Report No. 123 (1999) IACHR. Petition No. 12.086 (Bahamas)

• Report Number: 123
• Petition Number: 12.086
• Case Type: Admissibility
• Court: Inter-American Comission of Human Rights
• Respondent State: Bahamas
• Alleged Victim: Brian Schroeter y otro

Report Nº 123/99 ; CASE 12.086; B.S.A.J.B.; THE BAHAMAS; September 27, 1999 I. SUMMARY 1. T. report concerns a petition presented to the Inter-American Commission on Human Rights (hereinafter “the Commission”) by Anthony Kenny Esq., Solicitor, of Messrs. L.W.D., Solicitors, in London, United Kingdom, (hereinafter as “the petitioners”) by letter dated January 7, 1999, on behalf of Messrs. B.S. and Jeronimo Bowleg (hereinafter "the victims"). The petition alleges that the Commonwealth of T.B. (hereinafter “the S.” or “The Bahamas”) violated the victims' rights under the American Convention on Human Rights (hereinafter “the Convention”) and the American D. on the Rights and Duties of Man (hereinafter “the D.”). 2. The petitioners state that the victims, who are nationals of The Bahamas, were convicted of murder on J. 17, 1994, and a mandatory death sentence was imposed on them. According to the petitioners, the victims appealed to the Court of Appeal of T.B. on September 4, 1996. The Court dismissed their appeals on J. 23, 1997. The victims then petitioned the Judicial C. of the Privy Council for Special Leave to Appeal their convictions, and the Privy Council dismissed their petitions on J.3., 1998. 3. The petitioners argue that the petition is admissible because the victims have satisfied the requirements of Articles 46(1) of the Convention and 37(1) and 38(2) of the Commission’s Regulations. The petitioners also argue that the S. has violated the victims’ rights under Articles 4(1) 4(2), 4(6) 5, 7(5), 8 (1), 8(2), 24 and 25 of the Convention and Articles I, II , XVII, XVIII, XI, XXV, and XXVI of the D.. 4. In their petition, the petitioners requested that the Commission issue Precautionary Measures pursuant to Article 29(2) of its Regulations against the S., and ask that the S. take no steps to execute the victims to avoid irreparable damage to them while their cases are pending determination before the Commission. The petitioners also requested that the Commission declare that the S. violated the victims' rights under the Convention and the D., and that they be provided with an effective remedy entailing their release from detention. M., the petitioners requested that the Commission schedule an oral hearing in the case, and conduct an on-site visit to death row at F.H.P., T.B., to investigate the victims' conditions of detention. 5. In this report, the Commission concludes that the petitioners' claims relating to violations of the D. satisfy the requirements of Articles 37 and 38 of the Commission's Regulations and are therefore admissible. The Commission also concludes that the petitioners' claims relating to violations of the Convention are inadmissible. II. PROCEEDINGS BEFORE THE COMMISSION 6. U. receipt of the petition and submissions of the parties, the Commission complied with the requirements of its Regulations. The Commission studied the petition, requested information from the parties, and forwarded the pertinent parts of each party’s submissions to the other party. 7. On January 19, 1999, the Commission forwarded the pertinent parts of the petition to the S. and requested observations within 90 days regarding exhaustion of domestic remedies and the claims raised in the petition. The Commission also requested that the S. stay the victims' executions pending the Commission's investigation of the alleged facts. 8. On January 25, 1999, the petitioners forwarded additional information to the Commission on the issue of timeliness of the petition, and argued that the rules of both the Convention and the D. should apply in this case. The pertinent parts of this information were forwarded to the S. on the same date. 9. Throughout the processing of this case before the Commission, the petitioners have requested that the Commission provide it with time limits as to when the Commission will issue a decision in the matter. On April 27, 1999, the Commission informed the petitioners that pursuant to the Commission’s mandate, it processes cases and issues decisions in accordance with its Regulations and was therefore unable to provide the petitioners with a time limit for its decision in this case. 10. By letter dated J. 30, 1999, the petitioners informed the Commission as follows: “As you are aware, in compliance with the decision of Her Majesty’s Privy Council, T.B. will take its final decision before the five (5) year period has expired. It is therefore essential that we receive a decision by 2 January 2000. As the time is fast approaching I would be extremely grateful if you could inform us of the present position and whether this case has progressed further.” 11. By communication dated August 13, 1999, the petitioners informed the Commission that “[w]e have noted that the Commission has yet to reach a decision regarding this case. In light of this we would like to draw your attention to a ruling of the Judicial C. of the Privy Council in October of 1998 on a C.M. brought by death row prisoner T.F.. It was decided that it was not unconstitutional to execute a person whose petition had been pending before the IACHR for more than 18 months. T.F. and R.W. were hanged on 16 October 1998, even though the IACHR had informed the government of the Bahamas it would issue its decision on both cases within two weeks. We would ask you to recognise our concern in relation to the case of S.a.B., as their petitions have now been under consideration for some time.” The Commission acknowledged receipt of this letter on September 7, 1999. 12. The Commission has not received any response from the S. in respect of the petitioners' petition, despite the Commission's requests for information dated January 19, 1999 and January 25, 1999. III. POSITIONS OF THE PARTIES ON ADMISSIBILITY A. Position of the petitioners a. Claims by the petitioners 13. The petitioners allege violations of Articles 4(1), 4(2), 4(6), 5, 7(5), 8 (1) 8(2), 24 and 25 of the American Convention, and Articles I, II, XVII, XVIII, XI, XXV, and XXVI, of the American D., in connection with the trial, conviction and sentencing of the victims for the crime of murder in T.B.. More particularly, the petitioners argue that the mandatory death sentence imposed by the S. pursuant to its penal law on every person convicted of murder violates the victims' rights to life under Article 4(1) of the Convention and Article I of the D., and their rights to humane treatment under Article 5 of the Convention and Article XXVI of the D.. 14. In addition, the petitioners allege that the S. has violated the victims' rights to apply for amnesty, pardon or commutation of sentence under Article 4(6) of the Convention, their rights to be promptly notified of the charges against them and to be brought promptly before a judge or judicial officer under Article 7 of the Convention, the right to a fair trial under Article 8 of the Convention, and the right to equality before the law under Article 24 of the Convention, together with violations of the corresponding rights under Articles II, XVIII, XXV and XXVI of the D.. 15. With respect to their alleged violations of Articles 4 and 24 of the Convention and the corresponding provisions of the D., the petitioners argue that the domestic law of T.B. does not provide the victims with the right to make representations to the Advisory C. on the Prerogative of Mercy, the body in T.B. with authority to grant amnesties, pardons and commutations of sentences. In addition, the petitioners argue that the absence of a hearing before the Advisory C. or any other procedure regulated by law to enable an objective and proportionate decision on whether the death penalty is an appropriate punishment in the circumstances of the victims' cases violates Articles 4 and 24 of the Convention and Article II of the D.. In this regard, the petitioners also argue that the Advisory C.’s discretion is too broad, arbitrary, and unaccountable to accord with human rights norms, and that it is for the party seeking to deprive the victims of their lives to refute the absence of inequality and discrimination in the operation of its penal law. 16. With respect to the petitioners' alleged violations of Articles 7 and 8 of the Convention and the corresponding provisions of the D., the petitioners claim that the victims were tried approximately 26 months after they were arrested, and therefore were not brought to trial promptly and within a reasonable time and were deprived of a...