|
REPORT Nº 48/01 CASE 12.067, MICHAEL EDWARDS CASE
12.068, OMAR HALL CASE 12.086, BRIAN SCHROETER AND JERONIMO BOWLEG THE BAHAMAS April 4, 2001 I. SUMMARY 1.
This Report concerns three petitions which were presented to the
Inter-American Commission on Human Rights (hereinafter referred to as
“the Commission”) by Messrs. Burton Copeland Cameron McKenna, and
Lovell White Durant, Solicitors from London, United Kingdom, (hereinafter
referred to individually and collectively as “the Petitioners”) on
behalf of Messrs. Michael Edwards, Omar Hall, Brian Schroeter and Jeronimo
Bowleg, (hereinafter referred as the “condemned men”) by letters dated
November 5, 1998, December 3, 1998, and January 7, 1999. The three
petitions allege that the Commonwealth of The Bahamas (hereinafter
referred to as “the State” or “The Bahamas”) violated the human
rights of the condemned men under the American Declaration of the Rights
and Duties of Man (hereinafter referred to as “the Declaration”). 2.
The table below depicts the names of the condemned men, the names
of the Petitioners, the dates on which the Commission opened the cases in
respect of the condemned men, and Articles of the Declaration alleged to
have been violated, and the dates on which the Commission found the cases
to be admissible.
3. In these three cases, the condemned men were tried, convicted, and sentenced to death by hanging by The Bahamas, pursuant to Sections 11 and 312 of its Penal Code.[4] The Petitioners in these cases alleged that the State violated the condemned men’s rights under the American Declaration on one or more of the following grounds, further particulars of which are provided in Part III.A of this Report: a. Violations of Articles I, II, XVII, XVIII, and XXVI of the Declaration respecting their rights to life, equality before the law, to recognition of juridical personality and civil rights, to humane treatment, to a fair trial and to due process of law; relating to the mandatory nature of the death penalty for the crime of murder in The Bahamas, and the procedure for granting amnesty, pardon or commutation of sentence in the State. b. Violations of Articles XVIII, XI, XXV, and XXVI of the Declaration, with respect to their rights to a fair trial and due process of law in relation to both pre-trial and post trial detention. c. Violations of Articles XXV and XXVI of the Declaration, regarding their rights to humane treatment, concerning their conditions of detention. d. Violations of Articles XVIII, and XXVI, with respect to their rights to a fair trial, relating to the adequacy and preparation of their legal representation and the manner in which their criminal proceedings were conducted. e. Violations of Articles XVIII and XXVI, concerning their rights to a fair trial, in respect of the unavailability of legal aid for Constitutional Motions in The Bahamas. 4. The Commission declared that it was competent to examine these three cases, and declared the cases admissible pursuant to Articles 37 and 38 of its Regulations, at its 104th and 106th Regular Sessions respectively. Messrs. Schroeter’s and Bowleg’s case, Nº 12.086, Report Nº 123/99,[5] was declared admissible at the Commission’s 104th Regular Sessions. Mr. Edwards’ case Nº 12.067, Report Nº 24/00,[6] and Mr. Hall’s case Nº 12.068, Report Nº 25/00[7] were declared admissible at the Commission’s 106th Regular Sessions. 5. As a preliminary matter, the Commission decided to consolidate these three cases for the purposes of this Report pursuant to Article 40(2) of the Commission’s Regulations because the cases involve similar facts and substantially the same issues under the Declaration.
The
Commission, on the basis of the information presented, and the due
analysis under the American Declaration, concludes as follows: 1. The State is responsible for violating Articles I, XVIII, XXV, and XXVI of the American Declaration, by sentencing Messrs. Edwards, Hall, Schroeter and Bowleg, to a mandatory death penalty. 2. The State is responsible for violating Messrs. Edwards’, Hall’s, Schroeter’s and Bowleg’s rights under Article XXIV, of the American Declaration, by failing to provide the condemned men with an effective right to petition for amnesty, pardon or commutation of sentence. 3. The State is responsible for violating Messrs. Hall’s, Schroeter’s and Bowleg’s rights under Articles XI, XXV, and XXVI of the American Declaration, because of the inhumane conditions of detention to which the condemned men were subjected. 4. The State is responsible for violating Messrs. Edwards’, Hall’s, Schroeter and Bowleg’s rights under Articles XVIII, and XXVI of the American Declaration, by failing to make legal aid available to the condemned men to pursue Constitutional Motions. 5. The State is responsible for violating Messrs. Schroeter’s and Bowleg’s rights to be tried without undue delay under Article XXV of the Declaration. 6. The Commission finds no violation of Articles XXV and XXVI of the Declaration relating to Mr. Edwards’ claims concerning inhumane conditions of detention, incompetent and ineffective benefit of counsel, and the State’s failure to disclose documents relating to Mr. Edwards’ identification parade, 7. The Commission does not find that the State is in violation of Mr. Hall’s right to an impartial trial pursuant to Article XXVI of the Declaration, relating to unfair media reporting and publicity. 8. The Commission does not find that the State violated Messrs. Schroeter’s and Bowleg’s rights to an impartial trial pursuant to Article XXVI of the Declaration relating to the conduct of their trial, in particular the trial judge’s summing-up to the jury concerning their involuntary confessions. II. PROCEEDINGS BEFORE COMMISSION A. Proceedings in Relation to Michael Edwards, Case 12.067 6. Mr. Edwards’ petition was presented to the Commission on November 5, 1998. Included in Mr. Edwards’ petition was a request for precautionary measures pursuant to Article 29 of the Commission’s Regulations. The Commission opened Case Nº 12.067, on December 10, 1998, and pursuant to Article 34 of its Regulations, the Commission forwarded the pertinent parts of the petition to the State and requested its observations within 90 days with regard to the exhaustion of domestic remedies and the claims raised in the petition. The Commission also requested that the State stay Mr. Edward’s execution pending the Commission's investigation of the alleged facts. 7.
On December 11, 1998, the Commission received the State’s Reply
to the petition which is referred to in Chapter III of this Report. 8. On December 21, 1998, the Commission forwarded the pertinent parts of the State’s Reply to the Petitioners and requested that they provide the Commission with their observations within 30 days. 9. On January 20, 1999, the Commission received a request from the Petitioners for an extension of time to file their response to the State’s observations because the Petitioners stated that they were “still awaiting information from Mr. Edwards regarding the preparation of his defense, namely, that he was deprived of a fair trial, and the prison conditions in which he is currently being held.” On February 5, 1999, the Petitioners responded to the State’s Reply to the petition. In addition, the Petitioners stated that there were practical difficulties in obtaining information with regard to Mr. Edwards’ prison conditions and reserved the right to develop this ground of his petition once relevant information was received. The Petitioners also reiterated their request that the Commission issue precautionary measures in respect of Mr. Edwards. 10. On February 19, 1999, the Commission forwarded the Petitioners’ observations to the State asking that it provide the Commission with information that it deemed relevant to the case within 30 days. On October 19, 1999, the Commission reiterated its request to the State, asking that the State provide it with information with regard to the Petitioners response to the State’s Reply to the petition, within 30 days. 11. The Commission has not received any additional communication or information from the State since its Reply to the petition on December 11, 1998. B.
Proceedings in Relation to Omar Hall, Case 12.068
12. Mr. Hall’s petition was presented to the Commission on December 3, 1998. Included in Mr. Hall’s petition were several requests from the Petitioners. The Petitioners requested that the Commission recommend to the State that it commute Mr. Hall’s death sentence so that he could be removed from the death row regime in Foxhill Prison. The Petitioners also invited the Commission to recommend to the State that it amend its penal code to restrict the death penalty to the most heinous forms of murder and to institute a sentencing hearing in which aggravating or mitigating factors can be examined. In addition, the Petitioners asked the Commission to reach a decision in the case as soon possible and requested that the Commission make the strongest possible representations to the State to stay the execution of Mr. Hall and not to execute him while this matter is pending determination by the Commission. 13. On December 10, 1998, the Commission opened Case Nº 12.068, and forwarded the pertinent parts of the petition to the State and requested its observations within 90 days with regard to the exhaustion of domestic remedies and the claims raised in the petition. The Commission also requested that the State stay Mr. Hall’s execution pending the Commission's investigation of the alleged facts. On October 19, 1999, the Commission reiterated its request to the State for its observations within 30 days with regard to the claims raised in the petition. 14. To date, the Commission has not received any response from the State in respect of the Petitioners' petition, despite the Commission's requests for information dated December 10, 1998, and October 19, 1999. C. Proceedings in Relation to Brian Schroeter and Jeronimo Bowleg,Case 12.08615. Messrs. Schroeter’s and Bowleg’s petitions were presented to the Commission on January 7, 1999. In their petition, the Petitioners requested that the Commission issue Precautionary Measures pursuant to Article 29.2 of its Regulations against the State, and indicated that the Commission should request that the State take no steps to execute Messrs. Schroeter and Bowleg to avoid irreparable damage to them while their cases were pending determination before the Commission. 16. The Petitioners also requested that the Commission declare that the State has violated the rights of Messrs. Schroeter’s and Bowleg’s as established by the American Declaration. In addition, the Petitioners requested that Messrs. Schroeter and Bowleg be provided with an effective remedy entailing their release from detention. Moreover, the Petitioners requested that the Commission schedule an oral hearing in the case, and conduct an on-site visit to death row at Fox Hill Prison, The Bahamas, to investigate Messrs. Schroeter’s and Bowleg’s conditions of detention. 17. Pursuant to Article 40(2) of the Commissions Regulations, the Commission consolidated and processed the petitions as one case, because they dealt with the same facts, issues, and persons. The Commission opened case Nº 12.086, and pursuant to Article 34 of the Commission’s Regulations the Commission forwarded the pertinent parts of the petition to the State on the January 19, 1999, and requested that the State provide it with information within 90 days on the issue of exhaustion of domestic remedies, pursuant to Article 37 of its Regulations, and with information with respect to the claims raised in the petition, and any additional information which would enable the Commission to determine whether the internal legal remedies and procedures have been exhausted. The Commission also requested that the State stay the executions of Messrs. Schroeter and Bowleg pending an investigation by it of the alleged facts. 18. On January 25, 1999 the Petitioners forwarded additional information to Commission on the issue of timeliness of the petition, and argued that the rules of the American Declaration should apply in this case. The pertinent parts of this information were forwarded to the State on the same date. 19. The case file before the Commission does not reflect any responses from the State in respect of the Commission’s communications and the pertinent parts of the petition which were forwarded to the State on January 19, and 25, 1999 respectively. D. Commission’s Decision on Admissibility of the three cases 12.067, 12.068, and 12.086 at 104th and 106th Regular Sessions 20. The Commission declared that it was competent to examine these three cases, and declared the cases admissible pursuant to Articles 37 and 38 of its Regulations, at its 104th and 106th Regular Sessions respectively. Messrs. Schroeter’s and Bowleg’s case, Nº 12.086, Report Nº 123/99,[8] was declared admissible on September 27, 1999, at the Commission’s 104th Regular Sessions. Mr. Edwards’ case Nº 12.067, Report Nº 24/00,[9] and Mr. Hall’s case Nº 12.068, Report Nº 25/00[10] were declared admissible on March 7, 2000, at the Commission’s 106th Regular Sessions.[11] 21. In the Commission’s decisions declaring the cases admissible, the Commission also decided inter alia to place itself at the disposal of the parties concerned with a view to reaching a friendly settlement in the cases, and maintained in effect the precautionary measures issued in the three cases under review. 22. The Commission decided to consolidate these three cases for the purposes of this Report pursuant to Article 40(2) of the Commission’s Regulations because the cases involve similar facts and substantially the same issues under the Declaration. 23. The Commission forwarded a copy of Case Nº 12.086, Report Nº123/99 concerning Messrs. Schroeter and Bowleg to the State and Petitioners on November 30, 1999. On March 10, 2000, the Commission forwarded a copy of Case Nº 12.067, Report Nº 24/00, relating to Mr. Edwards, and Case Nº 12.068, Report Nº 25/00 in respect of Mr. Hall to the State and the Petitioners. 24. Since forwarding the Reports to the State and the Petitioners, the Commission has not received any additional information from either the State or the Petitioners concerning the same. III.
POSITION OF THE PARTIES ON THE MERITS OF THE PETITIONS A.
Michael Edwards’ Claims 1.
Position of the Petitioners 25. The Petitioners claim that Michael Edwards, a national of The Bahamas was charged with the murder of Gerald Cash, (“the deceased”) owner of Lucky Food Store in The Bahamas which occurred on October 20, 1994. The Petitioners indicate that the deceased was shot with a single bullet, and was robbed of $800 in cash. The Petitioners maintain that three store employees, ages 14, 16, and 21, prosecution witnesses, testified that a robbery occurred in the store, during which one or two shots were fired causing the deceased’s death, but no none saw the actual gun being fired. The Petitioners claim that a fourth prosecution witness testified that a robbery had occurred, and stated that during the course of the robbery he was asked to fill a bag with money from the “shop’s till,” but failed to identify the robber at the identification parade. The Petitioners contend that there had been collusion between the witnesses at the identification parade and that it was improperly conducted. 26. The Petitioners report that Mr. Edwards gave sworn testimony and his defense was that of misidentification, he relied on alibi evidence, which was supported by five other witnesses. The Petitioners claim that one of Mr. Edwards’ five witnesses testified that she was in the store when the robbery occurred and that the gunman did not have the appearance of Mr. Edwards. 27.
The Petitioners state that Mr. Edwards was convicted of armed
robbery and murder on May 8, 1996, and a mandatory death sentence was
imposed on him. According to
the Petitioners, Mr. Edwards appealed his convictions and sentence to the
Court of Appeal of The Bahamas, which dismissed his appeal on January 20,
1997. Mr. Edwards then
petitioned the Judicial Committee of the Privy Council (hereinafter
referred to as “the Privy Council”) for Special Leave to Appeal his
convictions and sentence, the Privy Council dismissed his petition on
October 29, 1998. a. Articles I, II, XVIII, and XXVI
of the Declaration - The Mandatory Death Penalty and the Prerogative of
Mercy
i.
The Mandatory Death Penalty 28. The Petitioners allege violations of Articles I, II, XVIII, and XXVI of the Declaration, in connection with the trial, conviction and sentencing of Mr. Edwards for the crime of murder in The Bahamas. More particularly, the Petitioners argue that the mandatory death sentence imposed by the State pursuant to its penal law on every person convicted of murder, and the pardon and commutation regime of the State violate Mr. Edwards’ rights to life, equality before the law, a fair trial, and humane treatment under Articles I, II, XVIII, and XXVI, of the Declaration. 29. The Petitioners contend that the death penalty is mandatory in character, and does not allow for consideration to be taken of the particular circumstances of Mr. Edwards or the offence. The Petitioners also argue that the pardon/commutation procedure is extra-legal in nature for the following reasons, namely, (I) there is no criteria in existence in The Bahamas for the exercise of the discretion of whether to pardon or to execute; (ii) no information is available as to whether such discretion is exercised on the basis of an accurate account of legally admissible evidence; and (iii) there is no right to make either written or oral representations, and no opportunity is provided to respond to any remarks of the trial judge (or anybody else) as to whether the death sentence should be implemented. 30. The Petitioners referred to the legislative history of the death penalty in The Bahamas. The Petitioners state that until July 10, 1973, the Commonwealth of The Bahamas was a British Colony whose penal law consisted of the common law as developed in England and Wales and local penal codes, and that pursuant to the Offences Against the Persons Act of 1861, the penalty for every offence of murder was death. The Petitioners claim that in the United Kingdom, the Homicide Act of 1957 reduced certain killings to manslaughter, and also created a scheme which carefully distinguished between capital and non-capital murders. The Petitioners maintain that the Homicide Act was not extended to the Commonwealth of The Bahamas, although separate provision was made in its Penal Code for the defenses of provocation, diminished responsibility and other forms of manslaughter. The Petitioners state that prior to 1957 no distinction was made between capital and non-capital murder. The Petitioners indicate that this is the position in The Bahamas, and that pursuant to Section 312 of the Penal Code of The Bahamas, an adult murderer is automatically sentenced to death for the offence of murder. 31. The Petitioners claim that although the United Kingdom has now abolished the death penalty for murder, the distinction created by the 1957 Homicide Act between capital and non-capital murder was illustrative of a more general trend in the international sphere towards a recognition that the death penalty – insofar as it is to be maintained at all–should be administered according to criteria which take into account the individual circumstances of each case.
32.
In support of their position, the Petitioners refer to the practice
in other states. They argue, for example, that in the case of Woodson
v. North Carolina[12]
the United States Supreme Court held that the automatic imposition of the
death sentence on all those convicted of a specific offence is
inconsistent with “the evolving standards of decency that are the
hallmark of a maturing society.” The
Petitioners argue that the Supreme Court made it plain that the
application of the mandatory death sentence imposed in all cases of murder
without objective criteria for its application in particular cases after a
fair hearing, was unconstitutional. In
addition, the Petitioners indicate that the Supreme Court held further
that: [i]n
capital cases the fundamental respect for humanity underlying the eight
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.[13] 33.
In addition, the Petitioners contend that the South African
Constitutional Court has gone further and followed the Hungarian
Constitutional Court in declaring the death penalty to be unconstitutional
per se in Decision
23/1990(X.31). Conversely, in the case of Bachan Singh v. The State of
the Punjab, the Supreme Court of India determined that the death
penalty is not unconstitutional per
se,[14]
in part because there was a judicial discretion as to whether it should be
imposed. Based upon these domestic authorities, the Petitioners argue that
states retaining the death penalty must distinguish between capital and
non-capital murder, and must provide due process guarantees and a proper
sentencing procedure for considering whether the death penalty should be
imposed in capital cases. 34.
In this connection, the Petitioners make reference to a 1992
amendment to Jamaica's Offences Against the Person Act 1861, which
distinguishes capital from non- capital murder. Finally, the Petitioners
claim that the law of Belize has introduced judicial discretion in the
application of the death penalty. 35.
The Petitioners claim that Mr. Edwards’ due process rights were
violated and his right not to be subjected to cruel, infamous or unusual
punishment pursuant to Article XXVI of the Declaration for the following
reasons: (i) Mr. Edwards was sentenced to death under a statute which did
not distinguish between different kinds of murder, and he was prevented
from advancing any effective mitigation; (ii). the dehumanizing effect of
being punished for the category of crime rather than the person he is; and
(iii) the capricious and arbitrary nature of the pardon/commutation
procedure, which denies him any meaningful input into the most important
decision that can now be taken about his life.
The Petitioners argue that the imposition of capital punishment may
give rise to a violation of Article XXVI even if the death penalty in
itself does not constitute a violation of that Article. In support of this
contention, the Petitioners rely on the cases of Soering v. United
Kingdom,[15]
Pratt and Morgan v. Attorney-General of Jamaica,[16]
and Guerra v. Baptiste,[17]
which interpreted the equivalent provisions of the European Convention of
Human Rights, the Jamaican Constitution and the Trinidad and Tobago’s
Constitution respectively. 36. The Petitioners claim that Mr. Edwards’ right to equal protection of the law was violated by both the mandatory nature of the death sentence imposed on him and by the arbitrary nature of the pardon/commutation procedure. The Petitioners argue that the mandatory death sentence for the crime of murder in The Bahamas fails to allow any meaningful consideration of Mr. Edwards character and record. Accordingly, the Petitioners contend that Mr. Edwards was denied the right to receive a sentence that reflects his individual circumstances and those of the offence for which he was convicted. The Petitioners claim that Mr. Edwards committed a robbery which went tragically wrong and renders him liable to the same punishment that a sadistic multiple killer, or a calculating contract killer, would receive. The Petitioners maintain that a formal equal penalty for unequally wicked crimes and criminals amounts to substantive inequality, and thus violates Article II of the Declaration. 37. The Petitioners maintain that there is a defect in the clemency procedure because Mr. Edwards has no right to a hearing when the question of mercy or clemency is considered. The Petitioners contend that because there is no information on how a mercy or clemency decision is reached, it is impossible for Mr. Edwards to prove that he has been the victim of unequal treatment, and that the State should not be able to rely on the secrecy of its procedures to assert a non-violation of Article II of the Declaration. The Petitioners maintain that because the discretion to actually implement the sentence is so broad and unaccountable the commutation discretion must be presumed to operate with arbitrary effect. In addition, the Petitioners argue that race, sex, age, wealth, political or personal connections may well influence the commutation decision. Moreover, the Petitioners contend that it is for the party seeking to deprive Mr. Edwards of his life to show absence of inequality and discrimination in the operation of its capital punishment machinery. 38. Finally, the Petitioners argue that for the reasons outlined above, the automatic imposition of a death sentence on Mr. Edwards violates his due process rights and would thereby also violate his right to life under Article I of the Declaration. b.
Prerogative of Mercy 39. The Petitioners claim that the procedures established by the Bahamian Constitution for pardon and mercy do not mitigate the deficiencies of the country’s death penalty regime, but instead give rise to a separate and serious violation. Specifically, the Petitioners maintain that they lack the qualities of legal certainty which violate Article XVIII of the Declaration, in conjunction with the non-discrimination provisions of Article 26 of the Bahamian Constitution.[18] The Petitioners indicate that Article 90 of the Bahamian Constitution grants the Governor-General various powers to pardon offenders, and to remit punishments, but no limitation or criteria for the exercise of those powers is stated, save that it is specified that the powers should be exercised in accordance with the advice of a designated Minister.[19] 40. The Petitioners maintain that even insofar as the rigors of the mandatory death penalty might theoretically be mitigated by the powers of pardon and mercy, these powers are entirely extra-legal and non-enforceable by the courts, and do not give rise to any legal rights. The Petitioners indicate that according to the Privy Council’s decision in Reckley v. Minister of Public Safety (Nº2),[20] under Article 92 of the Constitution of The Bahamas,[21] a condemned man has no right to make representations or attend a hearing when the question of mercy or clemency is being considered, nor a right to see or comment on the trial judge’s written report. The Petitioners state that the Privy Council opined in Reckley Nº 2 that: “Of its very nature, the Minister’s discretion if exercised in favor of the condemned man, will involve a departure from the law. Such a decision is taken as an act of mercy or as it used to be said as an act of grace.” 41. The Petitioners argue that Mr. Edwards has no right to see or comment on the trial judge’s written report, and that there are no public criteria for commutation, nor any procedure for evaluating whether all relevant matters have been considered and irrelevant ones disregarded. The Petitioners contend that there are no effective domestic legal challenges to the deliberations of the Governor-General or Advisory Committee. The Petitioners maintain that Article 26(1) of the Bahamian Constitution renders nugatory any law which is discriminatory either of itself or in its effect. According to the Petitioners Article 2(2) of the Bahamian Constitution further stipulates that “no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority.” The Petitioners contend that discrimination is defined broadly to include differential treatment on the basis of “race, place of origin, political opinions, color or creed.”
42. Moreover, the Petitioners contend that the prohibition on discrimination in Article 26 of the Bahamian Constitution is merely a restatement of a fundamental principle of fairness – namely that decisions which will have adverse effects on citizens should be taken on rational, non-arbitrary grounds. The Petitioners claim that the reason why the prohibition in Article 26(1) of the Constitution of The Bahamas extends beyond deliberate discrimination to measures which have the effect of being discriminatory is because it has been recognized that arbitrary treatment is often hard to prove. According to the Petitioners, in the absence of transparent deliberations and a reasoned decision, there must be a serious risk that Mr. Edwards has been treated in a way that violates the non-discrimination clause of the Bahamian Constitution. 43. Finally, the Petitioners argue that in all these circumstances, Mr. Edwards’ inability to do anything but await passively a decision on his mercy application amounts to a violation of his right to resort to the courts to ensure respect for his legal rights pursuant to Article XVIII of the Declaration. c.
Article XXVI of the Declaration - Right to an Impartial Trial,
Right to Counsel and Procedural Irregularities 44. The Petitioners allege that Mr. Edwards was denied the benefit of effective and competent counsel and that the State failed to disclose documents relating to the conduct of his identification parade. The Petitioners stated they were awaiting further information in relation to these grounds and in due course these grounds would either be amplified or withdrawn. 45. The Petitioners also contend that the State may claim that Mr. Edwards has a remedy under the Constitution of The Bahamas to pursue a Constitutional Motion, however, this remedy cannot be considered either available or effective. The Petitioners argue that Mr. Edwards is unable to pursue a Constitutional Motion in The Bahamas to challenge his mandatory death sentence as being inhuman or degrading punishment or treatment because he is indigent, and the State’s domestic law does not provide private funds nor legal aid to indigent persons to pursue such Motions. The Petitioners claim that his petition to the Commission is being made on a pro bono basis, and that the State’s practice is to refuse legal aid for Constitutional Motions. The Petitioners maintain that the legal complexity of a Constitutional Motion, combined with Mr. Edwards’ relative lack of education, makes it unrealistic and unfair to expect him to present a Constitutional Motion without professional legal assistance. Finally, the Petitioners maintain that it is difficult for Mr. Edwards to find a Bahamian lawyer who is willing to prepare and argue a Constitutional Motion pro bono. 46. In support of their position, the Petitioners rely upon the jurisprudence of the United Nations Human Rights Committee (HRC), in particular its decision in the case of Champagnie, Palmer & Chisolm v. Jamaica,[22] in which the Committee stated as follows: With
respect to the authors’ possibility of filing a Constitutional Motion,
the Committee considers that, in the absence of Legal Aid, a
Constitutional Motion does not constitute an available remedy in the case.
In light of the above, the Committee finds that it is not precluded
by Article 5(2)(b) of the Optional Protocol from considering the
communication.[23]
47. In the original petition dated November 5, 1998, the Petitioners contended that Mr. Edwards’ right to a fair trial pursuant to Article XXVI of the Declaration was violated because he was denied the benefit of effective and competent counsel. In their later submission of February 5, 1999, the Petitioners withdrew this claim. The Petitioners also maintain that Mr. Edwards’ did not have a fair trial pursuant to Article XXVI of the Declaration because the State failed to disclose documents relating to the conduct of his identification parade.
d.
Article XXVI of the Declaration - Right to Humane Treatment 48. The Petitioners claim that the conditions under which Mr. Edward is being detained violate Article XXVI of the Declaration, and that they would amplify this ground or withdraw it in due course. e.
Petitioners’ Response to the State’s Reply to the Petition 49. On February 5, 1999, the Petitioners responded to the State’s Reply to the petition. First, the Petitioners argue in response to the State’s position that Mr. Edwards’ petition to the Privy Council was dismissed on October 30, 1998, the Petitioners reaffirmed that Mr. Edwards’ petition to the Privy Council was heard and dismissed on October 29, 1998, and not October 30, 1998, as suggested by the State. 50. Second, the Petitioners stated that they were withdrawing their allegation of a violation of Mr. Edwards’ right to a fair trial as pursuant to Article XXVI of the Declaration, relating to the incompetence of counsel at trial. Third, with regard to the Petitioners allegation concerning the failure of the State to provide disclosure of documents relating to the conduct of the identification parade in Mr. Edward’s case, the Petitioners indicate that the State used the words “established” and “formal.” The Petitioners invited the State to clarify if there existed any documents of an informal nature. The Petitioners argue that the evidence of DCI Gibson at pp.692-6 of the trial transcript suggests that some documents did exist, and that until this ambiguity is clarified, Mr. Edwards’ is not in a position to develop this part of his petition. 51. In response to the State’s Reply to the petition with regard to the Petitioners’ allegation concerning the violations of the Declaration by the State’s imposition of a mandatory death penalty on Mr. Edwards, the Petitioners claim that the State failed entirely to address the issues raised in Mr. Edwards’ petition before the Commission. The Petitioners claim that the State’s argument addresses the constitutionality of the death penalty under Bahamian law, rather than the violations of the Declaration alleged by Mr. Edwards. The Petitioners maintain that Mr. Edwards has not sought to argue the contrary, but has addressed his petition to the violations of the Declaration. The Petitioners state that they wish to remind the Commission that Mr. Edwards does not claim that the death penalty itself violates the Declaration. The Petitioners also reiterated their argument regarding the violations of the Declaration in relation to imposition of capital punishment. 52. The Petitioners also claim that the State did not present any arguments on Mr. Edwards’ allegation that the existence and operation of the Advisory Committee on the Prerogative of Mercy violates Article II of the Declaration, and that the points raised by Mr. Edwards’ in his petition concerning the same remains unanswered. In addition, the Petitioners contend that the State’s reliance on the dissenting judgment in Woodson v. North Carolina is misplaced. The Petitioners argue that the majority decision in Woodson v. North Carolina has remained good law in the United States for over twenty years and in the absence of compelling arguments, there can be no basis for preferring the minority view over that of the majority. The Petitioners indicate that the State did not make any reasoned arguments in support of its assertion that “the matters considered therein have no relevance having regard to the history and law of The Bahamas.” 53. The Petitioners argue that because the mandatory death penalty was part of Bahamian law at Independence, does not mean that its mandatory nature could not violate the Declaration, and if it did, the Inter-American Commission system would be merely declaratory of existing practice. The Petitioners contend that the Declaration is intended to be normative rather than declaratory, and that it should keep in step with evolving human rights standards elsewhere in the world. The Petitioners maintain that the relevant question remains that specified by the majority in Woodson, namely, whether the mandatory nature of the death penalty in The Bahamas is inconsistent with the “evolving standards of decency that are the hallmark of a maturing society.” The Petitioners also indicate that the State has not provided examples of where mandatory death sentences are imposed, and that the State’s remarks concerning the Advisory Committee do not address any of the points raised by Mr. Edwards in his petition. 54. In their response to the State’s Reply to the petition, the Petitioners stated that they were still awaiting information from Mr. Edwards regarding the prison conditions in which he is being held, and that the Petitioners reserved the right to develop this ground of his petition further once relevant information is received. 2.
Position of the State 55. In its Reply which was received by the Commission on December 11, 1998, the State did not contest the admissibility of the petition, and only addressed the substantive issues relating to the merits of the petition. The State wrote the following:
the
application for special leave to appeal the applicant’s conviction to
the Privy Council was heard and dismissed according to our records on the
30th October, 1998, as opposed to the 29th October.
The other relevant dates referred to in the History are agreed.
The Government does not take issue with the Background or the
Defense Case as stated in paragraph 2. 56.
The following is the State’s Reply to the Petitioners allegation
that Mr. Edwards was denied the benefit of effective and competent counsel
in violation of the Declaration: It
should be pointed out that the allegation that the applicant was ‘denied
effective and competent counsel’ can in no way be supported either by
reference to the record of the proceedings before the Learned Trial Judge
or by Personal reference to the defense counsel in question.
Mr. Malcolm Adderley, the attorney of record is a very senior
lawyer who has served in the past as Justice of the Supreme Court of the
Commonwealth of The Bahamas (in an acting capacity).
He presently serves as a
judicial member of the Industrial Tribunal. That
there was no established procedure in place at the time of this
investigation in the Royal Bahamas Police Force to fill out documents
prior to holding an identification parade.
That practice has now been in place for the past five years.
Therefore at the time of trial there were no formal documents to
disclose to counsel for the defense relative to the conduct of the
identification Parade. 57.
The following is the State’s Reply to the Petitioners argument
concerning the mandatory nature of the death penalty: The
Privy Council having held in Jones
& Others vs. Attorney General Of The Bahamas, 1995 4AER, pg.2 that
the Death Penalty was mandatory and not discretionary.
It is submitted that it cannot be properly stated that the
mandatory Death Sentence is cruel, infamous or unusual punishment and we
further quote from the decision of Mr. Justice Osadebay dismissing the
motion for Constitutional Relief:- The
Plaintiff in his submissions questioned the validity or constitutionality
of the death penalty in The Bahamas, Suffice it to say that that had
already been determined in the decision of Jones & Ors. Vs. The
Attorney General of The Bahamas (1995) 46 West Indian Reports Pg. 8.
It was again raised in Thomas
Reckley Vs. Minister of Immigration & Ors. But without success. The
wording of Article 17 of the Constitution of The Bahamas is similar to
that of section 17 of The Constitution of Jamaica and it states:- 17(1)
No person shall be subjected to torture or inhuman or degrading treatment
or punishment. (2)
Nothing contained in or done under the authority of any law shall be held
to be inconsistent with or in contravention of this Article to the extent
that the law in question authorizes the infliction of any description of
punishment that was lawful in the Bahama Islands immediately before 10th
July, 1973 – (10th July, 1973, being Bahamas Independence
Day.) Their
Lordships are satisfied that the construction of Section 17(2) adopted by
the minority is to be preferred. The purpose of Section 17(2) is to
preserve all descriptions of punishment lawful immediately before
Independence and to prevent them from being attacked under Section 17(1)
as inhuman or degrading forms of punishment or treatment. Thus, as hanging
was the description of punishment for murder provided by Jamaican law
immediately before Independence, the death sentence for murder cannot be
held to be an inhuman description for murder.
(Pratt Vs. A.G. for Jamaica (1993) 3 WLR
995 at page 1010.) Therefore
the penalty of Capital Punishment as it is known is not unconstitutional
in The Bahamas. The definition of capital murder in The Bahamas refers to
specific intention to kill. (Section
11(3) of the Penal Code, Chapter 77). The
applicant here cannot be said, on the facts of this particular case, to
have only had the intention to rob as averred in the Petition as ‘an
armed robbery gone tragically wrong.’
The
applicant went into the establishment in question armed with a firearm and
almost immediately he commenced beating a customer about the head with a
bag containing the said weapon. He
fired the gun within a short distance of the deceased, and therefore
appeared to have no other intention than to cause the kind of harm which
in fact resulted.
58. The State argues the following with regarding the Petitioners’ argument on the Advisory Committee on the Prerogative of Mercy: The
Advisory Committee on the Prerogative of Mercy is a Committee established
by the Supreme Law of The Bahamas, the Constitution, Article 91, and it is
the Privy Council, the final Court of Appeal that has held that applicants
are not permitted to appear or make submissions before the Advisory
Committee and this inability of the applicant so to appear before this
Committee cannot therefore be called into question (GUERRA
and BAPTISTE) 1996
1AC pg. 397. Further,
please be advised that the Constitution makes provision for all Sentences
of Death to be considered by the Advisory Committee on the Prerogative of
Mercy (Articles and S92) and all extenuating circumstances are therefore
considered by this Committee which sometimes does not recommend that the
sentence of the court be carried out. Whilst
the Government agrees that the Supreme Court of the United States ruled
that the North Carolina statute imposing a mandatory death penalty was
unconstitutional, however, the matters considered therein have no
relevance having regard to the history and the law of The Bahamas.
Further see the dissenting judgment by Mr. Justice White with whom
the Chief Justice Mr. Justice Rheinquist agreed: they rejected the
petitioners argument that the death penalty in any circumstances was a
violation of the Eight Amendment. In
the case of Lauriano (Wilfred) vs. Attorney General and Another (1995 47
WIR 74 at page 90) the views of Rheinquist, CJ were reiterated.
Rheinquist, CJ held that he disagreed fundamentally with the view
expressed by Stewart J. He
held that “they were simply mistaken in their view that the history of
mandatory death penalty statutes in the United States revealed that the
practice of sentencing to death all persons convicted of a particular
offence had been rejected as unduly harsh and unusually rigid.” 59. In response to the Petitioners request for precautionary measures pursuant to Article 29 of the Commission’s Regulations, the State indicates the following: Be
respectfully advised that the Government of The Bahamas gives the
undertaking that it will accord to the IACHR “reasonable time,” in
accordance with the IACHR’S own Regulations, in order to consider the
Petition but maintains that it will not allow such reasonable time to
extend to five (5) years from the date of conviction, thereby frustrating
the domestic law as laid down by the Highest Court of the Land, the
Judicial Committee of her Majesty’s Privy Council.
The Government regrets therefore, that unless the final
recommendation of the IACHR be forwarded to reach the Government of The
Bahamas in Nassau within eighteen (18) months of the 4th
November, 1998 and in any event not later than the 4th May,
2000, the Government will be obliged to act in accordance with the laws of
the land. B.
Omar Hall’s Claims 1.
Position of the Petitioners 60. The Petitioners state that Mr. Hall,[24] a national of The Bahamas, was charged with the murder of Dieseul Almanor (“the deceased”) on June 17th, 1994, in New Providence, The Bahamas. The Petitioners report that according to the prosecution, Mr. Hall’s motive for the murder was as part of a joint enterprise to rob the deceased which culminated in his death. The Petitioners maintain that Mr. Hall has alibi evidence, and that the only evidence against him was the confessions of his co-accused which the co-accused claimed had been given after they had been tortured by the police, and evidence of contradictory identification. The Petitioners also state that it is apparent from the co-accused’s voluntary confessions that the main eyewitness was an accomplice and the Jury was not warned of the dangers of his evidence. In addition, the Petitioners claim that there was a lack of forensic evidence linking Mr. Hall to the scene of the crime, that Mr. Hall continues to deny his guilt in relation to the crime, and that Mr. Hall has no past criminal record. 61.
The Petitioners indicate that Mr. Hall was convicted of the murder
on September 2, 1996, and a mandatory death sentence was imposed on him.
According to the Petitioners, Mr. Hall appealed to the Court of
Appeal of The Bahamas against his conviction and sentence, and his appeal
was dismissed by the Court on May 2, 1997, and the judgment was issued on
July 23, 1997. Mr. Hall then petitioned the Judicial Committee of the
Privy Council for Special Leave to Appeal his conviction and sentence, and
the Privy Council dismissed his petition on June 3, 1998. a. Articles I, II, XVIII, and XXVI,
of the Declaration – The Mandatory Death Penalty and the Prerogative of
Mercy i. The Mandatory Death Penalty 62. The Petitioners allege that the State has violated Mr. Hall’s rights under Articles I, II, XVII, XVIII, and XXVI of the Declaration in connection with the trial, conviction and sentencing of Mr. Hall for the crime of murder in The Bahamas. In addition, the Petitioners argue that the mandatory death sentence imposed by the State pursuant to its penal law on every person convicted of murder, and the State’s pardon and commutation procedure, violate Mr. Hall’s rights under Articles I, II, XVII, and XVIII, of the Declaration, and his right to humane treatment under Article XXVI of the Declaration. More particularly, the Petitioners argue that the domestic law of The Bahamas does not provide the condemned men with the right to make representations to the Advisory Committee on the Prerogative of Mercy, the body in The Bahamas with authority to grant amnesties, pardons and commutations of sentences. 63. The Petitioners made arguments similar to those in Mr. Edwards’ case concerning Mr. Hall’s mandatory death sentence, based on the legislative history of the death penalty and the Prerogative of Mercy in The Bahamas, and domestic and international jurisprudence and practice in the imposition and application of the death penalty. For the sake of brevity those arguments are not referred to here, but have been considered by the Commission in the Analysis of the merits of this Report. The Petitioners also requested that the Commission consider the arguments made in the case of Rudolph Baptiste concerning the mandatory nature of the death penalty and the Prerogative of Mercy in support of Mr. Hall’s case. 64. In addition, the Petitioners argue that the American Declaration is a developing instrument reflecting contemporary standards of moral justice and decency. The Petitioners claim that the Declaration shares this quality with other international instruments such as the International Covenant of Civil and Political Rights (“ICCPR”) and the European Convention on Human Rights (“ECHR”), and that the American Declaration should evolve to reflect present day standards of humanity. 65. The Petitioners maintain that Article I of the Declaration does not, of itself, render the death penalty unlawful. The Petitioners claim that commentators have noted that the American Convention is more restrictive of the circumstances where the death penalty can be used than comparable provisions of the ICCPR and the ECHR. The Petitioners argue that there are two reasons why the imposition of the death penalty in Mr. Hall’s case would amount to a violation of Article I. The Petitioners argue first, because the death penalty is not reserved for the most serious offences, and second, the death penalty fails to distinguish between different cases of murder or to ensure that like cases are treated alike and consequently it is arbitrary and can give rise to unjust discrimination. 66. The Petitioners argue that the drafters of the American Declaration, with the abolitionist tendencies of the Hispanic States and the restrictionist tendencies of the United States as a relevant regional background intended the right to life guaranteed by Article I to be subject to the exception of lawful sentences of death only in the most extreme circumstances, where evaluation of the circumstances of the crime and of the offender led to an objective sentencing rationale for the imposition of the ultimate penalty. The Petitioners contend that the subsequent elaboration of the American Convention on Human Rights which makes reference in Article 4 to “serious crimes” confirms this approach, and that seriousness goes beyond mere legal label and clearly requires some categorization or opportunity to make representations as to whether a particular offence of murder should be punished by death. 67. The Petitioners contend that the way in which the death penalty is administered makes deprivation of life arbitrary and contrary to Article I. The Petitioners argue that although Article I contemplates that certain sentences of death are lawful, it does not mean that no sentence of death can be considered arbitrary under Article I or cruel, contrary to Article XXVI. The Petitioners maintain that in Mr. Hall’s case considering the nature of the offense for which he was convicted does not amount to the most extreme form of murder. The Petitioners argue that the Bahamian domestic law is defective in providing no opportunity to restrict the infliction of the death penalty to the most heinous classes of murder and to mitigate in the light of personal circumstances. 68. In addition, the Petitioners argue, that in the absence of a fair procedure, due process is required to decide whether the imposition of a mandatory death sentence is appropriate in a particular case. Moreover, the Petitioners contend that because the system in place in The Bahamas does not allow for a review of the sentence imposed in cases of murder, and based on the majority of the United States Supreme Court in the case of Woodson v. North Carolina, that the imposition of the death sentence on Mr. Hall violates Articles XVII and XVIII of the Declaration. b.
Article XXVI - Right to Humane Treatment, Conditions of Detention 69. The Petitioners claim that since Mr. Hall’s arrest in August of 1996, he has been subjected to inhuman and degrading treatment due to the appalling conditions in which he has been detained. The Petitioners report that Mr. Hall complains that he was sentenced to death and not sentenced to death aggravated by a lengthy period of inhuman and degrading treatment while awaiting execution. The Petitioners contend that this additional suffering inflicted upon Mr. Hall was not authorized by the original sentence, and that it amounts to cruel, infamous or unusual punishment in violation of Article XXVI of the American declaration. The Petitioners claim that the violation of Article XXVI of the Declaration began from the date of the incarceration on death row in August of 1996, and is still continuing. 70. The Petitioners allege that Mr. Hall has been detained in the maximum security unit for condemned men, together with prisoners under sentence of death awaiting execution, since August 1996, and has been incarcerated in such conditions which violate Article XXVI of the Declaration. The Petitioners maintain that during Mr. Hall’s period of incarceration, he has been detained in a cell which has no windows and measures approximately 6ft by 6ft, with nothing more than a mattress and a bucket within the cell. The Petitioners contend that the cell is unbearably hot and airless and that the door to the cell has bars and that there are metal plates across them which prevent air circulating. 71. The Petitioners report that the amount of time that Mr. Hall spends exercising is substantially less than that required to be given under the Bahamian Prison Rules. The Petitioners contend that under Rule 216 of the Bahamian Prison Rules, prisoners should be allowed 1 hour of exercise each day, whereas Mr. Hall is permitted only 10 minutes of exercise four times a week. The Petitioners claim that the 10 minutes a day which Mr. Hall spends exercising is not only in violation of the Bahamian Prison Rules, but is also in breach of Rule 21(1) of the United Nations Standard Minimum Rules for the Treatment of Prisoners which provide that “every prisoner who is not employed in outdoor work should have at least 1 hour of suitable exercise in the open air daily if whether permits.” 72. The Petitioners indicate that a Report made by Her Majesty’s Review Committee in September of 1991, concluded that the prison was an overcrowded, understaffed institution that performs two of its primary functions well: it incapacitates and it punishes. The Petitioners contend that the Committee’s findings included the following: the inmates were confined to their cells for 23 hours a day due to the high number of inmates being supervised by only two prison officers, the lack of patient care was perfunctory at best and that prison officers for the most part lack sensitivity and compassion. 73. The Petitioners maintain that prison officers torment the condemned men with respect to their impending execution, particularly when a date has been set for an execution, and that when no date has been set, the officers make it clear that they are keen for the Government to carry out the sentence imposed on the condemned men to “get rid” of some of them. Finally, the Petitioners contend that Mr. Hall has endured this treatment since August of 1996, for over 2 years and 3 months. The Petitioners argue that these prison conditions have imposed severe stress on Mr. Hall since he has been incarcerated on death row, and that Mr. Hall’s detention constitute cruel infamous or unusual punishment in violation of Article XXVI of the Declaration. c. Article XXVI of the Declaration -
Right to Humane Treatment and To a Fair Trial 74. The Petitioners argue that Mr. Hall has suffered cruel and inhuman treatment and punishment pursuant to Article XXVI of the Declaration, because he has been incarcerated for a total of over 3 years and 9 months. The Petitioners claim that Mr. Hall was incarcerated on remand from the time of his arrest in July 1994, until he was “bailed” in January of 1996. The Petitioners also claim that subsequent to Mr. Hall’s trial in 1996, he has been incarcerated on death row up to the present time. In addition, the Petitioners argue that during the period of his detention and incarceration Mr. Hall has been detained in inhumane conditions of detention as referred to above. 75.
The Petitioners contend that Mr. Hall did not receive a fair trial
pursuant to Article XXVI of the Declaration, because of the imposition of
his mandatory death sentence, and because Mr. Hall suffered prejudice due
to biased reporting in the daily newspapers and television at the time of
his trial. The Petitioners claim that such coverage meant that Mr. Hall
was incapable of receiving a fair trial. d. Articles XVIII and XXVI of the
Declaration - Right to A Fair Trial
76.
The Petitioners argue that for all the reasons referred to
hereinbefore, Mr. Hall did not receive a fair trial pursuant to Articles
XVIII and XXVI, in relation to his mandatory death sentence.
The Petitioners argue that in The Bahamas, there is no provision
for pre-trial legal aid or the opportunity to commission expert reports
before the trial. The
Petitioners claim that many of those accused of murder are poor and cannot
afford to pay for legal representation, and that State funded legal
representation is available at the trial but the remuneration paid for
such representation is small and does not include work done in advance to
prepare a case for trial. The
Petitioners also contend that the lawyers funded by the State are often
inexperienced and that preparation of an adequate defense is therefore not
available to a substantial proportion of those accused of murder who, if
convicted, face a mandatory death sentence.
In addition, the Petitioners argue that the death penalty is
imposed disproportionately on those of low socio-economic status who have
been poorly represented on legal aid. 2.
The Position of the State 77. The State has not provided the Commission with any observations regarding the admissibility or merits of Mr. Hall’s petition, despite the Commission’s communications to the State dated December 10, 1998, and October 19, 1999. C.
Schroeter and Bowleg’s claims 1.
Position of the Petitioners 78. The Petitioners state that Brian Schroeter and Jeronimo Bowleg,[25] nationals of The Bahamas, were charged with the murder of Dieseul Almanor (“the deceased”) on June 17th, 1994, in New Providence, The Bahamas. The Petitioners report that according to the prosecution the condemned men’s motive for the murder was as part of a joint enterprise to rob the deceased which culminated in his death. The Petitioners maintain that both Messrs. Schroeter and Bowleg made statements from the dock claiming that they had alibi evidence to show that they were not in the area at the time of the shooting. Mr. Schroeter stated that his alibi evidence was supported by the affidavit evidence of Teresa Ferguson, a friend of the family, and Clifford Schroeter, his father. 79. The Petitioners report that Messrs. Bowleg’s and Schroeter’s testimony was that they were tortured by the police, and due to the police violence exercised against them, they were forced to sign written statements. Both victims denied making oral statements to the police. 80. In Mr. Schroeter’s case, the Petitioners allege that “the police slammed his head against a desk, punched him in the ear, grabbed him in his stomach and choked him.” In Mr. Bowleg’s case, the Petitioners allege that “a plastic bag was placed over his head, he was hit on his wrist with a bamboo stick and that the police used a vice-like object and pressed his testicles together.” The Petitioners maintain that the condemned men challenged the admissibility of their written statements in court. The Petitioners claim that prior to their arrests, the condemned men were in good health with no injuries, and that subsequent to their arrests the condemned men complained that they had been beaten by CID officers and required hospital treatment. The Petitioners contend that the condemned men made further complaints of their inhumane treatment by police officers in the Magistrates Court on July 19, 1996, which resulted in the Magistrate, Cheryl Albury, directing that that they be taken to hospital. Moreover, the Petitioners claim that in Messrs. Schroeter’s and Bowleg’s case, the State did not hold any identification parades and that the only identification of the condemned men was by means of “dock identification by an alleged accomplice Kenneth Andrews.” 81. The Petitioners stated that the condemned men were convicted of murder on June 17, 1994, and a mandatory death sentence was imposed on them. The Petitioners maintain that on September 4, 1996, Messrs. Schroeter and Bowleg applied to the Court of Appeal of The Bahamas for leave to appeal their convictions and sentences. The Court of Appeal of The Bahamas dismissed their appeals on July 23, 1997, and their death sentences were affirmed. The Petitioners indicate that Messrs. Schroeter and Bowleg appealed their convictions and sentences to the Privy Council on June 3, 1998, which dismissed their appeals. a. Articles I, II, XVIII, and XXVI,
of the Declaration - The Mandatory Death Penalty and the Prerogative of
Mercy i. The Mandatory Death Penalty 82. The Petitioners allege violations of Articles I, II, XVII, XVIII, XI, XXV, and XXVI, of the American Declaration. The Petitioners argue that the mandatory death sentence imposed by the State pursuant to its penal law on every person convicted of murder, violates Messrs. Schroeter’s and Bowleg’s rights to life and to equal protection of the law pursuant to Articles I, and II, of the American Declaration. The Petitioners also argue that based on the facts of Messrs. Schroeter’s and Bowleg’s cases, the mandatory death sentences imposed on them violate their rights not to receive cruel, unusual, inhuman and degrading treatment and punishment pursuant to Article XXVI of the American Declaration, and that the mandatory death sentences imposed on them are disproportionate punishment which cannot be a justification for depriving them of their rights to life. 83. The Petitioners argue that Messrs. Schroeter’s and Bowleg’s due process rights as established by Articles II, XVIII, XXV, and XXVI of the Declaration, namely, the right to apply for amnesty and pardon, the right to liberty, to be promptly notified of the charge or charges and to be brought promptly before a judge or judicial officer, the right to a fair trial, and the right to equality before the law, have been violated by the State. The Petitioners also contend that the domestic law of The Bahamas does not provide Messrs. Schroeter and Bowleg with the right to make representations to the Advisory Committee on the Prerogative of Mercy before the Minister who determines whether the mandatory penalty imposed by law should take its course. 84. The Petitioners made arguments concerning the condemned men’s mandatory death sentences similar to those made in Mr. Edwards’ and Mr. Hall’s cases on the legislative history of the death penalty and the Prerogative of Mercy in The Bahamas, and domestic and international jurisprudence and practice concerning the imposition and application of the death penalty. For the sake of brevity those arguments are not referred to here, but have been considered by the Commission in the analysis of the merits of the condemned men’s claims in this Report. b. Articles XXV and XXVI of the
Declaration - Right of Protection from Arbitrary Arrest, Right to a Fair
Trial and Due Process of Law, and Delay in trial 85. The Petitioners claim that the deceased was killed on June 17, 1994, and Messrs. Schroeter and Bowleg were arrested and committed to stand trial on the same date. The Petitioners maintain that the victims’ trial commenced on August 12, 1996, approximately 26 months after they were arrested. The Petitioners claim that Messrs. Schroeter’s and Bowleg’s rights to protection from arbitrary arrest, fair trial and due process guarantees pursuant to Articles XXV and XXVI of the Declaration were violated, because they were not brought to trial promptly and within a reasonable time, nor did they have a fair trial. 86. The Petitioners argue that the delay in the condemned men’s cases is comparable with the periods of delay in the cases of de Casariego v. Uruguay,[26] Sequeira v Uruguay [27] and Pinkney v Canada[28] which were decided by the United Nations Human Rights Committee (“UNHRC”). The Petitioners claim that in those cases the UNHRC held that the periods of delay violated the protections contained in the United Nations International Covenant on Civil and Political Rights. The Petitioners argue that in the case of Pratt and Morgan v Attorney General of Jamaica, the Privy Council held that “the State bears the responsibility of organizing its criminal justice system so that such periods of delay do not occur.” The Petitioners contend that in the case of Andre Fillastre v Bolivia,[29] the UNHRC in deciding whether the trial in question was held within a reasonable time opined that:
87.
The Committee stated that in assessing whether the period of delay
was reasonable, that it is relevant to consider the effect of the delay on
the fairness of their trial. The Petitioners claim that in this case the evidence of
identification was weak to begin with and the delay could only have served
to increase the likelihood of error.
The Petitioners contend the delay in bringing Messrs. Schroeter and
Bowleg to trial was unreasonable in the circumstances and it is not
compatible with Article XXVI of the Declaration.
In addition, the Petitioners argue that Article XXV of the
Declaration has been violated in respect of the condemned men because they
were entitled to trial within a reasonable time and without undue delay.
The Petitioners maintain that the conditions of confinement of the
condemned men should be taken into account in assessing whether or not
these Articles have been violated by the State Party. c. Article XXVI of the Declaration -
Right to a Fair trial, Right to Humane Treatment and Pre-Trial Detention 88. The Petitioners claim that the condemned men did not have a fair trial pursuant to Article XXVI of the Declaration. The Petitioners claim that in Messrs. Schroeter’s and Bowleg’s cases, the State did not hold any identification parades prior to trial and that the only identification of the condemned men were by means of “dock identification by a witness Kenneth Andrews during their trial.” The Petitioners argue that the identification evidence was inconsistent, unsatisfactory and should not have been presented to the jury. The Petitioners allege that the condemned men’s alleged confessions to the police implicated the witness, Kenneth Andrews who made the dock identification. 89. The Petitioners state that Messrs. Schroeter and Bowleg described the presence and role of Mr. Andrews in the commission of the crime, and the condemned men’s claim that it was Mr. Andrews who supplied the shotgun, and entered the premises at the time of the shooting. The Petitioners contend that Mr. Andrews also stated that the four of them left the premises together after the shooting. The Petitioners argue that the trial judge failed to warn the jury of the dangers of relying upon the evidence of the witness if they concluded that he was an accomplice, and that the jury should consider Mr. Andrew’s evidence with caution. 90. In addition, the Petitioners maintain that both Messrs. Schroeter and Bowleg made statements from the dock claiming that they had alibi evidence to show that they were not in the area at the time of the shooting. Mr. Schroeter stated that his alibi evidence was supported by the affidavit evidence of Teresa Ferguson, a friend of the family, and Clifford Schroeter, his father. 91. Moreover, the Petitioners claim that Messrs. Schroeter’s and Bowleg’s arrests and confessions were procured from them as a result of police violence and that they were both forced to sign confessions. In Mr. Schroeter’s case the Petitioners argue that “the police slammed his head against a desk, punched him in the ear, grabbed him in his stomach and choked him.” In Mr. Bowleg’s case, the Petitioners contend that “a plastic bag was placed over his head, he was hit on his wrist with a bamboo stick and that the police used a vice-like object and pressed his testicles together.” 92. The Petitioners contend that one of the grounds of Messrs. Schroeter’s and Bowleg’s appeal to the Court of Appeal of The Bahamas, challenged the admissibility of the condemned men’s written statements on the basis that the condemned men were in pain when they made their statements to the police. According to the Petitioners, the trial judge held that although the condemned men were in some degree of pain when they made their statements to the police, however, he was satisfied beyond a doubt that such pain did not influence Messrs. Schroeter and Bowleg from making their statements voluntarily. The Petitioners indicate that they are not requesting that the Commission review the judge’s final finding as to the admissibility of the written statement, but rather to determine whether the condemned men’s rights were violated under the Declaration as a consequence of their treatment on arrest. 93. The Petitioners maintain that Messrs. Schoreter and Bowleg challenged the admissibility of their written statements. The Petitioners claim that prior to Messrs. Schroeter’s and Bowleg’s arrests both were in good health with no injuries, and that subsequent to their arrests the condemned men complained that they had been beaten by CID officers and required hospital treatment. 94. The Petitioners contend that the Messrs. Schroeter and Bowleg made further complaints of their inhumane treatment by police officers in the Magistrates Court on July 19, 1996, which resulted in the Magistrate, Cheryl Albury, directing that that they be taken to hospital. The Petitioners report that Messrs. Schroeter and Bowleg received treatment for injuries sustained whilst in police custody at the Accident and Emergency Department of the Princess Margaret Hospital. The Petitioners inform that the Casualty sheets containing the treating doctors notes in respect of the condemned men had been “inadvertently misplaced” and what remained were summarized notes in the Hospital’s Accident and Emergency Ledger. 95. The Petitioners claim that at trial the medical evidence was not given by the treating doctor because he was “unavailable” but by a colleague based on a summarized note. The Petitioners indicate that the police witnesses at trial could not explain how the condemned men sustained their injuries, because they had not seen Messrs. Schroeter and Bowleg injure themselves or suffer any accident. The Petitioners argue that the nature of the medical evidence and the failure of the Crown to explain the injuries raised at least the possibility that the confessions were obtained by oppression. The Petitioners contend that in such circumstances the oral and written confessions attributed to Messrs. Schroeter and Bowleg should have been excluded from evidence. 96. The Petitioners also maintain that Messrs. Schroeter and Bowleg did not have a fair trial as provided by Article XXVI because of irregularities which occurred during the trial, which created a real risk of prejudice to the condemned men’s cases. The Petitioners allege that during the trial judge’s summing-up to the jury, the trial judge indicated that he disbelieved the condemned men’s testimony as to what transpired while they were detained by police officers. The Petitioners argue the trial judge should not have informed the jury that he ruled on voir dire that the confessions obtained by the police during Messrs. Schroeter’s and Bowleg’s detention, were admissible. The Petitioners argue that the trial judge informed the jury of his ruling, and by doing so affected the credibility of the condemned men, because in effect, the judge implied that he believed the testimony of the two police officers that Messrs. Schroeter’s and Bowleg’s confessions were obtained voluntarily, and were not obtained through the use of violence by the police officers. In support of their argument the Petitioners cite the following statement from the judge’s summing-up to the jury: Just
to give my ruling in the matter, and my decision has been arrived at after
considering all the evidence adduced, the arguments raised, including the
comments regarding alleged omissions and the detention forms and the
absence of medical reports. And
my conclusion is that I would allow the evidence to go forward.[30] 97. The Petitioners argue that the judge’s inescapable implications to the jury that he disbelieved Messrs. Schroeter and Bowleg deprived them of their right to a hearing by a competent, independent and impartial tribunal. The Petitioners contend that the functioning of an institution is more significant than its title, and as the United Nations Human Rights Committee has stated “impartiality of the Court implies that judges must not harbor preconceptions about the matter put before them, and that they must not act in ways that promote the interests of the parties.”[31] The Petitioners also argue that in a death penalty case, any breach of procedural safeguard in Article XXVI of the Declaration also violate the victims’ right to life under Article I of the Declaration. 98. The Petitioners contend that the Untied Nations Human Rights Committee’s jurisprudence regarding the death penalty is usually focused on the fairness of judicial proceedings from which a death sentence has resulted. The Petitioners maintain that in many Optional Protocol cases, the Committee has found a breach of Article 6(2) of the ICCPR where a death sentence has been imposed after a trial which did not satisfy the minimum guarantees for a fair trial found in Article 14 of the ICCPR. The Petitioners cited the cases of Pratt and Morgan v Jamaica,[32] and Reid and Jamaica.[33] The Petitioners maintain that in Pratt and Morgan v. Jamaica, when making reference to the provisions of Article 14 and Article 6 of the ICCPR the Committee stated that: “The procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defense, and the right to review by a higher tribunal.” 99. The Petitioners indicate that in Reid v. Jamaica the Human Rights Committee when referring to general comment 6(16) opined that: The
Committee is of the opinion that the imposition of a sentence of death
upon the conclusion of a trial in which the provisions of the Covenant
have not been respected constitutes, if no further appeal against the
sentence is available, a violation of Article 6 of the Covenant.
As the Committee noted in its General Comment 6 (16), the provision
of a sentence of death may be imposed only in accordance with the law and
not contrary to the provisions of the Covenant implies that the procedural
guarantees therein prescribed must be observed, including the right to a
fair hearing by an independent tribunal, the presumption of innocence, the
minimum guarantees for the defense, and the right to review by a higher
tribunal. In
the present case, since the final sentence of death was passed without
having met the requirements for a fair trial set forth in Article 14, it
must be concluded that the right protected by Article 6 of the Covenant
has been violated. 100. Moreover, the Petitioners argue that the Prosecutor’s case at trial was based on a false legal basis on which the prosecution had invited a conviction and the trial judge directed the jury, and that there was an absence of any proper direction on the mental state necessary to convict a secondary party of murder. The Petitioners maintain that the prosecutor did not cross examine the witnesses on the issue of whether they knew that Mr. Hall’s gun was loaded and whether they knew or foresaw that Mr. Hall might use the gun to kill or cause serious injury in furtherance of a joint enterprise to rob. The Petitioners argue that the jury had no evidence whatsoever which might have enabled them to resolve these issues one way or the other. d.
Articles II, XVII, and XXVI of the Declaration - Right to Fair
Trial and Access to the Courts 101. The Petitioners contend that the State may claim that Messrs. Schroeter and Bowleg have a remedy under the Constitution of The Bahamas to pursue a Constitutional Motion, however, this remedy cannot be considered either available or effective. The Petitioners argue that the condemned men are unable to pursue a Constitutional Motion in The Bahamas to challenge their mandatory death sentences as being inhuman or degrading punishment or treatment because they are indigent, and the State’s domestic law does not provide private funds nor legal aid to indigent persons to pursue such Motions. The Petitioners claim that their petitions to the Commission is being made on a pro bono basis, and that the State’s practice is to refuse legal aid for Constitutional Motions. The Petitioners maintain that the legal complexity of a Constitutional Motion, combined with condemned men’s relative lack of education, makes it unrealistic and unfair to expect them to present a Constitutional Motion without professional legal assistance. Finally, the Petitioners maintain that it is difficult for the condemned men to find a Bahamian lawyer who is willing to prepare and argue a Constitutional Motion pro bono. 102. In support of their position, the Petitioners rely upon jurisprudence of the United Nations Human Rights Committee (HRC), in particular its decision in the case of Champagnie, Palmer & Chisolm v. Jamaica,[34] in which the Committee stated as follows: With
respect to the authors’ possibility of filing a Constitutional Motion,
the Committee considers that, in the absence of Legal Aid, a
Constitutional Motion does not constitute an available remedy in the case.
In light of the above, the Committee finds that it is not precluded
by Article 5(2)(b) of the Optional Protocol from considering the
communication.[35]
103. In addition, the Petitioners argue that the condemned men are being denied an effective remedy, the right to be treated equally before the law, and the right of access to the courts to seek redress for the violation of their fundamental rights pursuant to Articles II, XVII, and XXVI of the Declaration. In support of their contention the Petitioners rely on the European Court of Human Rights cases of Golder v UK, Airey v. Ireland,[36] and the case of Currie v. Jamaica[37] decided by the United Nations Human Rights Committee.
e.
Articles XI, XXV, and XXVI of the Declaration - Right To The
Preservation Of Health And To Well-Being, Right To Humane Treatment, and
Conditions Of Detention 104. In addition, the Petitioners claim that Messrs. Schroeter’s and Bowleg’s rights to humane treatment pursuant to Article XXVI of the American Declaration have been violated by the State because of their treatment and the conditions under which they are being detained on death row in The Bahamas, which renders the implementation of their death sentences unlawful. The Petitioners contend that the condemned men are being confined in solitary confinement in prison under conditions which the UNHRC held were violative of Articles 7 and 10(1) of the ICCPR in the cases of Ambrosis v Uruguay,[38] Carballa v. Uruguay,[39] and Antonaccio v Uruguay.[40] The UNHRC found in these cases that detention in solitary confinement for three months and denial of medical treatment constituted a violation of the ICCPR. 105. In the case of Pinto v Trinidad and Tobago[41] the UNHRC reaffirmed that the obligation under Article 10(1) of the ICCPR encompasses the provision of adequate medical care during detention. In Estrella v. Uruguay, the Committee found that the systematic way in which detainees had been treated constituted a practice of inhuman treatment. In the case of Clyde Neptune v Trinidad v Tobago, the UNHRC held that the sharing of a cell by the applicant with 6 to 9 other inmates with only three beds, and without adequate natural light, inedible food, and the applicant only permitted to exercise half an hour once every two to three weeks, violated the ICCPR.[42] In addition, the Petitioners contend that the State has violated Rules 8, 9(1), 10, 11, 12, 13, 14, 15, 16, 19, 20(1), 21(1), 22(1), 22(2), 22(3), 24, 25 (1), 25(2), 26(1), 26(2), 35(1), 36(1)(2)(3)(4),57, 71(2)(3) and 77 of the United Nations Standard Minimum Rules for the Treatment of Prisoners, in respect of the condemned men. 2.
Position of the State
106. The State has not provided observations regarding the issues of admissibility and merits of Messrs. Schroeter’s and Bowleg’s petitions, despite the Commission’s communications to it dated January 19 and 25, 1999.
[ Table of Contents | Previous | Next ] [1]
Annual Report of the Inter-American Commission on Human Rights 1999,
Volume I, p. 117, OEA/Ser.L/V/II.106, April 13, 2000. [2]
Id. Annual Report, of the Inter-American Commission on Human Rights 1999
p. 184. [3]
Id. Annual Report of the Inter-American Commission on Human Rights 1999
p. 190. [4]
The Statute Law of The Bahamas, Revised Edition 1987, Prepared under the
authority of The Law Reform and Revision Act 1975, Chapter 77, p. 1124. Section
11(3) provides: “If a person does and act of such a kind or in such a
manner as that, if he used reasonable caution and observation, it would
appear to him that the act would probably cause or contribute to cause
an event, or that there would be great risk of the act causing or
contributing to cause an event, he shall be presumed to have intended to
cause that event, until it is shown that he believed that the act would
probably not cause or contribute to cause the event.” Section
311 provides: “Whoever intentionally causes the death of another
person by any unlawful harm is guilty of murder, unless his crime is
reduced to manslaughter by reason of such extreme provocation, or other
matter of partial excuse, as in this Title hereafter mentioned.” Section
312 provides: “Whoever commits murder shall be liable to suffer death: Provided
that the sentence of death shall not be pronounced on or recorded
against a person who, in the opinion of the court, was at the time when
the murder was committed under eighteen years of age; but, in lieu of
such punishment, the court shall sentence such person to be detained
during Her Majesty’s pleasure, and, if so sentenced, he shall,
notwithstanding anything in the other provisions of this Code or the
provisions of any other Act, be liable to be detained in such place and
under such conditions as the Governor-General may direct, and whilst so
detained shall be deemed to be in legal custody.” [5]
Annual Report of the Inter-American Commission on Human Rights 1999 p.
190 [6]
Annual report of the Inter-American Commission on Human Rights 1999,
Volume I, p. 117. [7]
Annual Report, of the Inter-American Commission on Human Rights 1999 p.
184. [8]
Annual Report of the Inter-American Commission on Human Rights 1999 p.
190. [9]
Annual Report of the Inter-American Commission on Human Rights 1999,
Volume I, p. 117. [10]
Annual Report, of the Inter-American Commission on Human Rights 1999 p.
184. [11]
The details of the proceedings before the Commission can be found in the
Reports referred to and pages cited in the Commission’s 1999 Annual
Report. [12]
Woodson v. North Carolina, 49 L Ed 2d 944(1976). [13]
Id., at 961. [14]
Bachan Singh v. the State of the Punjab, (1980) 2 SCC 684). [15]
11 EHRR 439. [16]
2 AC 1, (1994). [17]
1 AC 397 (1996). [18]
Article 26(1) of the Constitution of The Bahamas provides: Subject to
the provisions of paragraphs (4)(5) and (9) of this Article, no law
shall make any provision which is discriminatory either of itself or in
its effect. Article
26(2) states: Subject to the provisions of paragraphs (6)(9) and (10) of
this Article, no person shall be treated in a discriminatory manner by
any person acting by virtue of any written law or in the performance of
the functions of any public office or any public authority. Article
26(3) provides: In this Article, the expression “discriminatory”
means affording different treatment to different persons attributable
wholly or mainly to their respective descriptions by race, place of
origin, political opinions, colour or creed whereby persons of another
such description are subjected to disabilities or restrictions to which
persons of another such description are not made subject or accorded
privileges or advantages which are not accorded to persons of another
such description. [19]
Article 90(1) of the Constitution of The Bahamas provides that the
Governor-General may, in Her Majesty’s name and on Her Majesty’s
behalf – (a)
grant to any person convicted of any offence against the law of
The Bahamas a pardon, either free or subject to lawful conditions; (b)
grant to any person a respite, either indefinite or for a
specified period, from the execution of any punishment imposed on that
person for such an offence; (c)
substitute a less severe form of punishment for that imposed by
any sentence for such an offence; or (d)
remit the whole or any part of any sentence passed for such
offence or any penalty or forfeiture otherwise due to Her Majesty on
account of such an offence. (e)
Article 90(2) provides that the powers of the Governor-General
under paragraph (1) of this Article shall be exercised by him in
accordance with the advice of the Prime Minister. [20]
2 WLR 281(1996). [21]
Article 92 of the Constitution of The Bahamas provides: (1)
Where an offender has been sentenced to death by any court for an
offence under the law of The Bahamas, the Minister shall cause a written
report of the case from the trial Justice of the Supreme Court, together
with such other information derived from the record of the case or
elsewhere as the Minister may require to be taken into consideration at
a meeting of the Advisory Committee. (2)
The Minister may consult with the Advisory Committee before
tendering any advice to the Governor-General under paragraph (2) of
Article 90 of this Constitution in any case not falling within paragraph
(1) of this Article. (3)
The Minister shall not be obliged in any case to act in
accordance with the advice of the Advisory Committee. (4)
The Advisory Committee may regulate its own procedure. (5)
In this Article “the Minister” means the Minister referred to
in paragraph (2) of Article 90 of this Constitution. [22]
U.N.H.R.C., Champagnie, Palmer & Chisolm v. Jamaica,
Communication Nº 445/1991. [23]
Article 5(2) of the United Nations Optional Protocol provides: “The
Committee shall not consider any communication from an individual unless
it has ascertained that: (b) The individual has exhausted all available
domestic remedies. This
shall not be the rule where the application of the remedies is
unreasonably prolonged." [24]
Co-defendant with Brian Schroeter and Jeronimo Bowleg at trial. [25]
Co-defendants with Omar Hall at trial. [26]
Doc. A/36/40 pg. 185. [27]
Doc. A/45/40 pg. 127. [28]
Doc. A/3/740 pg. 101. [29]
Communication Nº 336/1988. [30]
Trial transcript p 872. [31]
Karttene v. Finland (387/1989) at para 7.2.) [32]
Nº210/1986.225/1987. [33]
Nº 240/1987. [34]
U.N.H.R.C., Champagnie, Palmer & Chisolm v. Jamaica,
Communication Nº 445/1991. [35]
Article 5(2) of the United Nations Optional Protocol provides: “The
Committee shall not consider any communication from an individual unless
it has ascertained that: (b) The individual has exhausted all available
domestic remedies. This
shall not be the rule where the application of the remedies is
unreasonably prolonged." [36]
(1975) 1 EHRR 524. [37]
(1979) 2 EHRR 305. [38]
Doc. A/37/40. [39]
Doc. A/36/40. [40]
Doc. A/37/40. [41]
Doc. A/45/140 [42] Communication Nº 523/1992. |