Report No. 79 (2007) IACHR. Case No. 12.513 (Bahamas)

• Court: Inter-American Comission of Human Rights
• Year: 2007
• Report Number: 79
• Case Number: 12.513
• Case Type: Merits
• Respondent State: Bahamas
• Alleged Victim: Prince Pinder, Bahamas

REPORT Nº 79/07 CASE 12.513 MERITS (PUBLICATION) PRINCE PINDER COMMONWEALTH OF THE BAHAMAS October 15, 2007 I. SUMMARY 1. On J. 15, 2003, the Inter- American Commission on Human Rights (“the Commission”) received a petition dated J. 14, 2003, from Dr. Adela Williams, solicitor, of Arnold and Porter, in London, United Kingdom (“the P.”), against the Commonwealth of T.B. (“The Bahamas” or “the S.”). The petition was presented on behalf of Mr. P.P., a B. national incarcerated in T.B.. According to the petition, on J. 28, 1997 Mr. P. was convicted of two counts of armed robbery and one count of attempted armed robbery, contrary to the sections 360 (2) and 86 (2) of the Penal Code of The Bahamas and sentenced to a term of 30 years imprisonment. Mr. P. was also sentenced to flogging of six strokes to be inflicted in two installments of three strokes each, as authorized by the Criminal Law (Measures) Act 1991 of T.B.. The petition also requested the Commission to grant precautionary measures in favor of Mr. P. to suspend the execution of sentence while the petition is pending. 2. The petition alleged that the imposition and/or execution of a flogging sentence violates A. I, XI, XVIII, XXV and XXVI of the American D. of the Rights and Duties of Man (“the American D.” or “the D.”). M., the P. asserts that the overall delay in the criminal process and in anticipation of the flogging further violates Article XXVI of the D.. 3. By note of February 04, 2003, the Commission requested the S. to take precautionary measures pursuant to Article 25 of the Commission’s Rules of Procedure to suspend the imposition of M.P.’s flogging sentence pending the Commission’s investigation of the claims raised by the petition. 4. The Commission has not received any response from the S. to its requests for information with respect to the petition. 5. In Report 49/05, adopted on October 12, 2005 during its 123rd regular period of sessions, the Commission decided to admit the petition and to continue with the analysis of the merits of this case. As set forth in the present Report, having examined the information and arguments concerning the merits of the petition, and in the absence of any observations from the S., the Commission has concluded that the S., by authorizing and imposing a sentence of judicial corporal punishment on Mr. P., is responsible for violating M.P.’s rights under A. I, XXV, and XXVI of the American D.. 6. B. upon these conclusions, the Commission recommends to the S. that it: a) grant P.P. an effective remedy, which includes (a) commutation of the sentence of judicial corporal punishment and (b) rehabilitation; b) adopt such legislative or other measures as may be necessary to abolish judicial corporal punishment as authorized by its Criminal Law (Measures) Act 1991; II. PROCEEDINGS SUBSEQUENT TO ADMISSIBILITY REPORT 49/05 7. In Report 49/05 adopted during its 123rd regular period of sessions on October 12, 2005, the Commission decided to admit the petition with respect to A. I, XI, XVIII, XXV and XXVI of the American D. and to continue with the analysis of the merits of his case. 8. By communications of November 01, 2005, Report 49/05 was transmitted to the S. and to the P., in accordance with Article 38(1) of the Commission’s Rules of Procedure. The Commission requested that the P.s provide any additional observations that they may have on the merits of the case within a period of two months. Pursuant to Article 38(2) of its Rules, the Commission also placed itself at the disposal of the parties concerned with a view to reaching a friendly settlement of the matter and requested that the parties inform the Commission expeditiously whether they were interested in pursuing a friendly settlement of the case. Up to the date of this report, the Commission had received no responses from the parties to these communications. III. POSITIONS OF THE PARTIES A. The P. 9. According to the information submitted by the P., M.P. was convicted by the Supreme Court of T.B. on J. 28, 1997 of two counts of armed robbery and one count of attempted armed robbery and sentenced to 30 years imprisonment. A., M.P. was sentenced to a flogging of six strokes to be administered in two installments of three strokes each pursuant to the Criminal Law (Measures) Act 1991 of T.B.. His subsequent appeals against this sentence were dismissed by the Court of Appeal of T.B. and the Judicial Committee of the P.C. on J. 29, 1999 and J. 15, 2002, respectively. 10. According to the P., the Criminal Law (Measures) Act of The Bahamas provides, inter alia: Section 3. (1) S. to the provisions of this Act, any offender on being convicted by a court of any of the offences mentioned in the F.S. may be ordered by the court to undergo corporal punishment in addition to any other punishment to which the offender is liable. Section 4. (1) W. an offender is sentenced to undergo corporal punishment, such punishment shall be inflicted privately either by flogging or whipping in accordance with the provisions of this section. Section 4 (2) Flogging shall be administered with a cat or rod of a pattern approved by the Governor-General and, when with a cat, on the back of the offender and when with a rod, on his buttocks, and in either case only after an examination by and in the presence of a medical officer. Section 5. (1) A sentence of corporal punishment shall specify the number of strokes which shall be administered, which in the case of flogging shall not exceed twenty-four and in the case of whipping twelve, and shall specify whether the prisoner shall receive the whole sentence at one time or by installments, and in the case of installments, the number of strokes at each installment. Section 5 (2) The maximum number of strokes which may be administered at any one time shall be twelve in the case of a flogging and six in the case of a whipping and no person who has been flogged or whipped shall be again flogged or whipped within fourteen days. 11. With respect to the merits of the complaint, the P. contends that the S.’s laws permitting the infliction of judicial corporal punishment represent a breach of the S.’s obligations under the American D.; and further, that the infliction of such a punishment upon Mr. P. would unquestionably do so. The P. contends that the S. is in violation of A. I, XI, XVIII, XXV, and XXVI of the D., as particularized hereunder: a) The sentence of flogging constitutes cruel, infamous or unusual punishment and a violation of the security of the person, in breach of A. XXVI, XXV, XI and I of the D.. In support of this contention, the P. notes that all of the judges of the B. Court of Appeal and the Judicial Committee of the P.C. identified flogging as inhuman and degrading. The P. also submits that during the hearing before the Judicial Committee of the P.C., the S. had conceded that flogging is “torture or inhuman punishment”. b) In violation of Article XXVI, M.P. has been exposed to cruel, infamous or unusual punishment, by virtue of the overall delay in the criminal process of almost 5½ years (between his conviction and the presentation of the petition). In this respect, the P. argues that the sentence of flogging has been aggravated by the mental agony of anticipating its infliction over this protracted period. c) The sentencing judge violated M.P.’s rights under A. XVIII and XXVI of the D. by: (a) failing to inform Mr. P. he was considering the sentence of corporal punishment, or to give M.P. the opportunity to make submissions against such sentence; (b) failure to make any inquiries about M.P.’s character or antecedents, thus denying him an “individualized sentencing”. 12. According to the P.’s communication to the Commission of February 04, 2003, up to that time, the sentence of flogging had not yet been executed upon M.P.. To date, the P. has not responded to the Commission’s later query of J. 14, 2004, inquiring as to whether the flogging had yet been inflicted. B. Position of the S. 13. Apart from acknowledging the Commission’s notes of February 04, 2003, and May 30, 2003, the Commission has not received any information or observations from the S. in response to Mr. P.’s petition. IV. ANALYSIS A. Preliminary considerations 14. The Commission notes that the S. has not disputed the P.’s allegations regarding the judicial proceedings culminating in the dismissal of M.P.’s special leave to appeal to the Judicial Committee of the P.C. of J. 15, 2002. In this respect, the Commission has received no information or observations from the S. with respect to the P.’s petition, despite repeated requests. A., the Commission invokes Article 39 of its Rules of Procedure, which provides that: The facts reported in the petition whose pertinent parts have been transmitted to the Government in reference shall be presumed to be true if, during the time period set by the Commission, the Government has not provided the pertinent information requested, as long as other evidence does not lead to a different conclusion. 15. While the Commission acknowledges that the S. is not a party to the American Convention on Human Rights, the Commission is authorized under Article 20(b) of its Statute “ .to address the government of any member state not a Party to the Convention for information deemed pertinent by this Commission, and to make recommendations to it, when it finds this appropriate, in order to bring about more effective observance of fundamental human rights”. 16. The Commission also considers that the information requested is information that would enable it to reach a decision in a case submitted to it. The Inter-American Court of Human Rights has indicated that cooperation by the S.s is an...