The Inter-american Regional System
3
mandatory death sentences following a conviction for murder are in violation
of Article 5, holding that that provision’s guarantees “presuppose that persons
protected under the Convention will be regarded and treated as individual human
beings, particularly in circumstances in which a State Party proposes to limit or
restrict the most basic rights and freedoms of an individual.”513 The mandatory
imposition of the death penalty based on the category of crime and not the
individual’s personal circumstances or the circumstances of a particular case
therefore amounted to inhuman or degrading treatment.
In Hilaire and Others v Trinidad and Tobago, the Inter-American Court, referring to the decision of its European counterpart in Soering v UK, found that
the mental anguish suffered by death row prisoners awaiting execution, which
could be carried out without notice, constituted cruel, inhuman and degrading treatment.514 This followed expert testimony that “the procedures leading
up to the death by hanging of those convicted of murder terrorize and depress the
prisoners; others cannot sleep due to nightmares, much less eat.”515
3.3.2.2 Corporal punishment
In Loayza Tamayo v Peru, the Court, once again citing the jurisprudence of the
European Court, held that “Any use of force that is not strictly necessary to ensure
proper behavior on the part of the detainee constitutes an assault on the dignity of
the person… , in violation of Article 5.”516
In Caesar v Trinidad and Tobago, the Court, referring to the jurisprudence of
both the Human Rights Committee and the European Court, found that the
very nature of corporal punishment for crimes “reflects an institutionalization
of violence, which, although permitted by the law, ordered by the State’s judges
and carried out by its prison authorities, is a sanction incompatible with the Convention. As such, corporal punishment by flogging constitutes a form of torture.”517
In that case, the Court also found “severe aggravating circumstances,” including
“the extreme humiliation caused by the flogging itself; the anguish, stress and fear
experienced while awaiting the punishment in prison, a period that was marked
IACommHR, Baptiste v Grenada, Case 11743, Report No. 38/00, 13 April 2000, §89. See also
IACommHR, Aitken v Jamaica, Case 12275, Report No. 58/02, 21 October 2002, §111; IACommHR, Knights v Grenada, Case 12028, Report No. 47/01, 4 April 2001, §81.
514
Hilaire and Others v Trinidad and Tobago (2002), op. cit., §§167–169. The Court found that the
legislation permitting this system was incompatible with the ACHR.
515
Ibid. §168.
516
Loayza Tamayo v Peru (1997), op. cit., §57.
517
Caesar v Trinidad and Tobago, IACHR (Series C) No. 123, judgement of 11 March 2005, §73.
513
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