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Concern not with the interest of criminals but with justice!
Posted: Thursday, December 12, 2002

by Shelagh Simmons
Co-ordinator Caribbean Justice

Newsday recently published comments from a reader on a letter we had sent the Attorney General of Jamaica regarding Lee Boyd Malvo, jointly charged with the recent sniper killings in the United States ("In the interest of the criminal only!" Newsday, Saturday, 7 December 2002).

The correspondent, G Wildman of Glencoe, suggested our only concern is with the interest of criminals and accused us of "insensitivity" because we did not express sympathy for the victims in this case.
However, he/she failed to mention some important facts.

Lee Boyd Malvo is 17 years old. He is a minor who, if convicted, could face a punishment that is forbidden under international law. The US is one of only a handful of countries - including Iran and Saudi Arabia - that continues to execute juvenile offenders, a practice abhorred by most of the world. In Virginia, the state chosen to try him and where the minimum age for death penalty eligibility is just 16, there are seemingly no qualms about putting someone so young to death even though they are not considered mature or responsible enough to vote.

Mr Malvo is a Jamaican national whose country is obliged to assist him under the Vienna Convention on Consular Rights, and a bilateral agreement with the US. Unfortunately, the US has not always complied with its obligations towards foreign nationals. And it was reported that police had elicited a confession from Mr Malvo in the absence of any legal representatives or court-appointed guardians.

Of course we are horrified at the crimes with which Mr Malvo has been charged. Of course we feel the utmost sympathy for those who have lost their loved ones in this and all cases of murder. It is a point we make on many occasions. But our letter to the Jamaican Attorney General was a specific request for assurances that everything possible will be done to safeguard rights and ensure fair treatment for one of his country's citizens - a vulnerable minor, who has not yet been tried or convicted of any offence.

Our concern is not with "the interest of the criminal only" but with justice, and that is why we wrote as we did.

Full text of our letter of 27 November 2002 to the Attorney General of Jamaica:-
We write regarding Jamaican national, Lee Boyd Malvo (also known as John Lee Malvo), who is currently jointly facing capital charges in Virginia, United States, for a series of sniper killings which took place in several states.

If convicted, 17 year old Mr Malvo could receive a sentence that contravenes international law prohibiting the execution of juvenile offenders - ie, those convicted of crimes committed when they were under the age of 18.

It is of great concern that the State of Virginia has apparently been selected to try him specifically because the age limit there for death penalty eligibility is 16.

Moreover, we understand that Mr Malvo was interrogated and allegedly gave a confession to Virginian police at a time when his legal representative was not present, and that during this period his court-appointed guardian was denied access to him.

You will be aware that in the past the United States has not always complied with its Vienna Convention on Consular Relations (VCCR) obligations concerning the treatment of foreign nationals. In June 2001, the International Court of Justice (ICJ)** upheld a complaint lodged by the Federal Republic of Germany that the United States had failed to notify "without delay" 2 German nationals charged with capital offences of their right to consular assistance. The ICJ also upheld a complaint that the United States had failed to notify the German Consul of their detention. The German nationals were consequently deprived of the assistance to which they were entitled, and were later executed.

We should be grateful if you would confirm that the Jamaican Consul has been informed of Mr Malvo's detention and the charges he faces, in accordance with the mandatory requirements of the bilateral consular agreement between Jamaica and the United States, and Article 37 of the VCCR, to which Jamaica became a party on 9 February 1976.

We should also be grateful for your confirmation that the United States authorities have informed Mr Malvo of his rights to consular assistance, in accordance with Article 36 of the VCCR.

Finally, Mr Malvo is a vulnerable minor facing extremely serious charges which, if he is convicted, could result in his execution. We therefore seek your urgent assurance that the Jamaican Consul is providing him with every possible assistance as required under Article 5(h) of the VCCR, which states that consular duties include "safeguarding, within the limits imposed by the laws and regulations of the receiving State, the interests of minors and other persons lacking full capacity who are nationals of the sending State, particularly where any guardianship or trusteeship is required with respect to such persons".

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