7
Court would still address the issues of mandatory death sentencing and judicial hanging in
this case because of the important public interest involved and the fundamental human
right at stake, namely, the right to life.
23.
For all of the above reasons, the Court considers that the issues of mandatory death
sentencing and judicial hangings are not moot.
IV
PRELIMINARY OBJECTION
Non-Exhaustion of Domestic Remedies
24.
In its answer to the application the State objected to the admissibility of the case
because domestic remedies have allegedly not been exhausted, as required by Articles
46(1)(a) and 47(a) of the American Convention and Articles 27 and 31 of the Rules of
Procedure of the Inter-American Commission. In particular, the State argued that domestic
remedies had not been exhausted as to the alleged conditions of detention, the alleged
cruelty of hanging as a form of execution, and the alleged cruelty involved in reading
warrants of execution to the alleged victims while their appeals were pending.
25.
The Court has already developed clear guidelines for the analysis of an objection
regarding an alleged failure of exhaustion of domestic remedies.18 Firstly, the objection has
been understood by the Court to be a defense available to States, and, as such, that it may
be expressly or tacitly waived. Secondly, in order for the objection of failure to exhaust
domestic remedies to be timely, it must be pled in the State’s first submission before the
Commission; otherwise, it is presumed that the State has tacitly waived this argument.
Thirdly, the Court has asserted that a State lodging this objection must specify the domestic
remedies that remain to be exhausted and demonstrate that these remedies are applicable
and effective.
26.
The Court observes that, in their petition before the Commission, the representatives
raised all three issues (conditions of detention, hanging, and reading of warrants of
execution) in relation to all four victims. Nevertheless, the State did not raise any argument
in its first submission before the Commission regarding the exhaustion of domestic remedies
with respect to two of the four alleged victims, namely, Messrs. Boyce and Joseph. Thus,
the State has implicitly waived its right to resort to such a defense with regards to these
two alleged victims.
27.
However, the State indicated in its first submission during the proceedings before the
Commission that “there has not been an exhaustion of local remedies in respect of Michael
Huggins and Frederick Atkins as there has been no order transmitted from the Judicial
Committee of the Privy Council relating to their domestic appeals”. In its final written
arguments before the Court, the State admitted that “the above statement was incorrect
since the order it refers to had already been transmitted by the Judicial Committee of the
Privy Council to another branch of the Government [and therefore] the domestic process[es
related to the appeals of Mr. Huggins and Mr. Atkins] had already been completed”.
Nevertheless, with regard to their alleged conditions of detention, cruelty of hanging as a
form of execution, and the reading of the warrants of execution, the State still maintained
that it raised the issue of lack of exhaustion of domestic remedies at the appropriate
procedural opportunity.
18
Cf. Case of Velásquez Rodríguez V. Honduras. Preliminary Objections. Judgment of June 26, 1987. Series
C No. 1, para. 88; Case of Nogueira de Carvalho et al V. Brazil. Preliminary Objections and Merits. Judgment of
November 28, 2006. Series C No. 161, para. 51, and Case of Almonacid Arellano et al. V. Chile. Preliminary
Objections, Merits, Reparations and Costs. Judgment of September 26, 2006. Series C No. 154, para. 64.
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