Report No. 26 (2007) IACHR. Petition No. 12.399 (Bahamas)

CourtInter-American Comission of Human Rights
Petition Number12.399
Case TypeInadmissibility
Report Number26
Respondent StateBahamas
Alleged VictimDavid Austin Smith

REPORT Nº 26/07




March 9, 2007


1. On June 14, 2001, the Inter-American Commission on Human Rights (hereinafter "the Commission") received a petition from Burton Copeland, solicitors in London, The United Kingdom (hereinafter "the Petitioners") against The Commonwealth of The Bahamas (hereinafter "The Bahamas" or "the State"). The petition was filed on behalf of David Austin Smith a Bahamian citizen who is under sentence of death at the Fox Hill Prison in The Bahamas, following conviction for the murder of Marnie Calloway. Mr. Smith was convicted primarily on the strength of confession evidence.

2. In their petition, the Petitioners have alleged that the State violated Mr. Smith’s rights under Articles I, II, XVIII, and XXVI of the American Declaration on the Rights and Duties of Man (“the American Declaration” or “the Declaration”). More particularly, the Petitioners alleged that these rights were violated by: the imposition of a mandatory death penalty; and the failure to accord Mr. Smith certain due process guarantees during the domestic criminal proceedings against him.

3. To date the State has not presented any arguments on the admissibility or merits of the petition.


4. The Commission, on the basis of the information presented and the due analysis under the American Declaration, declares that the petition is inadmissible pursuant to Article 32, of its Rules of Procedure and that accordingly, the Commission declines to make any findings on the merits of the petition.


5. Mr. Smith's petition was presented to the Commission on June 14, 2001, which was acknowledged by the Commission by letter of June 27, 2001. By note of the same date, the Commission forwarded the pertinent parts of the petition to the State, with a request for a response within two months.

6. In letters dated April 6 and September 14, 2002, the Commission reiterated its request to the State for information on the petition. The Commission also requested that the State take whatever measures it deemed necessary to provide the Commission with the relevant information pertaining to the case within 30 days of receipt.

7. On May 28, 2002, the Commission wrote to both parties informing them that pursuant to Article 37(3) of the Commission’s Rules of Procedure, it had decided to defer the treatment of admissibility until the decision on the merits and requested that the Petitioners submit their additional observations on the merits of the case within a period of two months from the date of the letter.

8. By letter of July 11, 2002, the Petitioners requested an extension of two months to submit additional information, which was granted by the Commission by communication of July 19, 2002. By letter of August 21, 2002, the Petitioners requested a further extension of time to submit additional information. By letter of August 22, 2002, the Commission granted an extension of a month to the Petitioners.

9. By letter of October 6, 2003, the Petitioners provided additional observations, which was acknowledged by the Commission by letter of October 8, 2003. By note of the same date, the Commission transmitted the pertinent parts of these additional observations to the State and requested a response within a month.

10. By letter of May 24, 2004, the Commission asked the Petitioners to indicate whether Mr. Smith was still under sentence of death or whether the sentence had been commuted to a term of life imprisonment. By letter of May 27, 2004, the Petitioners replied, indicating that they would make further inquiries of lawyers who acted for the State in the appellate proceedings before the Judicial Committee of the Privy Council. By letter of July 2, 2004, the Petitioners forwarded a copy of a letter from the said lawyers dated June 23, 2004.


A. Petitioners’ Position

1. Background

11. The Petitioners claim that Mr. Smith, a national of The Bahamas, was tried on two occasions in the Supreme Court of The Bahamas for the murder of Marnie Calloway, (“the deceased”). Ms Calloway was killed on or about August 23, 1994.

12. The Petitioners state that Mr. Smith was first convicted of the murder of the deceased on July 15, 1996, and sentenced to death. An ensuing appeal against conviction was allowed by the Court of Appeal of the Bahamas on January 31, 1997. Mr. Smith was re-tried and subsequently again of murder, and sentenced to a mandatory death sentence on October 28, 1997, pursuant to section 312 of the Penal Code of The Bahamas. Mr. Smith again appealed to the Court of Appeal of the Bahamas, but his appeal was dismissed on October 23, 1998. Mr. Smith’s petition seeking special leave to appeal to the Judicial Committee of the Privy Council was dismissed on May 25, 2000.

2. Petitioners' Position on Admissibility

13. The Petitioners argue that Mr. Smith's petition is admissible because he has exhausted the domestic remedies of The Bahamas. The Petitioners indicate that Mr. Smith appealed his conviction and mandatory death sentence to The Bahamas' Court of Appeal, which dismissed his appeal on October 23, 1998, and that Mr. Smith's application for special leave to appeal to the Privy Council was dismissed by the Court on May 25, 2000. In addition, the Petitioners argue if it is contended by the State that the remedy of a constitutional motion was available to Mr. Smith, he should be excused from exhausting this remedy, because legal aid is not provided by the State to pursue such a motion. Further, the Petitioners contend that it is difficult if not impossible to find a Bahamian lawyer who is willing to prepare and argue a constitutional motion pro bono.

B. State's Position on Admissibility

14. The State has not addressed or presented arguments on the admissibility of the petition.


A. Competence of the Commission

15. The Petitioners have alleged violations of Articles I, II, XI, XVIII, XXV, and XXVI of the Declaration. Article 23 of the Commission's Rules of Procedure provides that:

[a]ny person or group of persons, or non-governmental entity legally recognized in one or more Member States of the OAS, may submit petitions to the Commission, on their own behalf or on behalf of third persons, concerning alleged violations of a human right recognized in, as the case may be, the American Declaration of the Rights and Duties of Man, the American Convention on Human Rights, the Additional Protocol in the Area of Economic, Social and Cultural Rights, the Protocol to Abolish the Death Penalty, the Inter-American Convention to Prevent and Punish Torture, the Inter-American Convention on the forced Disappearance of Persons, and/or the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, in accordance with their respective provisions, the Statute of the Commission, and these Rules of Procedure. The petitioner may designate an attorney or other person to represent him or her before the Commission, either in the petition itself or in another writing.

16. The petition in this case was lodged by the Petitioners on behalf of Mr. Smith who is a national of the State of The Bahamas.

17. The Declaration became the source of legal norms for application by the Commission upon The...

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