text:
89. Among the fundamental principles upon which the American Convention is grounded is the recognition that the rights and freedoms protected thereunder are derived from the attributes of their human personality. From this principle flows the basic requirement underlying the Convention as a whole, and Article 5 in particular, that individuals be treated with dignity and respect. Accordingly, Article 5(1) guarantees to each person the right to have his or her physical, mental, and moral integrity respected, and Article 5(2) requires all persons deprived of their liberty to be treated with respect for the inherent dignity of the human person. These 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, such as the right to liberty. In the Commission’s view, consideration of respect for the inherent dignity and value of individuals is especially crucial in determining whether a person should be deprived of his or her life.
90. The mandatory imposition of the death sentence, however, has both the intention and the effect of depriving a person of their right to life based solely upon the category of crime for which an offender is found guilty, without regard for the offender’s personal circumstances or the circumstances of the particular offense. The Commission cannot reconcile the essential respect for the dignity of the individual that underlies Article 5(1) and (2) of the Convention, with a system that deprives an individual of the most fundamental of rights without considering whether this exceptional form of punishment is appropriate in the circumstances of the individual’s case.
91. Finally, the Commission considers that the imposition of mandatory death sentences cannot be reconciled with an offender’s right to due process, as contemplated in and as provided for in Articles 4 and 8 of the Convention. It is well established that proceedings leading to the imposition of capital punishment must conform to the highest standards of due process. The due process standards governing accusations of a criminal nature against an individual are prescribed in Articles 8(1) and 8(2) of the Convention, which include the right to a hearing before a competent, independent and impartial tribunal, the right of the accused to defend himself or herself, personally or by counsel, and the right to appeal the judgment to a higher court. In addition, as noted previously, Article 4 of the Convention provides that the death penalty should be imposed only for the most serious offenses, and contemplates that certain factors attributable to a particular offender or offense may bar the imposition of the death penalty altogether in the circumstances of a particular case.
92. In the Commission’s view, therefore, the due process guarantees under Article 8 of the Convention, when read in conjunction with the requirements of Article 4 of the Convention, presuppose as part of an individual’s defense to a capital charge an opportunity to make submissions and present evidence as to whether a death sentence may not be a permissible or appropriate punishment in the circumstances of his or her case. This may be on the basis, for example, that the crime for which they have been convicted should be considered a political or related common crime within the meaning of the Convention. The due process guarantees should also be interpreted to include a right of effective review or appeal from a determination that the death penalty is an appropriate sentence in a given case.
93. The mandatory imposition of the death sentence is inherently antithetical to these prerequisites. By its nature, it precludes any opportunity on the part of the offender to make, or for the Court to consider, representations or evidence as to whether the death penalty is a permissible or appropriate form of punishment, based upon the considerations in Article 4 of the Convention or otherwise. Also, as noted previously, it precludes any effective review by a higher court of a decision to sentence an individual to death.
94. Contrary to the current practice in Grenada, the Commission considers that imposing the death penalty in a manner which conforms with Articles 4, 5, and 8 of the Convention requires an effective mechanism by which a defendant may present representations and evidence to the sentencing court as to whether the death penalty is a permissible or an appropriate form of punishment in the circumstances of their case. In the Commission’s view, this includes, but is not limited to, representations and evidence as to whether any of the factors incorporated in Article 4 of the Convention may prohibit the imposition of the death penalty.
95. In this regard, as the following discussion of international and domestic jurisdictions will indicate, a principle of law has developed common to those democratic jurisdictions that have retained the death penalty, according to which the death penalty should only be implemented through “individualized” sentencing. Through this mechanism, the defendant is entitled to present submissions and evidence in respect of all potentially mitigating circumstances relating to himself and his or her offense, and the court imposing sentence is afforded discretion to consider these factors in determining whether the death penalty is a permissible or appropriate punishment.
97. In light of the foregoing analysis, the Commission considers that the imposition of a mandatory death sentence by the State for the crime of murder, is not consistent with the terms of Article 4(1), 5(1), 5(2), 8(1) and 8(2) of the Convention and the principles underlying those Articles.
98. The experience of other international human rights authorities, as well as the high courts of various common law jurisdictions that have, at least until recently, retained the death penalty, substantiates and reinforces an interpretation of Articles 4, 5, and 8 of the Convention that prohibits the mandatory imposition of the death sentence. In this connection, it is the Commission’s view, based upon a study of these various international and domestic jurisdictions, that a common precept has developed whereby the exercise of guided discretion by sentencing authorities to consider potentially mitigating circumstances of individual offenders and offenses is considered to be a condition sine qua non to the rational, humane and fair imposition of capital punishment. Mitigating circumstances requiring consideration have been determined to include, inter alia, the character and record of the offender, the subjective factors that might have influenced the offender’s conduct, the design and manner of execution of the particular offense, and the possibility of reform and social readaptation of the offender.
Considering that in this case use of firearms did not produce the death or wounding of any person and that the court could not under the law take these elements into account in imposing sentence, the Committee is of the view that the mandatory imposition of the death sentence under these circumstances violates article 6, paragraph 2 of the Covenant.
In Furman, members of the Court acknowledged what cannot be fairly denied – that death is a punishment different from all other sanctions in kind rather than degree. A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.
This Court has previously recognized that “[f]or the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender”. Consideration of both the offender and the offense in order to arrive at a just and appropriate sentence has been viewed as a progressive and humanizing development. While the prevailing practice of individualizing sentencing determinations generally reflects simply an enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment, requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.
This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100 year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.
Under our court system questions of guilt and innocence, and the proper sentence to be imposed on those found guilty of crimes, are not decided by juries. In capital cases, where it is likely that the death sentence may be imposed, judges sit with two assessors who have an equal vote with the judge on the issue of guilt and on any mitigating or aggravating factors relevant to sentence; but sentencing is the prerogative of the judge alone. The Criminal Procedure Act allows a full right of appeal of persons sentenced to death, including a right to dispute the sentence without having to establish an irregularity or misdirection on the part of the trial judge. The Appellate Division is empowered to set the sentence aside if it would not have imposed such a sentence itself, and it has laid down criteria for the exercise of this power by itself and other courts. If the person sentenced to death does not appeal, the Appellate Division is nevertheless required to review the case and to set aside the death sentence if it is of the opinion that it is not a proper sentence.
There seems to me to be little difference between the guided discretion required for the death sentence in the United States, and the criteria laid down by the Appellate Division for the imposition of the death sentence. The fact that the Appellate Division, a court of experienced judges, takes the final decision in all cases is, in my view, more likely to result in consistency of sentencing, than will be the case where sentencing is in the hands of jurors who are offered statutory guidance as to how that discretion should be exercised.
(a) the normal rule is that the offense of murder shall be punished with the sentence of life imprisonment. The Court can depart from that rule and impose the sentence of death only if there are special reasons for doing so. Such reasons must be recorded in writing before imposing the death sentence.
(b) while considering the question of sentence to be imposed for the offense of murder under section 302, Penal Code, the Court must have regard to every relevant circumstance relating to the crime as well as the criminal. If the Court finds, but not otherwise, that the offense is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the Court may impose the death sentence.
[a] real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That should not be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.
105. The experience in other international and domestic jurisdictions therefore suggests that a Court must have the discretion to take into account the individual circumstances of an individual offender and offense must be taken into account by a court in determining whether the death penalty can and should be imposed, if the sentencing is to be considered rational, humane and rendered in accordance with the requirements of due process. The individual circumstances to be considered have been determined to include the character and record of the offender, the subjective factors that might have influenced the offender’s conduct, the design and manner of execution of the particular offense, and the possibility of reform and social readaptation of the offender.
106. Authorities in these jurisdictions have also suggested that, in order to be exercised in a rational and non-arbitrary manner, the sentencing discretion should be guided by legislative or judicially-prescribed principles and standards, and should be subject to effective judicial review, all with a view to ensuring that the death penalty is imposed in only the most exceptional and appropriate circumstances. The Commission considers that these principles should also be considered in interpreting and applying Articles 4, 5 and 8 of the Convention, so as to require individualized sentencing in implementing the death penalty. To accept any lesser standard would, in the Commission’s view, fail to afford sufficient protection to the most fundamental of rights under the American Convention.
108. Consequently, the Commission concludes that once Mr. Baptiste was found guilty of the crime of murder, the law in Grenada did not permit a hearing by the courts as to whether the death penalty was a permissible or appropriate penalty for Mr. Baptiste. There was no opportunity for the trial judge or the jury to consider such factors as Mr. Baptiste's character or record, the nature or gravity of the offense, or the subjective factors that may have motivated Mr. Baptiste's conduct. Mr. Baptiste was likewise precluded from making representations on these matters. The Court sentenced Mr. Baptiste based solely upon the category of crime for which he had been found responsible.
My mother beat Deverill for a long time and did not stop. I went across by my mother. I hold on to the belt which she was beating my brother with. I release my brother and I send him outside in the yard. I take the belt from my mother because the belt belong to my girlfriend Bernadette and I went back in the house together with the belt where I live.
About ten past twelve my mother leave her house and she was coming to me. She had on a yellow hat on her head. She did not had anything in her hand. I did not had anything in my hand either. When she reach in front of me she slapped my face … When she reach in front of me she say “today! Today! I must kill you” and she slapped me in my face. I pull down the lace from the line. I open the cabouya in it. I try to pass it over my mother head and then pass it over her shoulder to tie her both hands. Whilst doing so, my mother jerked away then the lace draw in her neck. She fell to the ground. I let out the lace the same time. I rush for a cutlass and I cut off the lace from my mother neck. . . I did not want to do anything to my mother more than to tie her hands because she hit me in my face. I only wanted to prevent her from hitting me again or do anything to me.
111. Mr. Baptiste’s statements therefore suggest that his mother's threats and abuse constituted a significant motivating factor behind his crime.
112. In addition, according to Mr. Baptiste’s unsworn statement, he had not planned to inflict harm on his mother. It was only upon being slapped by his mother with the accompanying words; “Today, today, I must kill you,” that he removed the laces from the line and passed them over her head to stop her from slapping him. He stated that he did not intend to do anything more to his mother than tie both of her hands. While the jury may not have been satisfied that this evidence negated the mental element for the crime of murder, his state of mind may have been a mitigating circumstance in determining whether the circumstances of Mr. Baptiste's crime warranted imposition of the death penalty.
113. The Commission does consider the death of Mr. Baptiste’s mother to be a serious matter. The evidence on the record also suggests, however, that Mr. Baptiste's offense constituted a spontaneous reaction to threats and acts of abuse previously perpetrated by his mother. In the Commission's view, these circumstances are pertinent in determining whether Mr. Baptiste's offense warrants punishment by the death penalty.
I am a social worker. I am the Director of the Sapodilla Children’s Home. I am attached to the Ministry of Social Services St. George’s as a Child Welfare Officer. I live at Westerhall, St. David. The Sapodilla Home is situated at Westerhall, St. David.
I know the witness Samantha Baptiste. At present she lives at the Sapodilla Children’s Home. She is now 11 years old. I first became acquainted with Samantha Baptiste in 1989. She was 5 years old at the time. She was living with her mother in St. David’s at that time. I had occasion to visit the mother’s home and Samantha at that time. I removed Samantha from her mother’s home for medical attention. I took her to Dr. Noah and to the General Hospital. She spent 10 days at the General Hospital. I then took her to the Sapodilla Home at that time. After 3 years her mother Annie Baptiste requested that she come home. I then released Samantha Baptiste from the Sapodilla home. The same year of her release, 1992 I then asked that Samantha be sent back to the Sapodilla Home because I had observed upon follow up visits that Samantha was being kept away from school to look after her younger sisters and brothers. I took her to the Sapodilla Home for approximately 11 months. Samantha left the Sapodialla Home again at the request of her mother Annie Baptiste and went back home.
In December 1992 I received a report concerning Samantha. I dealt with the case. Following this report Samantha’s natural father was charged. He was then the boyfriend of Annie Baptiste. I then removed Samantha once again to the Sapodilla Home. This was for the third time. Annie Baptiste had 4 other children by her boyfriend. In my capacity as Social Worker I had to deal with 3 of Annie Baptiste’s other children. I had to take the 3 other children away from the care of Annie Baptiste. Following the report of 1992 and Samantha’s being taken into the Sapodialla Home she was again send back home some time in 1993. When her father was sent to prison in 1993, Samantha was sent back home. When her mother died in 1993, Samantha was then living at her mother’s residence.
I have been dealing with the Baptiste family since 1989. I have met the accused about 6 times. I first met him in the yard where he was living. I also saw him visiting Samantha and his other brothers and sisters who were then living at the Sapodilla Home. The accused assisted financially in the support of the children at the Sapodilla Home. Sometimes he would ask for Samantha’s book list and assist in getting her books and her medication.
Annie Baptiste had about 9 children in all. As far as I know no other child of Annie Baptiste besides the accused ever visited her children in the Sapodilla Home or make any contribution towards their up keep.
The accused was of a quiet disposition. He was very sympathetic about Samantha. I never noticed any friction between the accused and his mother. Samantha now lives at the Sapodilla Home. I saw the accused at the prison during my visit to the prison last year and earlier this year. I spoke with the accused on those visits. He continued to ask how Samantha was doing. Two other Baptiste children besides Samantha are still at the Sapodilla Home. The accused was a bus conductor. The children of the accused are in Grenville. I visited them to see the condition in which they lived.
115. Mrs. Findlay's testimony therefore indicated that Mr. Baptiste was of good character, and was a caring and nurturing brother to his siblings. He took an interest in their well being and also provided financial support for the members of his family. Mrs. Findlay’s testimony also suggested that due to Mr. Baptiste’s character, disposition and concern for his family members, it was likely that he would intervene to prevent his mother from inflicting harm on his younger brother. In the Commission's view, these factors pertaining to Mr. Baptiste's character are also pertinent in determining whether the death penalty is an appropriate punishment in the circumstances of Mr. Baptiste's offense.
116. As the foregoing analysis indicates, however, the law in Grenada does not permit mitigating circumstances of this nature to be considered by a court in sentencing an individual to death. The Commission recognizes that, had the court in this case been provided with the discretion under law to consider factors of this nature in determining an appropriate sentence, it may well have still imposed the death penalty. The Commission cannot, and indeed should not, speculate as to what the outcome may have been. This determination properly falls to the domestic court. What is crucial to the Commission's determination that Mr. Baptiste's death sentence contravenes the Convention, however, is the fact that Mr. Baptiste was not provided with an opportunity to present these and other mitigating factors in the context of sentencing, nor was the Court permitted to consider evidence of this nature in determining whether the death penalty was an appropriate punishment in the circumstances of Mr. Baptiste's case.
(d) three other members appointed by the Governor-General, by instrument in writing under his hand.
(b) if the Governor-General by instrument in writing under his hand, so directs.
118. The law in Grenada therefore provides for a process by which the Executive may exercise the authority to grant amnesties, pardons, or commutations of sentences. The Commission is not, however, aware of any prescribed criteria that are applied in the exercise of the functions or discretion of the Advisory Committee, save for the requirement in death penalty cases that the Minister cause a written report of the case from the trial judge, and possibly other information in the Minister's discretion, to be taken into consideration at the meeting of the Advisory Committee. Nor is the Commission aware of any right on the part of an offender to apply to the Advisory Committee, to be informed of the time when the Committee will meet to discuss the offender's case, to make oral or written submissions to the Privy Council or to present, receive or challenge evidence considered by the Privy Council. The submissions of the petitioners confirm that the exercise of the power of pardon in Grenada involves an act of mercy that is not the subject of legal rights and therefore is not subject to judicial review.
119. This process is not consistent with the standards prescribed under Articles 4, 5 and 8 of the Convention, that are applicable to the imposition of mandatory death sentences. As outlined previously, these standards include legislative or judicially-prescribed principles and standards to guide courts in determining the propriety of death penalties in individual cases, and an effective right of appeal or judicial review in respect of the sentence imposed. The Prerogative of Mercy process in Grenada clearly does not satisfy these standards, and therefore cannot serve as a substitute for individualized sentencing in death penalty prosecutions.
120. Moreover, based upon the information before it, the Commission finds that the procedure for granting mercy in Grenada does not guarantee condemned prisoners with an effective or adequate opportunity to participate in the mercy process, and therefore does not properly ensure the victims' right under Article 4(6) of the Convention to apply for amnesty, pardon or commutation of sentence.
121. In the Commission's view, the right to apply for amnesty, pardon or commutation of sentence under Article 4(6) of the Convention, when read together with the State's obligations under Article 1(1) of the Convention, must be read to encompass certain minimum procedural protections for condemned prisoners, if the right is to be effectively respected and enjoyed. These protections include the right on the part of condemned prisoners to apply for amnesty, pardon or commutation of sentence, to be informed of when the competent authority will consider the offender's case, to make representations, in person or by counsel, to the competent authority, and to receive a decision from that authority within a reasonable period of time prior to his or her execution. It also entails the right not to have capital punishment imposed while such a petition is pending decision by the competent authority. In order to provide condemned prisons with an effective opportunity to exercise this right, a procedure should be prescribed and made available by the State through which prisoners may file an application for amnesty, pardon or commutation of sentence, and submit representations in support of his or her application. In the absence of minimal protections and procedures of this nature, Article 4(6) of the American Convention is rendered meaningless, a right without a remedy. Such an interpretation cannot be sustained in light of the object and purpose of the American Convention.
122. In this respect, the right to apply for amnesty, pardon or commutation of sentence under Article 4(6) of the Convention may be regarded as similar to the right under Article XXVII of the American Declaration of every person "to seek and receive asylum in foreign territory, in accordance with the laws of each country and with international agreements," and the corresponding Article 22(7) of the Convention, which provides for the right to "seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions, in the event he is being pursued for political offenses or related common crimes." The Commission has interpreted the former provision, in conjunction with the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees, as giving rise to a right under international law of a person seeking refuge to a hearing in order to determine whether that person qualifies for refugee status. Other internationally-articulated requirements governing the right to seek asylum reflect similar minimum standards, namely the right of an individual to apply to appropriate authorities for asylum, to make representations in support of their application, and to receive a decision.
123. Consistent with the interpretation of the right to seek asylum by the Commission and other international authorities, the Commission finds that Article 4(6) of the Convention must be interpreted to encompass certain minimum procedural guarantees for condemned prisoners, in order for the right to be effectively respected and enjoyed. The Commission notes in this regard that some common law jurisdictions retaining the death penalty have prescribed procedures through which condemned prisoners can engage and participate in the amnesty, pardon or commutation process.
124. The information before the Commission indicates that the process in Grenada for granting amnesty, pardon or commutation of sentence does not guarantee Mr. Baptiste any procedural protections. By its terms, Section 74 of Grenada’s Constitution does not provide condemned prisoners with any role in the mercy process.
125. The petitioners have claimed that Mr. Baptiste has no right to make submissions to the Advisory Committee. Whether and to what extent prisoners may apply for amnesty, pardon or commutation of sentence remains entirely at the discretion of the Advisory Committee, and no procedure or mechanism is provided for that specifies the manner in which prisoners may file an application for amnesty, pardon or commutation of sentence, submit representations in support of his or her application, or receive a decision. Consequently, the Commission finds that the State has failed to respect the right of Mr. Baptiste under Article 4(6) of the American Convention to apply for amnesty, pardon or commutation of sentence.
126. Based upon the foregoing facts and the interpretive principles outlined above, the Commission finds that by imposing a mandatory death sentence on Mr. Baptiste, the State violated his rights pursuant to Articles 4(1), 5(1), 5(2), and 8(1) of the Convention.
127. More particularly, the Commission concludes that the trial judge imposed the mandatory death penalty on Mr. Baptiste, in the absence of any guided discretion to consider his personal characteristics and the particular circumstances of his offense to determine whether death was an appropriate punishment which violated his rights as established by Articles 4(1), 5(1), 5(2), and 8(1) of the American Convention. Mr. Baptiste was also not provided with an opportunity to present representations and evidence as to whether the death penalty was an appropriate punishment in the circumstances of his case. Rather, the death penalty was imposed upon him based upon the category of crime for which he was convicted and without any principled distinction or rationalization based upon the particular circumstances of his personality or his crime. Moreover, the propriety of the sentence imposed was not susceptible to any effective form of judicial review, and his execution is now imminent, his conviction for murder having been upheld on appeal by the Appellate Court in Grenada. The Commission therefore concludes that the State has violated Mr. Baptiste’ rights under Article 4(1) of the Convention not to be arbitrarily deprived of his life, and therefore, his mandatory death sentence is unlawful.
128. The Commission further concludes that the State, by sentencing Mr. Baptiste to a mandatory penalty of death absent consideration of his individual circumstances, has failed to respect his right to physical, mental and moral integrity contrary to Article 5(1) of the American Convention, and has subjected him to cruel, inhuman, or degrading punishment or treatment in violation of Article 5(2). The State sentenced Mr. Baptiste to death solely because he was convicted of a predetermined category of crime. Accordingly, the process to which he has been subjected, would deprive him of his most fundamental right, his right to life, without consideration of his personal circumstances and his offense. Treating Mr. Baptiste in this manner abrogates the fundamental respect for humanity that underlies the rights protected under the Convention, and Articles 5(1) and 5(2) in particular.
129. The Commission also concludes that the State has violated Mr. Baptiste’s right pursuant to Article 4(6) of the American Convention by failing to guarantee him an effective right to apply for amnesty, pardon or commutation of sentence, to make representations, in person or by counsel, to the Advisory Committee on the Prerogative of Mercy, and to receive a decision from the Advisory Committee within a reasonable time prior to his execution.
130. Finally, the Commission concludes that the State has violated Mr. Baptiste’s right to a hearing with due guarantees by a competent, independent and impartial tribunal. as established under Article 8 of the American Convention. Mr. Baptiste was not provided with an opportunity to make representations and present evidence to the trial judge as to whether his crime warranted the ultimate penalty of death, and was therefore denied the right to fully answer and defend the criminal accusation against him.
131. It follows from the Commission’s findings that, should the State execute Mr. Baptiste pursuant to his mandatory death sentence, this would constitute further egregious and irreparable violations of Articles 4 and 5 of the Convention.
132. Given its foregoing conclusions as to the legality of Mr. Baptiste's death sentence under Articles 4, 5 and 8 of the Convention, the Commission does not consider it necessary to determine whether sentencing Mr. Baptiste to a mandatory death penalty violated his rights to equal protection of the law contrary to Article 24 of the Convention.
133. The petitioners allege that the State has violated Mr. Baptiste’s right to have his physical, mental and moral integrity respected, as well as his right not to be subjected to cruel, unusual or degrading punishment or treatment pursuant to Article 5(1) and 5(2) of the American Convention, because of the conditions of detention to which he has been subjected. They argue further that these conditions render his execution unlawful under Article 4 of the Convention.
My cell is approximately 9 feet by 6 feet (9ft. x 6ft.) and I spend approximately 23 hours a day in my cell alone. I am provided with a bed and mattress to sleep on, but there is no other furniture in my cell. I am provided with a bucket which I use as a toilet. I am permitted to slop out the contents of the bucket once a day. Once it has been used, I am forced to endure the smell and unhygienic conditions until I am able to empty it.
The lighting in my cell is insufficient. The cell has no windows and no natural lighting, and accordingly has no ventilation. Any lighting in my cell is provided by a single bulb situated in the corridor in front of my cell.
I am provided with three meals a day. Sometimes food is brought to me in my cell where I am made to eat alone. The food is generally of a poor quality. I am provided with drinking water.
I am allowed one hour of exercise per day. There are no exercise facilities and my hour is usually spent standing in the yard.
I am allowed one visitor per month for a period of 15 minutes. I am allowed to write and receive one letter a month.
As a prisoner on death row, I am not permitted access to the prison services. I am not allowed to use the prison library, nor am I allowed access to the chaplain and religious services.
I receive inadequate medical care. Visits by the doctor are not regular and it is not always clear whether I will be able to see a doctor when necessary.
There are no adequate complaints mechanism or procedure for dealing with any complaints I may have.
135. As described in Part III of this Report, the petitioners also rely upon general sources of information regarding prison conditions in Grenada and other Caribbean countries. These include reports prepared in 1990 and 1991 by the non-governmental organization “Caribbean Rights.” While somewhat outdated, the Reports tend to support Mr. Baptiste's allegations in respect of the conditions in which he has been incarcerated since his arrest.
24. The medical officer shall see and examine every prisoner as soon as possible after his admission and thereafter as necessary, with a view particularly to the discovery of physical and mental illness and the taking of all necessary measures; the segregation of prisoners suspected of infectious or contagious conditions; the noting of physical or mental defects which might hamper rehabilitation, and the determination of the physical capacity of every prisoner for work.
26. (1) The medical officer shall have the care of the physical and mental health of the prisoners and should see daily all sick prisoners, all who complain of illness, and any prisoner to whom his attention is specially directed.
(2) The medical officer shall report to the director whenever he considers that a prisoner’s physical or mental health has been or will be injuriously affected by continued imprisonment or by any condition of imprisonment.
137. It is evident, based upon the information provided by the petitioners that the conditions of detention to which Mr. Baptiste has been subjected fail to meet several of these minimum standards of treatment of prisoners, in such areas as hygiene, exercise and medical care. For example, Mr. Baptiste claims that his cell has no windows, no natural lighting, and no ventilation, and that the lighting in his cell is insufficient. He claims that he is provided with a bucket to use as a toilet, and that he is only entitled to empty the bucket once a day and is therefore forced to ensure unpleasant smells and unhygienic conditions once the bucket is used. Mr. Baptiste also claims that he is not allowed to use the prison library, nor is he allowed access to the chaplain or religious services. Further, Mr. Baptiste states that he receives inadequate medical care, as visits from the doctor are not regular and it is not clear whether he will be able to see a doctor when necessary. Finally, Mr. Baptiste contends that there are no adequate mechanisms or procedures in the prison for dealing with his complaints.
138. The State has failed to provide any information in respect of prison conditions in Grenada, generally or as they pertain to Mr. Baptiste. Based upon the information on the record before it, the Commission concludes that the State has failed to treat Mr. Baptiste with respect for his physical, mental or moral integrity, and has therefore violated Article 5(1) of the Convention.
139. The petitioners argue that legal aid is not effectively available for Constitutional Motions before the courts in Grenada, and that this constitutes a violation of the right to a fair trial under Article 8 of the Convention. Although the petitioners have not specifically referred to Article 25 of the American Convention, the right to an effective remedy, the Commission considers that their allegations relating to the denial of an effective remedy at law also encompass Article 25 of the Convention. Therefore, the Commission has also analyzed their claims relating to the unavailability of legal aid for Constitutional Motions under Article 25 of the Convention, in conformity with Article 32(c) of the Commission’s Regulations.
140. The petitioners contend that the failure of the State to provide legal aid denies Mr. Baptiste access to the Court in fact as well as in law. The petitioners argue that to bring a Constitutional Motion before the domestic courts often involve sophisticated and complex questions of law that require the assistance of Counsel. In addition, the petitioners claim that Mr. Baptiste is indigent, and that legal aid is effectively not available to him to pursue a Constitutional Motion in the courts in Grenada. They also contend that there is a dearth of Grenadian lawyers who are prepared to represent Mr. Baptiste pro bono.
141. Based upon the material before it, the Commission is satisfied that Constitutional Motions dealing with legal issues of the nature raised by Mr. Baptiste in his petition, such as the right to due process and the adequacy of his prison conditions, are procedurally and substantively complex and cannot be effectively raised or presented by a prisoner in the absence of legal representation. The Commission also finds that the State does not provide legal aid to individuals in Grenada to bring Constitutional Motions, and that Mr. Baptiste is indigent and is therefore not otherwise able to secure legal representation to bring a Constitutional Motion.
142. The Commission considers that in the circumstances of Mr. Baptiste’s case, the State's obligations regarding legal assistance for Constitutional Motions flow from both Article 8 and Article 25 of the Convention. In particular, the determination of rights through a Constitutional Motion in the High Court must conform with the requirements of a fair hearing in accordance with Article 8(1) of the Convention. In the circumstances of Mr. Baptiste’s case, the High Court of Grenada would be called upon to determine whether the victim’s conviction in a criminal trial violated rights under the Grenada’s Constitution. In such cases, the application of a requirement of a fair hearing in the High Court should be consistent with the principles in Article 8(2) of the Convention. Accordingly, when a convicted person seeking Constitutional review of the irregularities in a criminal trial lacks the means to retain legal assistance to pursue a Constitutional Motion and where the interests of justice so require, legal assistance should be provided by the State.
143. Due to the unavailability of legal aid, Mr. Baptiste has effectively been denied the opportunity to challenge the circumstances of his conviction under Grenada’s Constitution in a fair hearing. This in turn constitutes a violation of his right under Article 8(1) of the American Convention.
144. Moreover, Article 25 of the Convention provides individuals with the right to simple and prompt recourse to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the Constitution or laws of the state concerned or by the Convention. The Commission has stated that the right to recourse under section 25 when read together with the obligation in Article 1(1) and the provisions of Article 8(1), “must be understood as the right of every individual to go to a tribunal when any of his rights have been violated (whether a right protected by the Convention, the Constitution, or the domestic laws of the State concerned), to obtain a judicial investigation conducted by a competent, impartial and independent tribunal that will establish whether or not a violation has taken place and will set, when appropriate, adequate compensation.” In addition, the Inter-American Court has held that if legal services are required either as a matter of law or fact in order for a right guaranteed by the Convention to be recognized and a person is unable to obtain such services because of his indigence, then that person is exempted from the requirement under the Convention to exhaust domestic remedies. While the Court rendered this finding in the context of the admissibility provisions of the Convention, the Commission considers that the Court's comments are also illuminating in the context of Article 25 of the Convention in the circumstances of the present case.
145. By failing to make legal aid available to Mr. Baptiste to pursue a Constitutional Motion in relation to his criminal proceedings, the State has effectively barred recourse for Mr. Baptiste to a competent court or tribunal in Grenada for protection against acts that potentially violate his fundamental rights under Grenada’s Constitution and under the American Convention. Moreover, in capital cases, where Constitutional Motions relate to the procedures and conditions through which the death penalty has been imposed and therefore relate directly to the right to life and to humane treatment of a defendant, it is the Commission's view that the effective protection of those rights cannot properly be left to the random prospect as to whether an attorney may be willing or available to represent the defendant without charge. The right to judicial protection of these most fundamental rights must be guaranteed through the effective provision of legal aid for Constitutional Motions. The State cannot be said to have afforded such protection to Mr. Baptiste. As a consequence, the State has failed to fulfil its obligations under Article 25 of the American Convention in respect of Mr. Baptiste.
146. Accordingly, the Commission concludes that the State has failed to respect Mr. Baptiste's rights under Article 8(1)of the Convention by denying him an opportunity to challenge the circumstances of his conviction under the Constitution of Grenada in a fair hearing. The Commission also concludes that the State has failed to provide Mr. Baptiste with simple and prompt recourse to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the Constitution or laws of Grenada or by the Convention, and has therefore violated the rights of Mr. Baptiste to judicial protection under Article 25 of the American Convention.
147. In light of the Commission’s findings that the State has committed several serious violations of Mr. Baptiste’s fundamental human rights under Articles 4, 5, 8, and 25 of the Convention, the Commission hereby issues Precautionary Measures pursuant to Article 29(2) of its Regulations. The Commission hereby requests that the State take all the appropriate measures to stay Mr. Baptiste’s execution to avoid irreparable harm to him, and ensure that Mr. Baptiste is not arbitrarily deprived of his life.
148. On September 27, 1999, the IACHR, at its 104th Period of Sessions, approved Report Nº 126/99 in this case on the basis of Article 50 of the Convention, and forwarded it to the State with its Conclusions and Recommendations, on November 30, 1999. In its Recommendations to the State, the Commission requested that the State inform it within two months of the measures that it had taken to comply with the Commission’s Recommendations. So that the Commission could have all the necessary information to decide whether the measures taken are adequate and whether to publish its Report pursuant to Article 51 of the American Convention. The period of two months has elapsed and the Commission has not received a response from the State of Grenada in respect of its Recommendations in this case.
149. The State is responsible for violating Mr. Baptiste’s rights under Articles 4(1), 5(1), 5(2) and 8(1), in conjunction with a violation of Article 1(1) of the American Convention, by sentencing Mr. Baptiste to a mandatory death penalty.
150. The State is responsible for violating Mr. Baptiste’s rights under Article 4(6) of the Convention, in conjunction with a violation of Article 1(1) of the American Convention, by failing to provide Mr. Baptiste with an effective right to apply for amnesty, pardon or commutation of sentence.
151. The State is responsible for violating Mr. Baptiste’s rights under Article 5(1) of the American Convention, in conjunction with a violation of Article 1(1) of the American Convention, because of Mr. Baptiste’s conditions of detention.
152. The State is responsible for violating Mr. Baptiste’s rights under Articles 8 and 25 of the Convention, in conjunction with a violation of Article 1(1) of the Convention, by failing to make legal aid available to him to pursue a Constitutional Motion.
1. Grant Mr. Baptiste an effective remedy which includes commutation of sentence and compensation.
2 Adopt such legislative or other measures as may be necessary to ensure that the death penalty is imposed in compliance with the rights and freedoms guaranteed under the American Convention, including and in particular Articles 4,5, and 8.
3. Adopt such legislative or other measures as may be necessary to ensure that the right under Article 4(6) of the American Convention to apply for amnesty, pardon or commutation of sentence is given effect in Grenada.
4. Adopt such legislative or other measures as may be necessary to ensure that the right to a fair hearing under Article 8(1) of the American Convention and the right to judicial protection under Article 25 of the American Convention are given effect in Grenada in relation to recourse to Constitutional Motions.
5. Pursuant to Article 29(2) of the Commission’s Regulations take all the appropriate measures to stay the execution of Mr. Baptiste to avoid irreparable harm to him, and ensure that he is not arbitrarily deprived of his life.
153. On March 1, 2000, in conformity with Article 51(1) and 51 (2) of the American Convention, the Commission sent Report Nº 6/00, which was adopted in this case on February 24, 2000 to the State of Grenada, and granted the State a period of one month for it to adopt the necessary measures to comply with the foregoing recommendations and to resolve the situation under analysis. The period of one month has elapsed and the Commission has not received a response from the State of Grenada in respect of its Recommendations in this case.
For these reasons, the Commission decides that the State has not taken all of the appropriate measures to comply with the recommendations set forth in this report.
Based on the foregoing and pursuant to Article 51(3) of the American Convention and Article 48 of the Commission’s Regulations, the Commission decides to reiterate the conclusions and recommendations contained in Report Nº 4/00. The Commission further decides to make public this report and include it in the Commission’s Annual Report to the General Assembly of the OAS.
Done and signed by the Inter-American Commission on Human Rights in the city of Washington, D.C., on the 13th day of the month of April, 2000 (Signed): Hélio Bicudo, Chairman; Claudio Grossman, First Vice-Chairman; Juan Méndez, Second Vice-Chairman; Commissioners: Marta Altolaguirre, Robert K. Goldman, Peter Laurie and Julio Prado Vallejo.
 The Commission refers in this regard to the interpretative approach advocated by the European Court of Human Rights, that its governing Convention is “a living instrument which…must be interpreted in light of present-day conditions.” See Eur. Court H.R., Tyrer v. United Kingdom (1978) 3 E.H.R.R. 1 at para. 31.
 Advisory Opinion on the Death Penalty, supra, at para. 57.
 U.N.H.R.C., Lubuto v. Zambia, Communication Nº 390/1990, U.N. Doc. CCPR/C/55/D/390/1990/Rev. 1, para. 7.2.
 Ndiaye Report, supra, para. 377. With respect to international sentencing standards more generally, the International Criminal Tribunal for the former Yugoslavia provides one of the few modern examples of an international tribunal adjudicating serious violations of international humanitarian law. While the penalty imposed by the Tribunal is limited to imprisonment, the Tribunal’s governing statute specifically provides that’ “[i]n imposing the sentences, the Trial Chambers should take into account such matters as the gravity of the offence and the individual circumstances of the convicted person.” Statute for the International Criminal Tribunal for the former Yugoslavia, Annex to the Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, U.N., Doc. S/25704/Add.1/Corr.1 (1993), Art. 24. See similarly Statute for the International Criminal Tribunal for Rwanda, Annex to Security Council Resolution 955, U.N. SCOR, 49th Sess., 3453 mtg., U.N. Doc. S/RES/955 (1994), Art. 23.
 Woodson v. North Carolina 49 L Ed 2d. 944.
 The Constitution of the United States, Amendment VIII (1791) (providing “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”).
 Id. Amendment XIV, Section I (providing “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”).
 See 408 US, at 286-291, 33 L Ed 2d 346, 92 S Ct 2726 (Brennan J. concurring); id., at 306, 33 L Ed 2d 346, 92 S Ct 2726 (Stewart, J., concurring).
 Pennsylvania ex rel. Sullivan v. Ashe, 302 US 51, 55, 82 L Ed43, 58 S Ct 59 (1937).
 See Williams v. New York, 337 US, at 247-249, 93 L Ed 1337, 69 S Ct 1079; Furman v. Georgia, 408 US, at 402-3, 33 L Ed 2d 346, 92 S Ct 2726 (Burger C.J., dissenting).
 See Trop v. Dulles, 356 US, at 100, 2 L Ed 2d 630, 78 S Ct 590 (plurality opinion).
 Id. at 961. See also Roberts (Stanislaus) v. Louisiana, 428 U.S., 325, 333, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).
 The State v. Makwanyane and McHunu, Judgment, Case Nº CCT/3/94 (6 June 1995) (Constitutional Court of the Republic of South Africa).
(b) if the presiding judge or court, as the case may be, with due regard to that finding, is satisfied that the sentence of death is the proper sentence.
 Id. pp. 32-36. The Court went on to conclude that additional factors such as discrimination and the “imperfection” inherent in criminal trials may also lead to arbitrary results in the imposition of the death penalty, and determined further that such arbitrary results could not be appropriately remedied through strict due process, as had been endeavored in the United States. Id. at 36-43.
 Criminal Procedure Act Nº 51 of 1977, section 322(2A) (as amended by section 13 of Act Nº 107 of 1990).
 S. v Nkwanyana and Others 1990 (4) SA 735 (A) at 743E-745A.
 S v. Masina and Others 1990 (4) SA 709 (A) at 718G-H.
 S v. J 1989 (1) SA 669 (A) at 682G. “Generally speaking, however, retribution has tended to yield ground to the aspects of correction and prevention, and it is deterrence (including prevention) which has been described as the ‘essential’, ‘all important’, ‘paramount’, and ‘universally admitted’ object of punishment.” Id. at 682I-J (cited with approval in S v P 1991 (1) SA 517 (A) at 523G-H. CF. R. v Swanepoel 1945 AD 444 at 453-455.
 Per Holmes JA in S v Letsolo 1970 (3) SA 476 (A) at 477B (cited with approval by Nicholas AJA in S v Dlamini 1992 (1) SA 18 (A) at 31I-32A in the context of the approach to sentencing under section 322(2A)(b) of the Criminal Procedure Act Nº 51 of 1977).
 S v Senonohi 1990 (4) SA 727 (A) at 734F-G; S v Nkwanyana, supra at 749A-D.
 Bachan Singh v. State of Punjab, (1980) 2 S.C.C. 475.
 Id. Trial Transcript p. 1, (10).
 Unsworn Statement of Mr. Baptiste from the dock, 10th July, 1995, 9:10 a.m. pp. 72- 73, (30) Trial Transcript, Case Nº 181 of 1994, Regina and Rudolph Baptiste.
 See Reckley v. Minister of Public Safety (Nº 2)  2 W.L.R. 281 at 289-291 (finding that the exercise of the Prerogative of Mercy by the Minister of Public Safety in The Bahamas involved an act of mercy that was not the subject of legal rights and was therefore not judicable); de Freitas v. Benny  2 A.C. 239.
 See similarly Universal Declaration on Human Rights, Article 14 (providing for the right of every individual to "seek and to enjoy in other countries asylum from persecution.").
 I/A. Comm. H.R., Haitian Center for Human Rights and others (United States), Case Nº 10.675 (13 Match 1997), Annual Report 1996, para. 155.
 See e.g. Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, paras. 189-219 (prescribing basic requirements for the procedures for determining refugee status, including the right of an applicant to be given the necessary facilities for submitting his case to the authorities concerned, and that the applicant be permitted to remain in the country pending a decision on his initial request for refugee status); Council of Europe, Resolution on minimum guarantees for asylum procedures, Brussels, 21 June 1995, Articles 10, 12, 14, 15, 23 (prescribing common procedural guarantees to be provided by Member States of the European Union in processing asylum application, including the right of an asylum-seeker, at the border or otherwise, to have an opportunity to lodge his asylum application as early as possible, to remain in the territory of the state in which his application has been lodged or is being examined as long as the application has not been decided upon, to be given the opportunity of a personal interview with an official qualified under national law before a final decision is taken on the asylum application, and to have the decision on the asylum application communicated to the asylum-seeker in writing.).
 In the State of Ohio, for example, clemency review has been delegated in large part to the Ohio Adult Parole Authority (OAPA). In the case of an inmate under sentence of death, the OAPA must conduct a clemency hearing within 45 days of the scheduled date of execution. Prior to the hearing, the inmate may request an interview with one or more parole board members. The OAPA holds a hearing, completes its clemency review, and makes a recommendation to the Governor. If additional information later becomes available, the OAPA may in its discretion hold another hearing or alter its recommendation. See Ohio Constitution, Art. III, s. 2, Ohio Revised Code Ann., s. 2967.07 (1993). See also Ohio Adult Parole Authority v. Woodward, Court File Nº 96-1769 (25 March 1998)(U.S.S.C.) (finding that Ohio's clemency procedures do not violate the U.S. Constitution's Due Process Clause).
 United Nations Standard Minimum Rules for the Treatment of Prisoners, adopted August 30, 1955 by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, U.N. Doc. A/CONF/611, annex I, E.S.C. res. 663C, 24 U.N. ESCOR Supp. (Nº 1) at 11, U.N. Doc. E/3048 (1957), amended E.S.C. res. 2076, 62 U.N. ESCOR Supp. (Nº 1) at 35, U.N. Doc E/5988 (1977).
For cases which concern the determination of a person's rights and obligations of a civil, labor, fiscal or any other nature, Article 8 does not specify any minimum guarantees similar to those provided in Article 8(2) for criminal proceedings. It does, however, provide for due guarantees; consequently, the individual here also has the right to the fair hearing provided for in criminal cases.
See also I/A Comm. H.R., Loren Laroye Riebe Star and others v. Mexico, Report Nº 49/99 (13 April 1999), Annual Report 1998, para. 70 (interpreting Article 8(1) in the context of administrative proceedings leading to the expulsion of foreigners as requiring certain minimal procedural guarantees, including the opportunity to be assisted by counsel or other representative, sufficient time to consider and refute the charges against them and to seek and adduce corresponding evidence).
 See similarly Currie v. Jamaica , Communication Nº 377/1989, U.N.Doc. Nº CCPR/C/50/D/377/1989 (1994), para. 13.4 (concluding that where a convicted person seeking Constitutional review of irregularities in a criminal trial has not sufficient means to meet the costs of legal assistance in order to pursue his Constitutional remedy and where the interests of justice so require, Article 14(1) of the International Covenant on Civil and Political Rights required the State to provide legal assistance).
 See Peru Case, supra, pp. 190-191.
 I/A Court H.R., Exceptions to the Exhaustion of Domestic Remedies, supra, para. 30.
 See similarly U.N.H.R.C., William Collins v. Jamaica, Communication Nº 240/1987, U.N. Doc. Nº CCPR/C/43/D/240/1987 (1991), para. 7.6 (finding that in capital punishment cases, legal aid should not only be made available, it should enable counsel to prepare his client's defense in circumstances that can ensure justice).

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CASE NAME: E.K., L. und A. v. F.
The German sellers, plaintiffs, delivered frozen meat by ship to Egypt and Jordan for a Swiss buyer, defendant. The buyer claimed lack of conformity of the goods and refused to pay the purchase price. The lower court ruling in favour of the sellers was confirmed by the appellate court. The buyer appealed further to the superior appellate court.
The issues before the court were whether the buyer had a right to declare the contract avoided and whether the buyer was entitled to damages for the loss of clientele, which the buyer claimed had resulted from the seller's breach of contract.
The court held that the difference in quality between that as had been agreed and that as was delivered was not significant enough to give the buyer a right to declare the contract avoided, even though experts estimated that the decrease in value of the goods, which were too fat and too wet, amounted to 25.5 per cent. The court stated that the CISG operates from the principle that the contract shall be avoided only in exceptional circumstances and that the right to declare a contract avoided is the buyer's most serious remedy. Whether or not this remedy is justified has to be determined by taking into account all the relevant circumstances of the particular case. Such factors include the buyer's ability to otherwise process the goods or to sell them, even at a lower price. The court confirmed the lower court's finding that the buyer had had such alternatives and therefore denied the buyer the right to declare the contract avoided. The buyer could merely avail itself of a reduction in price of 25.5 per cent (articles 25 and 49(1)(a) CISG).
In regard to the second issue, the lower appellate court had held that the buyer's loss of clientele as a result of the breach was not foreseeable and that the seller could be expected to undertake such an exceptional risk only if representations were made during the negotiations and if the seller had had an opportunity either to decline responsibility or take it into account when fixing the price. By contrast, the superior appellate court held that such loss was foreseeable, particularly since the buyer was a wholesale trader in a sensitive market and had no alternative in order to carry out its obligation in time. Under the circumstances of the present case, no specific agreement as to the seller undertaking such risk was needed (article 74 CISG). For these reasons, the court found that the buyer was entitled to damages but referred the case back to the lower court as to the amount of the damage award.
Not at issue before the superior appellate court was 1) the holding by the lower court that a notice of lack of conformity made within 7 to 17 days was in time, given that the goods in question concerned meat that was frozen, not fresh (article 39 CISG); and 2) the ruling that, as the CISG does not expressly deal with the burden of proof, such lacuna must be filled by interpretation of the Convention.
A. Plaintiffs 1, 2 and 3 [Sellers], all seated or domiciled in Germany, lodged a claim with the Canton Court of Zug against Defendant [Buyer] with its seat in Switzerland. [Sellers'] claim is based on unpaid invoices for the delivery of meat to [Buyer]. [Buyer] refused payment alleging that the meat which was shipped on the MV Kronshtadtskiy as well as on the MV Atlas-Venture and arrived at the port of Alexandria, Egypt, on 1 September 1992 and on 21 October 1992 was deficient. The Canton Court of Zug upheld the [Sellers'] claim in most aspects and ordered [Buyer] to pay to [Seller 1] the amount of Deutsche Mark [DM] 56,675.73 and US $363,861.85 plus interest, to [Seller 2] the amount of DM 66,231.94 and US $225,020.38 plus interest, and to [Seller 3] the amount of US $74,066.64 plus interest.
An appeal lodged by [Buyer] was partly allowed by the Court of Appeals of the Canton Zug. By judgment of 24 March 1998 - explained by order of 29 April 1998 on request of [Sellers] - the Court ordered [Buyer] to pay to [Seller 1] the amount of DM 56,675.73, to [Seller 2] the amount of US $158,543.00 and DM 66,231.94 and to [Seller 3] the amount of US $62,001 plus in each case interest of 10% from the respective payment date.
B. [Buyer] appealed to the Supreme Court against the judgment of the Court of Appeals. [Buyer] seeks to have the judgment quashed and the [Sellers'] claim rejected.
[Sellers] request the rejection of the [Buyer's] appeal.
1. The Court of Appeals correctly ruled that the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (in the following: CISG) is applicable. The parties to the sales contracts have their seats in different States, namely Germany and Switzerland, which are Contracting States of the CISG (Art. 1(1)(a) CISG).
2. The previous instance came to the conclusion that, according to the rules of the CISG, [Buyer] only has a right of price reduction and not a right of complete or partial avoidance of the contract concerning the meat that was transported by the MV Kronshtadtskiy. In the appeal, [Buyer] puts forward that the challenged judgment violates the rules of the CISG in this aspect.
a) As a legal ground for avoidance of the contract, Art. 49(1)(a) CISG must be considered. It requires that the non-fulfilment of a duty of the seller constitutes a fundamental breach of contract. A breach of contract is fundamental according to Art. 25 CISG if it causes such consequences for the other party that it is substantially deprived of what it could have expected under the contract, except if the party committing the breach of the contract did not foresee this consequence and a reasonable person in the same position would not have foreseen the consequence in the same situation, either. The central element of Art. 25 CISG is the issue whether the party which obeyed the contractual obligations is essentially deprived of what it could have expected under the contract. In determining that, it is not the subjective estimation which is decisive, but an objective standard must be used. In a second step, the foreseeability-barrier can lead to an exculpation of the seller (Karollus, in Honsell, Kommentar zum UN-Kaufrecht [Commentary on the CISG], Berlin 1996, Rz. 15 and 16 as well as 24 et seq. concerning Art. 25).
b) If the breach of contract is based on a deviation from the contractual characteristics of the goods or any other deficiency of the goods, it must be determined whether a further processing or disposal of the goods in the usual course of business - even with a markdown or something alike - is possible without an unreasonable effort and is reasonable (BGHZ [*] 132, 290-305, E.II/2c aa; Schnyder/Straub, in Honsell, see above, Rz. 28 concerning Art. 49; Herber/Czerwenka, Internationales Kaufrecht [International Sales Law], Munich 1991, Rz. 7 concerning Art. 25 CISG). Thereby, it must be kept in mind that the CISG establishes the preference of the preservation of the contract: in case of doubt, the contract shall also be preserved in case of disturbances, while the avoidance of the contract shall be exercised only under exceptional circumstances (Karollus, see above, Rz.11 concerning Art. 25). The buyer shall primarily make use of the other remedies, namely price reduction and compensation, with the reversed transaction constituting the last recourse in reacting to the other party�s breach of contract which is that essential that it deprives that party of its interest in the fulfilment of the contract (BGHZ 132, 2909-305, E.II/2c dd). Whether a breach of contract in the given situation is fundamental, according to the explained standard and if the most severe remedy of avoidance of the contract is justified, depends on the particular circumstances of the individual case.
c) The Court of Appeals determined that the meat which was delivered by the MV Kronshtadtskiy had a reduced value of 23.5% due to an excessive proportion of fat and of 2 % due to blood and wetness in the pieces of meat. To the extent that the [Buyer] in the appeal also refers to the rancidity of the meat (reduced value of 16.7%) as well as the brown discoloration (reduced value of 2.5%) determined by Dr. ..., this contradicts the factual determinations of the previous instance (Art. 63(2) OG [*]) due to which these losses of quality only took place after the passing of the risk (shipping in Beverwijk) and therefore cannot be asserted against [Sellers] and which determinations are binding on the Supreme Court. The proportion of fat of the meat was between 43.6% (sample of the laboratory of Dr. ...) and 53.5% (average result of the samples taken by Dr. ...), while the standard agreed upon for the industrial processing of the meat in Egypt was a proportion of fat of 30%. It can further be taken from the factual findings of the previous instance that the reduced value is caused by the loss of the fat tissue in the processing. Apart from that, the meat was judged to be of good quality, namely concerning the storage life and in bacteriological regard. In the first written notice of deficiencies of 16 October as well as in the second one of 22 October 1992, [Buyer] offered to take the meat at a lower price.
d) [Buyer] wants the offer to take the meat at a lower price to be understood in the sense that it was only an offer in order to mitigate the damages, from which it cannot be concluded that [Buyer] did not regard the deficiency as fundamental in the sense of Art. 49 CISG in connection with Art. 25 CISG. This is probably true, but still does not change the fact that [Buyer] did see the possibility and, according to its own estimation, did actually have the ability to dispose of the meat despite its reduced value at a lower price in the frame of its own business activity in Egypt. This possibility existed, even taking into account the reduced value due to the rancidity and discoloration which cannot be blamed on the [Sellers] according to the determinations of the previous instance. [Buyer] further asserts that in German food trade involving fruit and vegetables, the buyer is not limited to price reduction but can also claim rescission of the contract in case of a deviation of quality of more than 10% (see Huber, in von Caemmerer/Schlechtriem, Kommentar zum Einheitlichen UN-Kaufrecht [Commentary on the CISG], 2nd edition, Munich 1995, Rz. 36 concerning Art. 46, footnote 70). The comparison is not convincing because, not only the gravity of the deviation of quality is decisive, but also the kind of deviation and whether a processing is possible and reasonable in the particular circumstances of the individual case. And this was exactly the case here. The deviation of quality was constituted by the excessive proportion of fat and too much wetness which leads to the loss of weight in the industrial processing which was provided for. A further detriment cannot be taken from the factual findings of the previous instance. Under these circumstances, the deviations from the contract are not that fundamental that the avoidance of the contract must be the adequate legal consequence.
3. a) According to the factual findings of the previous instance, [Buyer] gave notice of defects concerning 5,500 boxes (equivalent to 133 tons) and concerning 6,601 boxes (equivalent to 162 tons) while it did not find fault with the rest of the delivery of 209 tons and thereby accepted it. Concerning this aspect, it is asserted in the appeal that the statement of the amounts in the notice of deficiencies of 22 October 1992 was made erroneously and that these have been corrected by the writing of 26 November 1992. Contrary to that, it must be noted that the notice of defects only referred to the goods marked with "NB", not to the whole amount of the delivery. As well in the mentioned writing of 26 November 1992, [Buyer] refers to its allegation that [Sellers] had refused its proposal to consider the part of the delivery marked with the expression NB for a lower price. Due to that, with regard to the principle of good faith, [Sellers] did not have to understand the notice of deficiencies in the way that it referred to the whole amount of the delivery. Finally, in the writing of 26 November 1992, [Buyer] did refer to the whole amount of the delivery. However, a notice of defects at that time would have been too late, as according to Art. 39(1) CISG it must be made within a reasonable period of time after the moment in which the buyer discovered the deficiency or should have discovered it. The delivery was at [Buyer]�s disposition for examination on 5 October 1992 as [Buyer] itself concedes. The previous instance correctly assumes that the notice of defects of 22 October 1992 did meet the requirement "within a reasonable time", but this is not true for the extended notice of 26 November 1992, as [Buyer] would have been able to examine the whole delivery from the beginning and to refer the notice of defects to the whole delivery respectively.
b) In the appeal, [Buyer] further asserts that the previous instance would have had to adjudge damages to it concerning the delivery on the MV Kronshtadskiy. This assertion is unfounded. In general, a right to damages can stand besides the right of price reduction (Art. 45 CISG). However, it must be taken into consideration that a right to damages is excluded concerning the respective deficiency itself (Schnyder/Straub, see above, Rz. 57 concerning Art. 50; Huber, see above, Rz. 43 concerning Art. 45: the amount of price reduction reduces the total damage to be compensated). The rights asserted by [Buyer] are to be seen in the context with avoidance of the contract which was correctly refused by the previous instance and do not refer to other rights which could stand besides the price reduction.
4. Concerning the delivery on the MV Atlas-Venture, [Buyer] finds fault with the fact that the previous instance adjudged to [Sellers] the insurance payment in the amount of US $25,495. [Buyer] alleges that the insurance payment "did not have anything to do with any amounts payable by [Buyer] to [Sellers] due to the sales contracts." However, in the challenged judgment, the Court of Appeals based the setting-off on the reference to [Buyer]'s own elaborations according to which the insurance payment received for the damage of the MV Atlas-Venture delivery had to be set off pro-rata against the claim of [Sellers]. Thereby, the Court of Appeals justifies its decision purely on procedural law. However, the application of the Cantonal procedural law cannot be reviewed in an appeal (Art. 55(1)(c) OG [*]).
5. a) [Buyer] further alleges that the previous instance did not adjudge the compensation it had claimed as a counterclaim in the amount of US $144,000 for the lost profits caused by the loss of a client. Concerning this, the Court of Appeals elaborates with reference to Stoll (in von Caemmerer/Schlechtriem, see above, Rz. 24, 36 and 45 concerning Art. 74) that it might be foreseeable for the seller that in case of a delivery of deficient goods to a wholesaler, in the view of the existing competition, an essential part of the clients to whom the goods are sold would withdraw and that this would cause fundamental damage. However, the buyer can only rely on the assumption of such an extraordinary risk by the seller if it gave detailed information on that during the contractual negotiation and if the seller had had the opportunity to refuse liability or to include the risk in the calculation of the price; the buyer must be aware that the seller usually calculates the price without considering such a special risk. As there are no substantiated elaborations on that, it is not necessary to determine whether the damage did actually take place.
b) Art. 74 CISG sets forth that the damage may not exceed the loss which the party in breach of the contract foresaw as a possible consequence of the breach or ought to have foreseen due to the circumstances which it knew or ought to have known. This limitation to foreseeable damages (the so-called contemplation rule) traces back to Anglo-American law (Herber/Czerwenka, see above, Rz. 10 concerning Art. 74 CISG; detailed: Florian Faust, Die Vorhersehbarkeit des Schadens gemäss Art. 74 Satz 2 UN-Kaufrecht [The Foreseeability of the Damage According to Art. 74, sentence two, CISG], Tübingen 1996, p. 75 et seq.).
Indeed, it is true that for foreseeability, the contractual agreements and the surrounding circumstances at the time of the conclusion of the contract, such as hints to the objective of the contract and special requirements for the goods, are of decisive relevance (Piltz, Internationales Kaufrecht [International Sales Law], Munich 1993, p. 291 f., Rz. 452, 454). Yet it is not possible to establish a general rule which says that certain damages are only foreseeable if they have been expressly dealt with in the contractual negotiations. This is also true for goodwill disadvantages and for damages that are caused because a buyer loses a client due to a deficient delivery. Such damages can be foreseeable by the seller if the buyer is obviously an intermediary in a sensitive market and in addition has no possibility to otherwise supply its clients with complying goods within the time limit due to its own precautions (see judgment of the German Supreme Court of 24 October 1979, published in IPRax [*] 1981, p. 96 et seq., affirming Herber/Czerwenka, see above, Rz. 12 concerning Art. 74 CISG). An express hint to this risk is - contrary to the previous instance - not necessary if the seller is or ought to be otherwise aware of it due to the concrete circumstances, as this has nothing to do with foreseeability (Weitnauer, Nichtvoraussenhbarkeit eines Schadens nach Art. 82 S. 2 des Einheitlichen Gesetzes über den internationales Kauf beweglichen Sachen [Non-Foreseeability of Damages according to Art. 82, sentence two, of ULIS] [*], IPRax 1981, p. 84, IV.I in fine). [Sellers] knew that they were delivering to a wholesaler who would resell the meat. The Atlas-delivery, furthermore, constituted a large amount, 172 tons, of meat. Therefore, at the time of the conclusion of the contract, [Sellers] must have been aware that a deficient delivery would cause problems between [Buyer] and its clients which could not be easily solved by [Buyer], e.g., through a short-time substitute delivery. [Sellers] also had to take into account that [Buyer] could lose clients completely in case of a deficient delivery and that it could thereby suffer additional damages.
The previous instance, therefore, incorrectly negated foreseeability in the sense of Art. 74 CISG. The challenged judgment is contrary to the law in this respect so that it must be rescinded. The Supreme Court cannot itself decide on the claim for damages in the amount of US $144,000 due to the lack of factual findings on the existence and the amount of the damages. Therefore, the case is remanded to the previous instance for a new decision in the sense of these considerations.
6. Finally, [Buyer] finds fault with the obligation to payment of default interest at the rate of 10%. It alleges a violation of Art. 78 CISG on the basis that under the German Commercial Code, which is applicable here, only interest at a rate of 5% is due.
In the challenged judgment, it is determined that [Buyer] did contest the interest rate in the appellate proceedings but that it did not give any further details why the first instance incorrectly calculated it; in so far it is referred to the elaborations of the previous instance, which means of the Canton Court. In so far as the Canton Court declared the statement of [Buyer] to be irrelevant for procedural reasons, they cannot be put forward by [Buyer] again at the Supreme Court due to the prohibition of new factual assertions (Art. 55(1)(c) OG [*]).
For the rest, the following can be stated. The claim for interest can generally be based on Art. 78 CISG. According to that, the party to the contract which fails to pay the price or any other amount due must pay to the other party interest on these amounts. However, as the interest rate is not regulated in the CISG, the national law that is, according to the rules of international private law, the law governing the contract must be applied (Magnus, in Honsell, see above, Rz. 12 concerning Art. 78; Herber/Czerwenka, see above, Rz. 6 concerning Art. 78 CISG). In the present case, this is undisputedly German law, as the [Sellers] have their domicile in Germany (Art. 118(1) IPRG [*] in connection with the Hague Convention of 15 June 1955 concerning the Law Applicable to International Sales of Movable Goods). According to the judgment of the Canton Court, the default interest rate is 5% under section 252 of the German Commercial Code, while under the aspect of the default damage a higher interest damage exists if the creditor asserts the expenditure of credit interest under section 286 of the German Civil Code. This second question which does not concern the interest rate, is not determined by application of German law but by application of the CISG. This is expressly reserved by Art. 78 CISG for a claim of damage according to Art. 74 CISG so that the creditor of the payment can assert default damages due to the usage of credit which exceeds the claim of interest (Herber/Czerwenka, see above, Rz. 8 concerning Art. 78 CISG; Magnus, see above, Rz. 10 concerning Art. 78). From the legal point of view, this is congruent with the result reached by the Canton Court, and by reference to their elaborations also the Court of Appeals. The Supreme Court is bound by the factual findings of the proceedings at the Canton Court which state that [Sellers] 1 and 2 used current account credit at an average rate of 10%. In the appeal, no admissable challenges of these factual findings have been put forward according to Art. 63(2) or 64 OG [*]. [Buyer]�s assertion of a violation of Art. 78 CISG is therefore unfounded as far as it is admissible.
7. For these reasons, the appeal is partly founded, the challenged judgment is rescinded and the case is remanded to the previous instance for a new decision in the sense of these considerations.
[Buyer] did only in so far succeed with its requests in the appeal as the case is in one aspect remanded to the previous instance for a new decision. Under these circumstances it is justified to impose two-thirds of the costs of the federal court to [Buyer] and one-third of these costs to [Sellers] (Art. 156(3) OG). [Buyer] further has to pay [Sellers] a reduced party compensation (Art. 159(3) OG).
1. The appeal is partly allowed, the judgment of the Court of Appeals (Civil Division) of the Canton of Zug of 24 March 1998, explained by order of 29 April 1998, is rescinded and the case is remanded to the previous instance for a new decision in the sense of these considerations.
2. The court fee of Swiss francs [Sfr.] 12,000 is imposed on [Buyer] at two-thirds in the amount of Sfr. 8,000 and on [Sellers] in joint liability at one-third in the amount of Sfr. 4,000.
3. [Buyer] has to pay [Sellers] a reduced party compensation in the total amount of Sfr. 4,000 for the federal court procedure.
4. This judgment will be sent to the parties and to the Court of Appeals (Civil Division) of the Canton of Zug in writing.
* All translations should be verified by cross-checking against the original text. For purposes of this translation, the Plaintiffs of Germany are referred to as [Sellers] and the Defendant of Switzerland is referred to as [Buyer]. Amounts in U.S. currency (dollars) are indicated as [US $]; amounts in the former currency of Germany (Deutsche Mark) are indicated as [DM]; and amounts in the currency of Switzerland (Swiss francs) are indicated as [Sfr].
Translator's note on other abbreviations: BGHZ = Entscheidungen des Bundesgerichshofes in Zivilsachen [Official Reporter of Decisions of the German Federal Supreme Court on Civil Matters]; IPRax = Praxis des Internationalen Privat- und Verfahrensrechts [German law journal]; IPRG = Bundesgesetz über das internationale Privatrecht [Swiss Code on the Conflict of Laws]; OG = Bundesgesetz über die Organisation der Bundesrechtspflege [Swiss Federal Code on Court Organization]; ULIS = Uniform Law of International Sales (Hague Sales Convention of 1964).
** Kirstin Stadtländer is a trainee lawyer at the Higher Regional Court of Düsseldorf. She obtained her law degree at Homboldt University Berlin and was a member of the team of Humboldt University at the 9th Willem C. Vis International Commercial Arbitration Moot 1001/2 and a coach of the team at the 10th Willem C. Vis International Commercial Arbitration Moot 2002/03.
*** Jan Henning Berg is a law student at the University of Osnabrück, Germany and participated in the 13th Willem C. Vis Moot with the team of the University of Osnabrück. He has coached the team of the University of Osnabrück for the 14th Willem C. Vis Moot and 4th Willem C. Vis (East) Moot.

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