage of justice.

  3. For its part, the S. contends that the petition is inadmissible because domestic remedies have not been exhausted in accordance with Article 46(1)(a) of the American Convention and that the petitioners have not established prima facie violations of that treaty. The S. specifically alleges that the petitioners have not exhausted civil proceedings in Jamaica in the form of constitutional relief, which provides the possibility of compensation for any harm caused by alleged human rights violations, including violations the right to life and the right not to be subjected to cruel and inhumane treatment. The S. invites the Commission to depart from its previously held position that civil remedies are inadequate or ineffective for alleged breaches of non-derogable rights6 and submits that the petitioners must pursue them regardless of the criminal proceedings. The S. contends that civil remedies adequately address alleged human rights violations as they allow for the facts to be ventilated by assessing the S.’s responsibility for human rights violations; and that they may provide for compensation, including for exemplary damages, which is an adequate form of relief. Jamaica further argues that by the very nature of the criminal process, the responsibility of the S. cannot be properly established since, in fact, the purpose is to hold individuals responsible for offenses. In addition, they cannot provide or facilitate the delivery of compensation. The S. further holds that civil proceedings are effective as they adhere to the principles of due process, including safeguards for judicial independence and impartiality. A., it considers that no exception set forth in the American Convention applies to this case, because domestic remedies are still available and accessible to the petitioners, including those aimed at ensuring due process in the investigations and judicial proceedings.

  4. F., the S. contends that the allegation regarding the failure to adequately investigate and prosecute this matter is manifestly groundless. Jamaica holds that any such claim cannot be examined unless local remedies have been exhausted, which the petitioners have failed to do. T.S. considers that the petitioners’ argument regarding the inadequacy of constitutional relief is incorrect, since this remedy provides the ability to receive an appropriate form of relief for an established human rights violation which includes, but is not limited to, compensation. T.S. underscores that constitutional relief may offer as a form of reparation, the possibility of ordering S. agents to fulfil the duty to investigate, where there is any breach; and that it offers the prospect of the Constitutional Court issuing a judicial declaration on the S.’s responsibility for human rights violations, which is itself a form of relief recognized by the Commission. H., the S. alleges that the petitioners must apply to the Supreme Court for constitutional relief to allow for judicial review of compliance with the duty to investigate.

VI. ANALYSIS OF EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION

  1. The petitioners allege that the S. failed to carry out a proper, timely and diligent investigation and prosecution into the crime, which left it in impunity; and that it failed to provide adequate reparations to the family of the alleged victim. They also argue that the exception to the rule of exhaustion of domestic remedies set forth in Article 46(2)(c) is applicable to this matter; and that...

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