Inter-American Commission on Human Rights
The Implications of Sentencing Aliens without Consular
Notification
Case 11.753: Ramón Martínez Villareal
On October 10, 2002, the Inter-American Commission on Human Rights (Commission) issued Report No. 52/02 on the merits of Case 11.753 regarding Ramón Martínez Villareal. This report is the culmination of an investigation initiated on May 16, 1997 against the United States concerning the murder conviction of Ramón Martínez Villareal, a Mexican national. Mr. Martínez Villareal was convicted of two counts of first degree murder on May 20, 1983, and has since been incarcerated and placed on death row in Arizona. The petitioner, the Center for Justice and International Law, alleged five violations of Mr. Martínez Villareal’s rights: the failure of the United States to provide notice of consular assistance under Article 36(1)(b) of the Vienna Convention on Consular Relations (Vienna Convention) to which the United States is bound; the failure of the United States to provide and guarantee effective assistance of counsel to Mr. Martínez Villareal; the failure of the United States to take into account Mr. Martínez Villareal’s mental competence at the trial and sentencing phases of his criminal proceeding and its obligation not to execute Mr. Martínez Villareal due to his mental incompetence; the delay in Mr. Martínez Villareal’s execution; and the unequal application of the death penalty throughout the United States. The petitioner claimed that these violations of Mr. Martínez Villareal’s rights by the United States contravene Articles I (right to life, liberty, and personal security), II (right to equality before law), XVIII (right to a fair trial), and XXVI (right to due process of law) of the American Declaration of the Rights and Duties of Man (American Declaration).
Analysis
The Commission limited its analysis of the merits to the petitioner’s
first claim, based on its finding that the United States’ failure to comply
with Article 36(1)(b) of the Vienna Convention was a sufficient basis to find
violations of the rights to a fair trial and to due process of law under the
American Declaration. The Commission further noted it would apply a heightened
level of scrutiny, consistent with the restrictive approach previously taken
by the Commission and other international human rights authorities in considering
issues regarding the imposition of the death penalty.
In response to the government’s argument that the Vienna Convention does not vest any private rights in a criminal defendant, the Commission stated that, based on the current jurisprudence of the Inter-American Court of Human Rights, it does not have competence to adjudicate the United States’ responsibility for violations of the Vienna Convention per se. The Commission nonetheless maintained that Mr. Martínez Villareal’s right to information and consular assistance under Article 36 of the Vienna Convention constitutes a fundamental component of the due process protections to which he is entitled pursuant to Articles XVIII and XXVI of the American Declaration. Accordingly, the state’s failure to respect and ensure this obligation constituted serious violations of Mr. Martínez Villareal’s rights to a fair trial and due process. In arriving at this conclusion, the Commission considered current developments in international law in the decision of the International Court of Justice in the LaGrand case and the decision of the Inter-American Court of Human Rights in Advisory Opinion 16, which asserted that Article 36 of the Vienna Convention creates individual rights that give rise to the international responsibility of a state.
At no point did the United States ever allege that Article 36(1)(b) had been satisfied. Rather, it claimed that the Mexican Consulate should have been on notice because of the media attention attracted by Mr. Martínez Villareal’s arrest. The Commission not only found this defense to be insufficient, but stated that the possible knowledge of the Mexican consular staff did not address Mr. Martínez Villareal’s right to be informed of his right to consular assistance.
In evaluating the importance of the state’s compliance with Article 36 of the Vienna Convention, the Commission noted that granting consular assistance to a criminal defendant helps ensure the protection of the defendant’s due process rights through the provision of services, including translation, the collection of mitigating evidence from the defendant’s country, and the preparation of an adequate defense. In this case, the Commission considered that the record showed that Mr. Martínez Villareal was arrested and tried without having a clear understanding of the proceedings. Mr. Martínez Villareal did not speak English, his attorney did not speak Spanish, and the earlier stages of the proceedings were not translated into Spanish. The record also reflected that Mr. Martínez Villareal did not understand the purpose or composition of the jury. There was further evidence that Mr. Martínez Villareal suffered from mental deficiency at the time of the trial against him, and that this mental deficiency was not adequately explored by his attorney. Based on these findings, the Commission held that the United States’ failure to comply with the Vienna Convention placed it in violation of Articles XVIII and XXVI of the American Declaration. The Commission further concluded that if the United States executes Mr. Martínez Villareal, it will be violation of Article I of the American Declaration.
Recommendations
In light of the Commission’s finding regarding the violation of Mr. Martínez
Villareal’s rights to due process and a fair trial, it urged the United
States to retry the case in accordance with the protections prescribed by Articles
XVIII and XXVI of the American Declaration. If a retrial in compliance with
these protections is not possible, the Commission recommended Mr. Martínez
Villareal’s release. The Commission further advised the United States
to review its laws and procedures relating to foreign nationals who are arrested
and incarcerated to assure that consular notification is integrated into the
earliest stages of criminal proceedings. The Commission announced that it would
continue to evaluate the measures adopted by the United States with respect
to the above recommendations until it reaches full compliance.
Establishing an International Ban on the Execution of Juveniles
Case 12.285: Michael Domingues
On October 22, 2002, the Commission issued Report No. 62/02 on the admissibility and the merits of case 12.285 regarding Michael Domingues. Mr. Domingues was convicted of two counts of first-degree murder and sentenced to death for crimes he committed when he was 16 years old. On May 1, 2000, the Commission received a petition from the Magnus Hirschfield Center for Human Rights and Mark Blaskey of the Clark County Public Defender on behalf of Mr. Domingues. The petition alleged that by sentencing Mr. Domingues to death for crimes he committed while he was a juvenile, the United States breached Articles I (right to life), II (right to equality before the law), VII (right to protection for mothers and children), and XXVI (right to due process of law) of the American Declaration. The petitioner alleged that the United States violated Article I of the American Declaration by breaching the jus cogens norm prohibiting the execution of juveniles. The petitioner further argued that the use of the death penalty in a limited number of U.S. states resulted in arbitrary deprivation of life and inequality before the law in the United States.
Analysis
After ruling that the case was admissible based on evidence that Mr. Domingues
had been denied a substantive appeal of his “illegal sentence” and
had therefore exhausted all domestic remedies, the Commission considered the
merits of the claim, focusing first on the allegation that the United States
violated a jus cogens norm. The Commission indicated that it would
apply a heightened level of scrutiny reserved for capital cases. The Commission
began its analysis with its 1987 decision, Roach and Pinkerton v. United
States, in which it determined whether a jus cogens norm that
prohibits the execution of juveniles existed. The Commission held in Roach
and Pinkerton that, although there was a recognized jus cogens norm
among member states of the Organization of American States (OAS) that prohibits
the execution of children, there was no consensus as to the age of majority.
Based on the precedent set by that decision, the Commission defined the question
before it as being whether, since 1987, the international community had established
18 as the age of majority.
In determining whether a jus cogens norm had developed for the age of majority since its 1987 decision in Roach and Pinkerton, the Commission considered the development of international treaty law, United Nations resolutions and standards, domestic practices within individual states, and practices within the United States. The Commission noted numerous developments that it considered indicative of an international consensus on 18 as the age of majority. In reaching its conclusion, the Commission relied on the fact that 191 states are currently parties to the UN Convention on the Rights of the Child, which provides that no person under the age of 18 shall receive the death penalty; that 64 countries have acceded to or ratified the International Covenant on Civil and Political Rights, which provides that death sentences shall not be imposed on individuals below the age of 18; that 5 member states of the OAS have ratified or acceded to the American Convention on Human Rights, which prohibits the execution of persons below the age of 18; that 49 countries have abolished the death penalty since 1986 (making the total of nations that do prohibit the death penalty 111), and that 20 additional countries that have not carried out an execution in 10 or more years; and that 16 states in the United States have expressly chosen the age of 18 as the minimum age for eligibility for the death sentence. In considering this and other evidence, the Commission established that a jus cogens norm had developed that prohibits the execution of people under 18. The Commission found that the United States violated this norm in the Domingues case and breached Article I of the American Declaration.
Recommendations
Based on these findings the Commission recommended that the United States offer
Mr. Domingues a commutation of sentence. The Commission further recommended
that the United States review its laws and procedures to ensure that the death
penalty is not imposed on anyone who was under the age of 18 at the time of
his or her crime. The Commission announced that it would continue to evaluate
the measures adopted by the United States with respect to the above recommendations
until the United States reaches full compliance. c
*David Baluarte is a J.D. candidate at the Washington College of Law and an articles editor for the Human Rights Brief. Ariel Dulitzky, a principal human rights specialist of the Inter-American Commssion on Human Rights, provided research support.
The proper citation for this article in the Human Rights Brief Volume 10, Issue 3, beginning at page 39 is: 10 No. 3 Hum. Rts. Brief 39 (2003).
