...continued

 

IV.          ANALYSIS

 

A.          Standard of review

 

107.          The Commission will analyze the merits of Messrs. Edwards,’ Hall’s, Shroeter’s and Bowleg’s petitions pursuant to the provisions of the Articles of the American Declaration[43] because The Bahamas is not a party to the American Convention. In addressing the allegations raised by the Petitioners' representatives in these cases, including their claims that the condemned men’s mandatory death sentences violate Article I of the American Declaration, the Commission first wishes to clarify that in interpreting and applying the Declaration, it is necessary to consider its provisions in the context of the international and Inter-American human rights systems more broadly, in the light of developments in the field of international human rights law since the Declaration was first composed and with due regard to other relevant rules of international law applicable to Member States against which complaints of violations of the Declaration are properly lodged.[44] The Inter-American Court of Human Rights recently reiterated its endorsement of an evolutive interpretation of international human rights instruments, which takes into account developments in the corpus juris gentium of international human rights law over time and in present-day conditions.[45]

 

108.          Developments in the corpus of international human rights law relevant to interpreting and applying the American Declaration may in turn be drawn from the provisions of other prevailing international and regional human rights instruments. This includes in particular the American Convention on Human Rights which, in many instances, may be considered to represent an authoritative expression of the fundamental principles set forth in the American Declaration.[46]

 

109.          Before addressing the merits of this case, the Commission deems it advisable to articulate its standard of review in capital punishment cases. In this regard, the Commission is of the view that it must apply a heightened level of scrutiny in such cases.  The right to life is widely recognized as the supreme right of the human being, and the conditio sine qua non to the enjoyment of all other rights.[47]  The Commission therefore considers that it has an enhanced obligation to ensure that any deprivation of life perpetrated by a State Party through the death penalty complies strictly with the provisions of the Declaration, in particular the right to life provision of Article I, the guarantees of humane treatment under Articles XXV and XXVI, and the due process and judicial protections guaranteed by Articles XVIII, XXV, XXIV, and XXVI of the Declaration.

 

110.          This “heightened scrutiny” test is consistent with the restrictive approach to the death penalty provisions of human rights treaties advocated by other international authorities.[48] In particular, the Inter-American Court has concluded that the American Convention has adopted an approach in respect of the death penalty that is “incremental” in character, whereby, “without going so far as to abolish the death penalty, the Convention imposes restrictions designed to delimit strictly its application and scope, in order to reduce the application of the penalty to bring about its gradual disappearance.”[49]

 

111.          The Commission also notes that the heightened scrutiny test is not precluded by the fourth instance formula adopted by the Commission.  Pursuant to the “fourth instance formula,” the Commission in principle will not review the judgments issued by the domestic courts acting within their competence and with due judicial guarantees.[50] The fourth instance formula does not, however, preclude the Commission from considering a case where the petitioner’s allegations entail a possible violation of any of the rights set forth in the American Convention and the American Declaration.  In the case of Clifton Wright, for example, a Jamaican citizen who alleged that a judicial error resulted in a death sentence against him, the Commission concluded that the conviction and sentence were undermined by the record in the case, but that the appeals process in Jamaica did not permit for a correction of the situation. Consequently, the Commission found that Jamaica had violated the petitioner’s right to judicial protection under Article 25 of the Convention, and recommended that the Government of Jamaica order an investigation of the matter and afford Mr. Wright a judicial remedy to have the inconsistency corrected. Because Mr. Wright had been denied effective domestic judicial protection, and was the victim of a discrete human rights violation under the American Convention, the fourth instance formula did not apply in his case.[51]

 

112.          Likewise, in the case of William Andrews, the Commission applied a heightened scrutiny test, and was not precluded from the fourth instance formula, in examining Mr. Andrews’ case.  Mr. Andrews was sentenced to death upon the conclusion of a trial in the State of Utah, United States of America. After examining the case, the Commission found that Mr. Andrews did not receive judicial protection from the United States of America from the racial discrimination to which he was subjected to during his trial for capital murder.  The Commission found that Mr. Andrews’ rights under the American Declaration had been violated, namely, his right to life (Article I), his right to an impartial hearing (Article XXVI), his right to equality before the law (Article II), and not to receive cruel, infamous or unusual punishment and treatment (Article XXVI) had been violated by the State.  The Commission concluded as a result of the violations of Articles of the Declaration, that Mr. Andrews’ execution constituted an arbitrary deprivation of his right to life pursuant to Article I of the American Declaration and recommended compensation to his next of kin.

 

113.          The Commission will therefore review Messrs. Edwards,’ Hall’s, Shoreter’s and Bowleg’s allegations pertaining to the imposition of capital punishment with a heightened level of scrutiny, to ensure that the right to life as prescribed under the Declaration is properly respected. In addition, the fourth instance formula will not preclude the Commission from adjudicating their rights insofar as those claims disclose possible violations of the American Declaration.

 

B.          Alleged Violations of the American Declaration

 

114.          As detailed previously, the Petitioners allege: (i) violations of Articles I, II, XVII, XVIII, XI, XXV, and XXVI of the Declaration, relating to the mandatory nature of the death penalty and the process for granting amnesty, pardon or commutation of sentence in The Bahamas; (ii) violations of Articles XI, XXV, and XXVI of the Declaration pertaining to conditions of detention; and (iii) violations of Article XVIII, and XXVI of the Declaration, relating to the unavailability of legal aid for Constitutional Motions in The Bahamas, and the right to an impartial trial.

 

115.          Also as noted previously, on December 11, 1998, the State only replied to the Commission’s communications concerning Mr. Edwards.  In Mr. Edwards’ case the State argued that the Constitutionality of both the imposition of a mandatory death penalty upon a conviction for murder, and the procedure followed by the Advisory Committee on the Prerogative of Mercy, have been upheld by the Privy Council, the highest Appellate Court in The Bahamas.  The State has not replied to the Commission’s communications to it dated December 10, 1998, and October 19, 1999, with regard to Mr. Hall’s petition. Nor has the State responded to the Commission’s communications to it dated, January 19, and January 25, 1999, with respect to Messrs. Schroeter’s and Bowleg’s petition to provide the Commission with information that the State deemed relevant pertaining to the exhaustion of domestic remedies and the claims raised in the petitions.

 

116.          As a consequence, in determining the merits of the Petitioners' allegations in respect of Messrs. Hall, Schroeter and Bowleg, the Commission will presume the facts as reported in the petition to be true, provided that the evidence does not lead to a different conclusion, in accordance with Article 42 of the Commission's Regulations.

 

a.          Articles I, II, XVIII, XXIV, XXVI - The Mandatory Death Penalty

 

i         Messrs. Edwards, Hall, Schroeter and Bowleg were sentenced to a Mandatory Death Penalty

 

117.          Messrs. Edwards, Hall, Schroeter and Bowleg were convicted of murder under the Penal Code of The Bahamas.  Section 311 of the Criminal Code of The Bahamas, provides that “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 is in this Title hereafter mentioned.”[52]  Section 312 of the Criminal Code provides: “Whoever commits murder shall be liable to suffer death."[53]  The crime of murder in The Bahamas can therefore be regarded as subject to a “mandatory death penalty,” namely a death sentence that the law compels the sentencing authority to impose based solely upon the category of crime for which the defendant is found responsible.  Once a defendant is found guilty of the crime of murder, the death penalty must be imposed.

 

118.          With regard to Mr. Edwards’ case, the Petitioners claim that there were mitigating circumstances which could not be presented to the trial judge upon Mr. Edwards’ conviction for murder but prior to his sentencing.  The Petitioners maintain that Mr. Edwards committed a robbery which resulted in death and that because of Section 11(3) of the penal code of the Bahamas which defines what constitutes “intent” to commit murder under Section 312 of the Penal Code, Mr. Edwards was sentenced to death.  Section 11(3) states that: “If a person does an 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.”

 

119.          In addition, the Petitioners report 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 one 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 there were procedural irregularities in the conduct of his identification.  The Petitioners argue that Mr. Edwards gave sworn testimony and his defense was that of misidentification, that he relied on an alibi witness, and that his alibi evidence 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. However, Mr. Edwards was sentenced to death based soley on the category of the crime for which he was convicted.

 

120.          In Messrs. Hall’s, Schroter’s and Bowleg’s cases, the Petitioners claim that Messrs, Hall, Schroeter and Bowleg were tried together as co-defendants for the crime of murder.  In Mr. Hall’s case, the Petitioners contend that Mr. Hall’s defense was that of misidentification, and that Mr. Hall has an alibi witness.  The Petitioners argue that there was a lack of forensic evidence of Mr. Hall’s complicity in the murder, and that he was convicted upon the involuntary confessions of Messrs. Schroeter and Bowleg, who were tortured by the police prior to making those involuntary confessions, and who implicated him in the murder.  In addition, the Petitioners contend  that Mr. Hall continues to deny his guilt in relation to the crime, and that Mr. Hall has no past criminal record. According to the Petitioners, the prosecution’s case was that Messrs. Schroter and Bowleg were engaged in a joint enterprise to rob the deceased which culminated in his death.  Both Messrs. Schroeter and Bowleg claimed to have had alibi evidence to show that they were not in the area at the time of the shooting, and that two alibi witnesses supported their defense by Affidavit.

 

121.          In addition, Messrs. Schroeter and Bowleg claim that they were convicted on their involuntary statements which were made to police officers subsequent to their having been physically abused and tortured by the police. Accordingly, a court in imposing the death sentences on the condemned men in The Bahamas could not take these mitigating circumstances into account because pursuant to Sections 312 and 11(3) of the Penal Code of The Bahamas, death is the prescribed sentence for the crime of murder.

 

122.          As indicated above, Messrs. Edwards, Hall, Schroeter and Bowleg have alleged that because they were sentenced to a mandatory death penalty for the crime of murder, the State violated their rights guaranteed under Articles I, II, XVIII, XXIV, and XXV, XXVI, of the American Declaration. Messrs. Edwards, Hall, Schroeter and Bowleg have also argued that the process for granting amnesty, pardon or commutation of sentence in The Bahamas does not provide an adequate opportunity for considering individual and mitigating circumstances, which is in violation of their right to petition pursuant to Article XXIV of the Declaration.

 

123.          The Commission will first analyze the compatibility of the mandatory death sentence for the crime of murder with Articles I, II, XVIII, XXIV, XXV, XXVI, in light of the terms of those provisions, their underlying principles, and relevant international and domestic precedents.  The Commission will then determine whether the State has violated the rights of Messrs. Edwards, Hall, Schroeter Bowleg under the Declaration, because of the manner in which they were sentenced to death.

 

ii.       Articles I, XVIII, XXIV, XXV, XXVI of the Declaration and the Mandatory Death Penalty

 

124.          In light of the allegations raised by the condemned men, the Commission must first ascertain whether the practice of imposing the death penalty for the crime of murder through mandatory sentencing is compatible with Article I (right to life), Articles XVIII, XXV, XXVI, XXIV (right to judicial protection, right to an impartial hearing, right to due process of law and to humane treatment, right to petition,) of the American Declaration and the principles underlying those provisions.

 

125.          Article I of the American Declaration provides:

 

Every human being has the right to life, liberty and the security of his person.[54]

 

 

 

          126.          Article I of the Declaration places an emphasis on the “right to life,” and not the arbitrary deprivation of life, and does not specifically refer to “capital punishment” in the manner that Article 4 of the American Convention does. However, the Commission refers to the travaux preparatoires on the American Declaration entitled, “Project of Declaration of the International Rights and Duties of Man,“ which was formulated by the Inter-American Juridical Committee (“the Judicial Committee”) for consideration by the Ninth International Conference of American States, Pan American Union, Washington, 1948.[55]  The Commission notes that the former Article I of the American Declaration as found in the travaux prepartoires specifically addressed the issue of capital punishment and restrictions on its application, and provides:

 

Every person has the right to life.  This right extends to the right to life from the moment of conception; to the right to life of incurables, imbeciles and the insane.

 

Capital punishment may only be applied in cases in which it has been prescribed by pre-existing law for crimes of exceptional gravity.[56]

 

          127.          However, the second paragraph of the draft Article I was deleted in the final draft of the Declaration, and the reason given for this deletion by the Juridical Committee in paragraph 10 of the travaux prepartoires was the following:

 

The last part of this article is also changed in order to emphasize that the Committee is not taking sides in favor of the death penalty but rather admitting the fact that there is a diversity of legislation in this respect, recognizes the authority of each State to regulate this question.

 

128.          It is clearly evident from the travaux prepartoires of the American Declaration that the Juridical Committee considered “the right to life” to be the fundamental of all human rights which should be extended “from the moment of conception to all persons including incurables, imbeciles and the insane.”  However, the original paragraph 2 of the travaux prepartoires expressly restricted the imposition and application of capital punishment, and provided that it “only be applied in cases in which it has been prescribed by pre-existing law for crimes of exceptional gravity.”  Furthermore, despite the omission of the original paragraph 2 in the final draft of the Declaration, the Commission is of the opinion that the founding fathers of the Declaration intended that the states in issuing legislation in respect of capital punishment uphold the sanctity of life as being sacrosanct with all the due process judicial guarantees found in other Articles of the Declaration before the imposition and implementation of capital punishment.  These due process rights and judicial guarantees provided for in the Declaration in addition to Article I, include the following Articles and their provisions: 

 

 

Article II provides:

 

All persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor.

 

Article XVIII states:

 

Every person may resort to the courts to ensure respect for his legal rights.  There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights.

 

Article XXIV provides:

 

Every person has the right to submit respectful petitions to any competent authority, for reasons of either general or private interest, and the right to obtain a prompt decision thereon.

 

Article XXV states:

 

No person may be deprived of his liberty except in the cases and according to the procedures established by pre-existing law.

 

No person may be deprived of liberty for nonfulfillment of obligations of a purely civil character.

 

Every individual who has been deprived of his liberty has the right to have the legality of his detention ascertained without delay by a court, and the right to be tried without undue delay or, otherwise, to be released.  He also has the right to humane treatment during the time he is in custody.

 

Article XXVI provides:

 

Every accused person is presumed to be innocent until proved guilty.

Every person accused of an offense has the right to be given an impartial and public hearing, and to be tried by courts previously established in accordance with pre-existing laws, and not to receive cruel, infamous or unusual punishment.

 

129.          In comparison to the Declaration, Article 4 of the American Convention expressly provides limitations and restrictions on the imposition and application of capital punishment.[57] Article 4 of the Convention permits States Parties that have not abolished the death penalty to continue to impose it.  At the same time, the Convention strictly regulates the manner in which States Parties may impose the death penalty in their respective States.  This restrictive approach under the Convention to the perpetuation of the death penalty mirrors the treatment of the death penalty generally under contemporary international and, as Part IV of this Report will indicate, domestic practice.

 

130.          More particularly, drawing in part upon the past experience of international human rights bodies, several general principles of interpretation can be identified in respect of the death penalty provisions of international human rights instruments in general, and both Article 4 of the Convention  and Article I of the Declaration in particular.  First, the supervisory bodies of international human rights instruments have subjected the death penalty provisions of their governing instruments to a rule of restrictive interpretation.  In its Advisory Opinion on Restrictions to the Death Penalty under Articles 4(1) and 4(4) of the Convention, for example, the Inter-American Court of Human Rights adopted a restrictive approach to Article 4 of the Convention, finding that “the text of the article as a whole reveals a clear tendency to restrict the scope of this penalty both as far as its imposition and its application are concerned”.[58]

 

131.          Other international human rights supervisory bodies have similarly afforded a strict interpretation of the death penalty provisions in human rights treaties.  The U.N. Human Rights Committee has held in the context of Article 6 of the ICCPR, which parallels Article 4 of the Convention in certain respects,[59] that the law must strictly control and limit the circumstances in which a person may be deprived of his life by the authorities of the state.[60]  The Committee has accordingly determined that the imposition of a sentence of death upon conclusion of a trial in which the provisions of the Covenant have not been respected constitutes, if no further appeal against the sentence is possible, a violation of Article 6 of the Covenant.  Its recommended remedies in such cases have included release,[61] and commutation of the death sentence.[62]  The U.N. Special Rapporteur on Extra-Judicial, Summary or Arbitrary Executions has likewise emphasized that proceedings leading to the imposition of capital punishment must conform to the highest standards of independence, competence, objectivity and impartiality of judges and juries and other strict requirements of due process.[63]  This Commission has similarly closely scrutinized the circumstances of death penalty cases to ensure strict compliance with the requirements of due process and judicial protection.[64]

 

132.          It is also generally recognized that the death penalty is a form of punishment that differs in substance as well as in degree in comparison to other forms of punishment.  It is the absolute form of punishment that results in the forfeiture of the most valuable of rights, the right to life, and once implemented, is irrevocable and irreparable.  As the United States Supreme Court has observed, “the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two.  Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.”[65]  In the Commission's view, the fact that the death penalty is an exceptional form of punishment must also be considered in interpreting Article 4 of the Convention and Article I of the Declaration.

 

133.          Finally, with respect to the restrictions prescribed in Article 4 of the American Convention in particular, the Inter-American Court has identified three principal limitations explicitly prescribed in Article 4 on the ability of States Parties to the Convention to impose the death penalty:

 

Thus, three types of limitations can be seen to be applicable to States Parties which have not abolished the death penalty.  First, the imposition or application of this sanction is subject to certain procedural requirements whose compliance must be strictly observed and reviewed. Second, the application of the death penalty must be limited to the most serious common crimes not related to political offenses.  Finally, certain considerations involving the person of the defendant, which may bar the imposition or application of the death penalty, must be taken into account.[66] [emphasis added]

 

134.          The Court’s observations therefore accentuate the significance of strict adherence to and review of due process guarantees in implementing the death penalty in accordance with Article 4 of the Convention.  Moreover, as part of that process, the Court suggests that certain circumstances of individual offenses and individual defendants may bar the imposition or application of the death penalty altogether, and therefore must be taken into account in sentencing an individual to death.  In this regard, in past cases the Commission has similarly declined to interpret Article I of the Declaration as either prohibiting use of the death penalty per se, or conversely as exempting capital punishment from the Declaration's standards and protections altogether. Rather, in part by reference to Article 4 of the American Convention on Human Rights, the Commission has found that Article I of the Declaration, while not precluding the death penalty altogether, prohibits its application when doing so would result in an arbitrary deprivation of life.[267

 

135.          Further, the Commission has identified several deficiencies that may render an execution arbitrary contrary to Article I of the Declaration. These include a failure on the part of a state to limit the death penalty to crimes of exceptional gravity prescribed by pre-existing law,[68] denying an accused strict and rigorous judicial guarantees of a fair trial,[69] and notorious and demonstrable diversity of practice within a Member State that results in inconsistent application of the death penalty for the same crimes.[70] It is in light of the foregoing interpretive rules and principles that the Commission must determine whether the practice of imposing the death penalty through mandatory sentencing is compatible with the terms of Articles I, XVIII, XXIV, XXV, XXVI, of the Declaration and the principles underlying those provisions.

 

136.          In the Commission’s view, several aspects of imposing mandatory death penalties for the crime of murder are problematic in the context of a proper interpretation and application of the Declaration.  First, it is well-recognized that the crime of murder can be perpetrated in the context of a wide variety of mitigating and aggravating circumstances, with varying degrees of gravity and culpability.[71]  This conclusion is illustrated by the broad definition of murder under law of The Bahamas, as the unlawful killing of another person with the intent to kill or to cause unlawful harm or injury.[72] It is also illustrated by the circumstances of the condemned men’s cases. Notwithstanding the existence of such disparities, however, the mandatory death penalty, seeks to impose capital punishment in all cases of murder, without distinction.  It subjects an individual who, for example, commits a murder in a spontaneous act of passion or anger, to the equivalent and exceptional punishment as an individual who executes a murder after carefully planning and premeditation.

 

137.          Mandatory sentencing by its very nature precludes consideration by a court of whether the death penalty is an appropriate, or indeed permissible, form of punishment in the circumstances of a particular offender or offense.  Moreover, by reason of its compulsory and automatic application, a mandatory sentence cannot be the subject of an effective review by a higher court.  Once a mandatory sentence is imposed, all that remains for a higher court to review is whether the defendant was found guilty of a crime for which the sentence was mandated. In the Commission’s view, these aspects of mandatory death sentences cannot be reconciled with Article I of the Declaration, in several respects.  As noted above, the mandatory death penalty in The Bahamas imposes the death penalty on all individuals convicted of murder, despite the fact that the crime of murder can be committed with varying degrees of gravity and culpability. Not only does this practice fail to reflect the exceptional nature of the death penalty as a form of punishment, but, in the view of the Commission, it results in the arbitrary deprivation of life, contrary to Article I of the Declaration.

 

138.          More particularly, imposing a mandatory penalty of death for all crimes of murder prohibits a reasoned consideration of each individual case to determine the propriety of the punishment in the circumstances, despite the fact that murder can be committed under widely-differing circumstances.  By its nature, then, this process eliminates any reasoned basis, for sentencing a particular individual to death and fails to allow for a rational and proportionate connection between individual offenders, their offenses, and the punishment imposed on them. Implementing the death penalty in this manner therefore results in the arbitrary deprivation of life, within the ordinary meaning of that term and in the context of the object and purpose of Article I of the Declaration.

 

139.          Accepted principles of treaty interpretation suggest that sentencing individuals to the death penalty through mandatory sentencing and absent consideration of the individual circumstances of each offender and offense leads to the arbitrary deprivation of life within the meaning of Article I of the Declaration. Article 31(1) of the Vienna Convention on the Law of Treaties provides that a treaty shall be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.”  The ordinary meaning of the term “arbitrary” connotes an action or decision that is based on random or convenient selection or choice rather than on reason or nature.[73]  The U.N. Human Rights Committee suggested a similar meaning for the term arbitrary in the context of Article 6(1) of the ICCPR, in the case of Kindler v. Canada.[74]

 

140.          In that case, the complainant, a citizen of the United States, was ordered extradited from Canada to face a possible death sentence in the State of Pennsylvania for a conviction of murder.  The Committee found that Canada did not violate the complainant’s right under Article 6(1) of the ICCPR not to be arbitrarily deprived of his life, by extraditing him to the United States without seeking assurances from the United States’ Government that the death penalty would not be imposed.  At the same time, the Committee suggested that the decision not to refuse extradition or to seek assurances must be shown to have been based upon a reasoned consideration of the circumstances of Mr. Kindler’s case:

 

While States must be mindful of the possibilities for the protection of life when exercising their discretion in the application of extradition treaties, the Committee does not find that the terms of article 6 of the Covenant necessarily require Canada to refuse to extradite or to seek assurances.  The Committee notes that the extradition of Mr. Kindler would have violated Canada’s obligations under article 6 of the Covenant, if the decision to extradite without assurances had been taken arbitrarily or summarily. The evidence before the Committee reveals, however, that the Minister of Justice reached a decision after hearing argument in favor of seeking assurances.  The Committee further takes note of the reasons given by Canada not to seek assurances in Mr. Kindler’s case, in particular, the absence of exceptional circumstances, the availability of due process, and the importance of not providing a safe haven for those accused of or found guilty of murder.[75]

 

141.          The Committee has therefore suggested that an arbitrary decision includes one that is taken in the absence of a reasoned consideration of the circumstances of the case in respect of which the decision is made. In this respect, the mandatory death penalty can be regarded as arbitrary within the ordinary meaning of that term. The decision to sentence a person to death is not based upon a reasoned consideration of a particular defendant’s case, or upon objective standards that guide courts in identifying circumstances in which the death penalty may or may not be an appropriate punishment.  Rather, the penalty flows automatically once the elements of the offense of murder have been established, regardless of the relative degree of gravity of the offense or culpability of the offender.

 

142.          The mandatory death penalty cannot be reconciled with Article I of the Declaration in another significant respect.  As noted previously, the Inter-American Court has emphasized several restrictions upon the implementation of the death penalty that flow directly from the terms of Article 4 of the Convention, restrictions which, in the Commission’s view, also provide guidance in defining limitations under Article I of the Declaration on the imposition of capital punishment.  These include considerations relating to the nature of a particular offense, for example whether it can be considered a political or related common offense, as well as factors relating to the circumstances of an individual offender, for example whether the offender was pregnant at the time he or she committed the crime for which the death penalty may be imposed. By its very nature, however, mandatory sentencing imposes the death penalty for all crimes of murder and thereby precludes consideration of these or any other circumstances of a particular offender or offense in sentencing the individual to death.

 

143.          Similarly, by reason of its compulsory nature, the imposition of a mandatory death sentence precludes any effective review by a higher court as to the propriety of a sentence of death in the circumstances of a particular case.  As indicated previously, once a mandatory death sentence is imposed, all that remains for a higher court to review is whether the defendant was properly found guilty of a crime for which the sentence of death was mandated.  There is no opportunity for a reviewing tribunal to consider whether the death penalty was an appropriate punishment in the circumstances of the particular offense or offender.  This consequence cannot be reconciled with the fundamental principles of due process under Articles I, XVIII, XXIV, XXV, and XXVI of the Declaration, that govern the imposition of the death penalty.

 

144.          The Inter-American Court has recognized, that Articles 4,5, and 8, of the Convention, include strict observance and review of the procedural requirements governing the imposition or application of the death penalty.  In this connection, the Commission reiterates the fundamental significance of ensuring full and strict compliance with due process protections in trying individuals for capital crimes, from which there can be no derogation under the Convention or the Declaration.  Further, the Inter-American Court of Human Rights recently noted the existence of an "internationally recognized principle whereby those States that still have the death penalty must, without exception, exercise the most rigorous control for observance of judicial guarantees in these cases," such that "[i]f the due process of law, with all its rights and guarantees, must be respected regardless of the circumstances, then its observance becomes all the more important when that supreme entitlement that every human rights treaty and declaration recognizes and protects what is at stake: human life."[76] The Commission found in the cases of Rudolph Baptiste (Grenada),[77] Desmond Mckenzie, Andrew Downer and Alphonso Tracey, Carl Baker, Dwight Fletcher, and Anthony Rose, (Jamaica) that imposing a mandatory death penalty in all cases of murder is not consistent with the terms of Articles 4, 5, and 8 of the American Convention, particularly, where the due process rights of the condemned men were not strictly observed.[78]

 

145.          The absence of effective review further illustrates the arbitrary nature of implementing the death penalty through mandatory sentencing, and leads the Commission to conclude that this practice cannot be reconciled with the terms of Article 1 of the Declaration and its inherent principles. In this regard, the Commission is also of the view that the imposition of a mandatory death sentence in all cases of murder in The Bahamas is not consistent with Articles XXVI, and XXV of the Declaration and its underlying principles. Article XXVI of the Declaration provides as follows:

 

Article XXVI provides:

 

Every accused person is presumed to be innocent until proved guilty.

 

Every person accused of an offense has the right to be given an impartial and public hearing, and to be tried by courts previously established in accordance with pre-existing laws, and not to receive cruel, infamous or unusual punishment.

 

Article XXV states:

 

No person may be deprived of his liberty except in the cases and according to the procedures established by pre-existing law.

 

No person may be deprived of liberty for nonfulfillment of obligations of a purely civil character.

 

Every individual who has been deprived of his liberty has the right to have the legality of his detention ascertained without delay by a court, and the right to be tried without undue delay or, otherwise, to be released.  He also has the right to humane treatment during the time he is in custody.

 

146.          Among the fundamental principles upon which the American Declaration and the American Convention are grounded is the recognition that the rights and freedoms protected thereunder are derived from the attributes of their human personality.[79] From this principle flows the basic requirement underlying the Declaration and the Convention as a whole, that individuals be treated with dignity and respect. Article XXV of the Declaration which guarantees the right of protection from arbitrary arrest, provides that every individual “has the right to humane treatment during the time he is in custody.  In addition, Article XXVI, of the Declaration which guarantees the right to due process of law, provides that every person accused of an offense, “has the right not to receive cruel, infamous or unusual punishment. The Commission believes that these guarantees presuppose that persons protected under the Declaration will be regarded and treated as individual human beings, particularly in circumstances in which a State Party proposes to limit or restrict the most basic rights and freedoms of an individual, such as the right to liberty. In the Commission’s view, consideration of respect for the inherent dignity and value of individuals is especially crucial in determining whether a person should be deprived of his or her life.

 

147.          The mandatory imposition of the death sentence, however, has both the intention and the effect of depriving a person of their right to life based solely upon the category of crime for which an offender is found guilty, without regard for the offender’s personal circumstances or the circumstances of the particular offense.  The Commission cannot reconcile the essential respect for the dignity of the individual that underlies Articles XXV and XXVI of the Declaration, with a system that deprives an individual of the most fundamental of rights without considering whether this exceptional form of punishment is appropriate in the circumstances of the individual’s case.

 

148.          Finally, the Commission considers that the imposition of mandatory death sentences cannot be reconciled with an offender’s right to due process, as contemplated in and as provided for in Articles XVIII, XXV, and XXVI of the Declaration.  It is well established that proceedings leading to the imposition of capital punishment must conform to the highest standards of due process.  The due process standards governing accusations of a criminal nature against an individual prescribed in Articles XVIII, XXV, and XXVI, of the Declaration, include namely, the right to judicial protection which is the right to resort to the courts to ensure respect for his legal rights, and for violation of any fundamental constitutional rights (Article XVIII); the right not to be deprived of his liberty and to be tried without undue delay or to be released, and the right to humane treatment during the time he is in custody ( Article XXV); the right to be presumed innocent until proven guilty and to be given an impartial and public hearing, with all due process guarantees; (Article XXVI); and the right to petition to any competent authority and to obtain a prompt decision thereon (Article XXIV).

 

149.          In the Commission’s view, therefore, the due process guarantees under Articles XVIII, XXIV, XXV, and XXVI, of the Declaration, when read in conjunction with the requirements of Article I of the Declaration, presuppose as part of an individual’s defense to a capital charge an opportunity to make submissions and present evidence as to whether a death sentence may not be a permissible or appropriate punishment in the circumstances of his or her case.  The due process guarantees should also be interpreted to include a right of effective review or appeal from a determination that the death penalty is an appropriate sentence in a given case.

 

150.          The mandatory imposition of the death sentence is inherently antithetical to these prerequisites.  By its nature, it precludes any opportunity on the part of the offender to make, or for the Court to consider, representations or evidence as to whether the death penalty is a permissible or appropriate form of punishment, based upon the considerations underlying Article I of the Declaration or otherwise.  Also, as noted previously, it precludes any effective review by a higher court of a decision to sentence an individual to death.

 

151.          Contrary to the current practice in The Bahamas, the Commission considers that imposing the death penalty in a manner which conforms with Articles I, XVIII, XXIV, XXV, and XXVI, of the Declaration requires an effective mechanism by which a defendant may present representations and evidence to the sentencing court as to whether the death penalty is a permissible or an appropriate form of punishment in the circumstances of their case. In the Commission’s view, this includes, but is not limited to, representations and evidence as to whether any of the provisions of Articles I, XVIII, XXIV, XXV, and XXVI of the Declaration may prohibit the imposition of the death penalty.

 

152.          In this regard, as the following discussion of international and domestic jurisdictions will indicate, a principle of law has developed common to those democratic jurisdictions that have retained the death penalty, according to which the death penalty should only be implemented through “individualized” sentencing.  Through this mechanism, the defendant is entitled to present submissions and evidence in respect of all potentially mitigating circumstances relating to himself and his or her offense, and the court imposing sentence is afforded discretion to consider these factors in determining whether the death penalty is a permissible or appropriate punishment.[80]

 

153.          Mitigating factors may relate to the gravity of the particular offense or the degree of culpability of the particular offender, and may include such factors as the offender’s character and record, subjective factors that might have motivated his or her conduct, the design and manner of execution of the particular offense, and the possibility of reform and social readaptation of the offender.  Consistent with the foregoing discussion, the Commission considers that the high standards of due process and humane treatment under Articles XVIII, XXIV, XXV, and XXVI of the Declaration should be interpreted to require individualized sentencing in death penalty cases.

 

154.          In light of the foregoing analysis, the Commission considers that the imposition of a mandatory death sentence by the State for the crime of murder, is not consistent with the terms of Articles I, XXIV, XXV, and XXVI of the Declaration, and the principles underlying those Articles.

 

iii.          Individualized Sentencing in Other International and
              Domestic Jurisdictions

 

155.          The experience of other international human rights authorities, as well as the high courts of various common law jurisdictions that have, at least until recently, retained the death penalty, substantiates and reinforces an interpretation of Articles I, XVIII, XXIV, XXV, and XXVI, of the Declaration that prohibits the mandatory imposition of the death sentence. In this connection, it is the Commission’s view, based upon a study of these various international and domestic jurisdictions, that a common precept has developed whereby the exercise of guided discretion by sentencing authorities to consider potentially mitigating circumstances of individual offenders and offenses is considered to be a condition sine qua non to the rational, humane and fair imposition of capital punishment. Mitigating circumstances requiring consideration have been determined to include, inter alia, the character and record of the offender, the subjective factors that might have influenced the offender’s conduct, the design and manner of execution of the particular offense, and the possibility of reform and social readaptation of the offender.

 

156.          In the case of Lubuto v. Zambia,[81] for example, the complainant had received a mandatory death sentence for armed robbery.  The United Nations Human Rights Committee did not address the question of whether mandatory death penalties per se contravened the International Covenant on Civil and Political Rights (“ICCPR”).  The Committee found, however, that the absence of discretion on the part of a sentencing authority to consider the particular circumstances of an offense in determining whether the death penalty is an appropriate punishment may, in certain circumstances, contravene internationally prescribed conditions for implementing capital punishment.  In this case, the Committee found that the absence of discretion contravened the requirement under Article 6(2) of the ICCPR[82] that the death penalty be imposed “only for the most serious crimes”.  The Committee concluded:

 

Considering that in this case use of firearms did not produce the death or wounding of any person and that the court could not under the law take these elements into account in imposing sentence, the Committee is of the view that the mandatory imposition of the death sentence under these circumstances violates article 6, paragraph 2 of the Covenant.

 

157.          The United Nations Special Rapporteur on Extra-Judicial, Summary or Arbitrary Executions has suggested more generally that the due process standards applicable in death penalty proceedings require, inter alia, that all mitigating factors be taken into account in imposing sentence:

 

Proceedings leading to the imposition of capital punishment must conform to the highest standards of independence, competence, objectivity and impartiality of judges and juries. All defendants in capital cases must benefit from the full guarantees for an adequate defense at all stages of the proceedings, including adequate provision for State-funded legal aid by competent defense lawyers.  Defendants must be presumed innocent until their guilt has been proven without leaving any room for reasonable doubt, in application of the highest standards for the gathering and assessment of evidence.  All mitigating factors must be taken into account. A procedure must be guaranteed in which both factual and legal aspects of the case may be reviewed by a higher tribunal composed of judges other than those who dealt with the case at the first instance. In addition, the defendant’s right to seek pardon, commutation of sentence or clemency must be guaranteed.[83]  [emphasis added]

 

158.          The highest courts of various common law jurisdictions in which the death penalty has, at least until recently, been retained have similarly considered the rational, humane and fair imposition of the death penalty to require guided discretion on the part of the sentencing authority to consider mitigating circumstances of individual offenders and offenses.  The United States Supreme Court in the case of Woodson v. State of North Carolina[84] found that a mandatory death sentence for first degree murder under the law of North Carolina violated the Eighth[85] and Fourteenth[86] Amendments to the U.S. Constitution.  Among the grounds for the Court’s decision was a finding that the mandatory death penalty did not satisfy a basic constitutional requirement, and that the process for imposing a death sentence should not be arbitrary, but rather incorporate “objective standards” that guide and regularize the process and make it amenable to judicial review.[87]  The Court also found that the mandatory death penalty failed to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before imposing a death sentence upon him, and was therefore inconsistent with the fundamental respect for humanity underlying the prohibition of cruel and unusual punishment under the Eighth Amendment.  In respect of the latter ground, the Court made the following compelling observations:

 

In Furman, members of the Court acknowledged what cannot be fairly denied – that death is a punishment different from all other sanctions in kind rather than degree.[88] A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind. It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.

 

This Court has previously recognized that “[f] or the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender.[89] Consideration of both the offender and the offense in order to arrive at a just and appropriate sentence has been viewed as a progressive and humanizing development.[90] While the prevailing practice of individualizing sentencing determinations generally reflects simply an enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment,[91] 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.

 

This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.[92]

 

159.          In the case of The State v. Makwanyane and McHunu,[93] the Constitutional Court of South Africa struck down the death penalty provision of the Criminal Procedure Act Nº 51[94] as inconsistent with South Africa’s 1993 Constitution.  As part of its analysis, that Court also suggested that the guided discretion provided to South African judges to consider the personal circumstances and subjective factors of a defendant in applying the death penalty satisfied in part the requirement that the death penalty not be imposed arbitrarily or capriciously, the Court reasoned as follows [footnotes included]:

         

Basing his argument on the reasons which found favor with the majority of the United States Supreme Court in Furman v. Georgia, Mr. Trengove contended on behalf of the accused that the imprecise language of section 277, and the unbounded discretion vested by it in the Courts, make its provisions unconstitutional.[95]

[…]

 

Under our court system questions of guilt and innocence, and the proper sentence to be imposed on those found guilty of crimes, are not decided by juries. In capital cases, where it is likely that the death sentence may be imposed, judges sit with two assessors who have an equal vote with the judge on the issue of guilt and on any mitigating or aggravating factors relevant to sentence; but sentencing is the prerogative of the judge alone. The Criminal Procedure Act allows a full right of appeal of persons sentenced to death, including a right to dispute the sentence without having to establish an irregularity or misdirection on the part of the trial judge. The Appellate Division is empowered to set the sentence aside if it would not have imposed such a sentence itself, and it has laid down criteria for the exercise of this power by itself and other courts.[96] If the person sentenced to death does not appeal, the Appellate Division is nevertheless required to review the case and to set aside the death sentence if it is of the opinion that it is not a proper sentence.[97]

Mitigating and aggravating factors must be identified by the Court, bearing in mind that the onus is on the State to prove beyond a reasonable doubt the existence of aggravating factors, and to negate beyond a reasonable doubt the presence of any mitigating factors relied upon by the accused.[98]  Due regard must be paid to personal circumstances and subjective factors which might have influenced the accused person’s conduct,[99] and these factors must then be weighed with the main objects of punishment, which have been held to be: deterrence, prevention, reformation, and retribution.[100] In this process “[e]very relevant consideration should receive the most scrupulous care and attention,”[101] and the death sentence should only be imposed in the most exceptional cases, where there is no reasonable prospect of reformation and the objects of punishment would not be properly achieved by any other sentence.[102]

 

There seems to me to be little difference between the guided discretion required for the death sentence in the United States, and the criteria laid down by the Appellate Division for the imposition of the death sentence.  The fact that the Appellate Division, a court of experienced judges, takes the final decision in all cases is, in my view, more likely to result in consistency of sentencing, than will be the case where sentencing is in the hands of jurors who are offered statutory guidance as to how that discretion should be exercised.[103]

 

160.          Similarly, in the case of Bachan Singh v. State of Punjab,[104] the appellant argued before the Supreme Court of India that section 354(3) of the Indian Criminal Procedure Code, 1973 contravened the requirement under Article 21 of the Indian Constitution that “[n]o person shall be deprived of his life or personal liberty except according to procedure established by law,” because the provision provided judges with too much discretion in determining whether offenders should be sentenced to death.[105]  The Indian Supreme Court rejected the appellant’s contention, because in the Court’s view, it was consistent with the requirements of Article 21 for the legislation to leave the imposition of the death penalty to “the judicial discretion of the Courts which are manned by persons of reason, experience and standing in the profession” who exercise their sentencing discretion “judicially in accordance with well-recognized principles crystallized by judicial decisions directed along the broad contours of legislative policy towards the signposts enacted in section 354(3).”[106]  In reaching this conclusion, the Court articulated the following propositions intended to guide Indian judges in exercising their sentencing discretion relating to the death penalty:

 

the normal rule is that the offense of murder shall be punished with the sentence of life imprisonment. The Court can depart from that rule and impose the sentence of death only if there are special reasons for doing so. Such reasons must be recorded in writing before imposing the death sentence.

 

While considering the question of sentence to be imposed for the offense of murder under section 302 of the Penal Code, the Court must have regard to every relevant circumstance relating to the crime as well as the criminal. If the Court finds, but not otherwise, that the offense is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the Court may impose the death sentence.[107]

 

161.          The Court also emphasized the crucial role that mitigating factors play in the humane imposition of capital punishment. The Court stated that the “scope and concept of mitigating factors in the area of the death penalty must receive a liberal and expansive construction by the Courts in accord with the sentencing policy written in section 354(3),” and opined that:

 

[a] real and abiding concern for the dignity of human life postulates resistance to taking a life through law’s instrumentality. That should not be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.[108]

 

162.          The experience in other international and domestic jurisdictions therefore suggests that a Court must have the discretion to take into account the individual circumstances of an individual offender and offense in determining whether the death penalty can and should be imposed, if the sentencing is to be considered rational, humane and rendered in accordance with the requirements of due process.  The individual circumstances to be considered have been determined to include the character and record of the offender, the subjective factors that might have influenced the offender’s conduct, the design and manner of execution of the particular offense, and the possibility of reform and social readaptation of the offender.

 

163.          Authorities in these jurisdictions have also suggested that, in order to be exercised in a rational and non-arbitrary manner, the sentencing discretion should be guided by legislative or judicially-prescribed principles and standards, and should be subject to effective judicial review, all with a view to ensuring that the death penalty is imposed in only the most exceptional and appropriate circumstances.  The Commission considers that these principles should also be considered in interpreting and applying Articles I, XVIII, XXIV, XXV, and XXVI of the Declaration, so as to require individualized sentencing in implementing the death penalty.  To accept any lesser standard would, in the Commission’s view, fail to afford sufficient protection to the most fundamental of rights under the American Declaration.

 

iv.          The Cases before the Commission

 

a.          Mandatory Death Penalty

 

164.          As previously discussed, the Commission concludes that once the condemned men in these cases were found guilty of the crime of murder, the law in The Bahamas did not permit a hearing by the courts as to whether the death penalty was a permissible or appropriate penalty for the condemned men.  There was no opportunity for the trial judge or the jury to consider such factors as the condemned men’s characters or records, the nature or gravity of the offenses, or any other relevant factors.  The condemned men were likewise precluded from making representations on these matters. The condemned men were sentenced to mandatory death penalties by the Courts, based solely upon the category of crime for which they were convicted.

 

165.          As noted above, the law in The Bahamas does not permit mitigating circumstances to be considered by a court in sentencing an individual to death. The Commission recognizes that, had the courts in these cases been provided with the discretion under law to consider factors of this nature in determining an appropriate sentence, it may well have still imposed the death penalty.  The Commission cannot, and indeed should not, speculate as to what the outcome may have been.  This determination properly falls to the domestic courts.  What is crucial to the Commission's determination that the condemned men’s death sentences contravene the Declaration, however, is the fact that the condemned men were not provided with an opportunity to present mitigating factors in the context of sentencing, nor was the Court permitted to consider evidence of this nature in determining whether the death penalty was an appropriate punishment in the circumstances of the condemned men’s cases.

 

b.          Advisory Committee on the Prerogative of Mercy

 

166.          The Commission does not consider that the State’s Advisory Committee on the Prerogative of Mercy (“the Advisory Committee”), which was established pursuant to Articles 91 and 92 of The Constitution of The Bahamas can provide an adequate opportunity consistent with the requirements of the Articles I, XVIII, XXIV, XXV, and XXVI of the American Declaration for the proper implementation of the death penalty through individualized sentencing. The authority of the Executive in The Bahamas to exercise the Prerogative of Mercy is prescribed in Sections 90, 91, and 92 of the Constitution of The Bahamas[109] which provide as follows:

 

90.            (1) The Governor-General may, in Her Majesty’s name and on Her Majesty’s behalf.- 

(a)      grant to any person convicted of any offense 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 an offence or any penalty or forfeiture otherwise due to Her Majesty on account of such an offence.”

(2)     The powers of the Governor-General under paragraph (1) of this Article shall be exercised by him in accordance with the advice of a Minister designated by him, acting in accordance with the advice of the Prime Minister.

91.     There shall be an Advisory Committee on the Prerogative of Mercy which shall consist of –

(a)     the Minister referred to in paragraph (2) of Article 90 of this Constitution who shall be the Chairman;

(b)     the Attorney General; and

(c)     not less than three or more than five other members appointed by the Governor-General.

92. (1) Where an offender has been sentenced to death by any court for an offence, against 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 on the Prerogative of Mercy 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.

 

167.          The law in The Bahamas therefore provides for a process by which the Executive may exercise the authority to grant amnesties, pardons, or commutations of sentences.  The Commission is not, however, aware of any prescribed criteria that are applied in the exercise of the functions or discretion of the Advisory Committee, save for the requirement in death penalty cases that the Minister cause a written report of the case from the trial judge, and possibly other information in the Minister's discretion, to be taken into consideration at the meeting of the Advisory Committee. Nor is the Commission aware of any right on the part of an offender to apply to the Advisory Committee, to be informed of the time when the Committee will meet to discuss the offender's case, to make oral or written submissions to the Advisory Committee or to present, receive or challenge evidence considered by the Advisory Committee. The submissions of the Petitioners confirm that the exercise of the power of pardon in The Bahamas involves an act of mercy that is not the subject of legal rights and therefore is not subject to judicial review.[110]

 

168.          This process is not consistent with the standards prescribed under Articles I, XVIII, XXIV, XXV, and XXVI of the Declaration, that are applicable to the imposition of mandatory death sentences. As outlined previously, these standards include legislative or judicially prescribed principles and standards to guide courts in determining the propriety of death penalties in individual cases, and an effective right of appeal or judicial review in respect of the sentence imposed.  The Prerogative of Mercy process in The Bahamas clearly does not satisfy these standards, and therefore cannot serve as a substitute for individualized sentencing in death penalty prosecutions.

 

169.          Moreover, based upon the information before it, the Commission finds that the procedure for granting mercy in The Bahamas does not guarantee condemned prisoners with an effective or adequate opportunity to participate in the mercy process, and therefore does not properly ensure the condemned men’s rights under Article XXIV of the Declaration to submit respectful petitions to any competent authority, for reasons of either general or private interest, and the right to obtain a prompt decision thereon.

 

170.          In the Commission's view, the right to petition under Article XXIV of the Declaration, when read together with the State's obligations under the Declaration, must be read to encompass certain minimum procedural protections for condemned prisoners, if the right is to be effectively respected and enjoyed.  These protections include the right on the part of condemned prisoners to apply for amnesty, pardon or commutation of sentence, to be informed of when the competent authority will consider the offender's case, to make representations, in person or by counsel, to the competent authority, and to receive a decision from that authority within a reasonable period of time prior to his or her execution.  It also entails the right not to have capital punishment imposed while such a petition is pending decision by the competent authority.  In order to provide condemned persons with an effective opportunity to exercise this right, a procedure should be prescribed and made available by the State through which prisoners may file an application for amnesty, pardon or commutation of sentence, and submit representations in support of his or her application.  In the absence of minimal protections and procedures of this nature, Article XXIV of the American Declaration is rendered meaningless, a right without a remedy.  Such an interpretation cannot be sustained in light of the object and purpose of the American Declaration.

 

171.          In this respect, the right to petition under Article XXIV of the Declaration may be regarded as similar to the right under Article XXVII of the American Declaration of every person "to seek and receive asylum in foreign territory, in accordance with the laws of each country and with international agreements," and the corresponding Article 22(7) of the Convention, which provides for the right to "seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions, in the event he is being pursued for political offenses or related common crimes."[111]  The Commission has interpreted the former provision, in conjunction with the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees, as giving rise to a right under international law of a person seeking refuge to a hearing in order to determine whether that person qualifies for refugee status.[112]  Other internationally articulated requirements governing the right to seek asylum reflect similar minimum standards, namely, the right of an individual to apply to appropriate authorities for asylum, to make representations in support of their application, and to receive a decision.[113]

 

172.          Consistent with the interpretation of the right to seek asylum by the Commission and other international authorities, the Commission finds that Article XXIV of the Declaration must be interpreted to encompass certain minimum procedural guarantees for condemned prisoners, in order for the right to be effectively respected and enjoyed.  The Commission notes in this regard that some common law jurisdictions retaining the death penalty have prescribed procedures through which condemned prisoners can engage and participate in the amnesty, pardon or commutation process.[114]

 

173.          The information before the Commission indicates that the process in The Bahamas for granting amnesty, pardon or commutation of sentence does not guarantee the condemned men any procedural protections.  By its terms, Sections 91 and 92 of the Constitution of The Bahamas does not provide condemned prisoners with any role in the mercy process.

 

174.          The Petitioners have claimed that the condemned men have no right to make submissions to the Advisory Committee.  Whether and to what extent prisoners may apply for amnesty, pardon or commutation of sentence remains entirely at the discretion of the Advisory Committee, and no procedure or mechanism is provided for, that specifies the manner in which prisoners may file an application for amnesty, pardon or commutation of sentence, submit representations in support of his or her application, or receive a decision.  Consequently, the Commission finds that the State has failed to respect the rights of the condemned men under Article XXIV of the American Declaration to submit respectful petitions to any competent authority to apply for amnesty, pardon or commutation of sentence, and to obtain a prompt decision thereon.

 

v.          Conclusion

 

175.          Based upon the foregoing facts and the interpretive principles outlined above, the Commission finds that by imposing mandatory death sentences on Messrs. Edwards, Hall, Schroeter and Bowleg, the State violated their rights pursuant to Articles I, XVIII, XXIV, XXV, and XXVI, of the Declaration.

 

176.          More particularly, the Commission concludes that the trial judge imposed the mandatory death penalty on the condemned men, in the absence of any guided discretion to consider their personal characteristics and the particular circumstances of their offenses to determine whether death was an appropriate punishment which violated their rights as established by Articles I, XVIII, XXIV, XXV, and XXVI, of the American Declaration.  The condemned men were also not provided with an opportunity to present representations and evidence as to whether the death penalty was an appropriate punishment in the circumstances of their cases.

 

177.          Rather, the death penalty was imposed upon them based upon the category of crime for which they were convicted and without any principled distinction or rationalization based upon the particular circumstances of their personality or the crime.  Moreover, the propriety of the sentences imposed was not susceptible to any effective form of judicial review, and their executions are now imminent, their convictions for murder having been upheld on appeal by the Appellate Court in The Bahamas.  The Commission therefore concludes that the State has violated the rights of the condemned men under Article I of the Declaration not to be arbitrarily deprived of their lives, and therefore, that the mandatory death sentences of Messrs. Edwards, Hall, Schroeter and Bowleg are unlawful.

 

178.          The Commission further concludes that the State, by sentencing the condemned men to mandatory death penalties absent consideration of their individual circumstances, has failed to respect their rights to humane treatment pursuant to Article XXV and XXVI of the Declaration, and has subjected them to cruel, inhuman, or degrading punishment or treatment in violation of those Articles.  The State sentenced the condemned men to death solely because they were convicted of a predetermined category of crime.  Accordingly, the process to which they have been subjected, would deprive them of their most fundamental rights, their rights to life, without consideration of their personal circumstances and their offenses.  Treating Messrs. Edwards, Hall, Schroeter and Bowleg in this manner abrogates the fundamental respect for humanity that underlies the rights protected under the Declaration, and Articles XXV and XXVI in particular.

 

179.          The Commission also concludes that the State has violated the condemned men’s rights pursuant to Article XXIV of the American Convention by failing to guarantee them an effective right to petition and to apply for amnesty, pardon or commutation of sentence, to make representations, in person or by counsel, to the Advisory Committee on the Prerogative of Mercy, and to receive a prompt decision from the Advisory Committee within a reasonable time prior to their executions.

 

180.          Finally, the Commission concludes that the State has violated the condemned men’s rights to a hearing with due guarantees by a competent, independent and impartial tribunal as established under Articles XVIII, XXV, and XXVI, of the American Declaration.  The condemned men were not provided with an opportunity to make representations and present evidence to the trial judge as to whether their crimes warranted the ultimate penalty of death, and was therefore denied the right to fully answer and defend the criminal accusations against them.

 

181.          It follows from the Commission’s findings that, should the State execute the condemned men pursuant to their mandatory death sentences, this would constitute further egregious and irreparable violations of Articles I, XVIII, XXV, XXVI and of the Declaration.

 

182.          Given its foregoing conclusions as to the legality of the condemned men’s death sentences under Articles I, XVIII, XXIV, XXV and XXVI the Declaration, the Commission does not consider it necessary to determine whether sentencing Messrs. Edwards, Hall, Schroeter and Bowleg, to mandatory death penalties violated their rights to equal protection of the law contrary to Article II, of the Declaration.

 

c.          Articles XI, XXV, and XXVI of the Declaration, Conditions of Detention

 

183.          The Petitioners allege that the State has violated the condemned men’s rights to the preservation of health and to well-being, and not to be subjected to cruel, unusual or degrading punishment or treatment pursuant to Articles XI, XXV and XXVI of the American Declaration, because of the conditions of detention to which they have been subjected.  They argue fursther that these conditions render their executions unlawful under Article I of the Declaration.

 

i.          Mr. Edwards’ Conditions of Detention

 

184.          The Petitioners have made general allegations concerning Mr. Edwards’ conditions of detention and claim that his conditions violate the right to humane treatment guaranteed by Articles XI and XXVI of the American Declaration.  In their original petition dated November 5, 1998, the Petitioners stated that “this ground will either be amplified or withdrawn in due course.”  Subsequently, by letter dated February 5, 1999, the Petitioners informed the Commission that they were having difficulties in obtaining information regarding Mr. Edwards’ conditions of detention, and that they reserved the right to develop this ground of the petition once relevant information was received.  As stated above, the State responded to the allegations in the petition concerning the mandatory nature of the death penalty and the Advisory Committee on the Prerogative of Mercy but did not comment on the Petitioners general claims of inhumane conditions of detention.

 

185.          To date the Commission has not received the forthcoming information from the Petitioners to make a determination on Mr. Edwards’ conditions of detention.  Therefore, the Commission dismisses Mr. Edwards’ claim relating to his conditions of detention.

 

ii.          Mr. Hall’s Conditions of Detention

 

186.          The Petitioners claim that Mr. Hall’s conditions of Detention violate his right to humane treatment pursuant to Article XXVI of the Declaration. In this regard, the Petitioners allege that upon Mr. Hall’s arrest in August of 1996, he was placed in the maximum security unit of the prison where condemned men are detained prior to their execution, and that such detention has continued. 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 cell is unbearable hot and airless and that the door to the cell has bars and that there are metal plates across them which prevent air circulating; and that the time which he spends for exercising is substantially less than that required to be given under the Bahamian Prison Rules.

 

187.          Mr. Hall claims that under Rule 216 of the Bahamian Prison Rules, prisoners should be allowed 1 hour of exercise each day, whereas he is permitted only 10 minutes of exercise four times a week; and that the 10 minutes a day which he 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 Minimum Standards which provides 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.”

 

188.          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 under the supervision of only 2 prison officers, the lack of patient care was perfunctory at best and that prison officers for the most part lack sensitivity and compassion.

 

189.          The Petitioners maintain that prison officers torment the condemned men with 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 constitutes cruel infamous or unusual punishment in violation of Article XXVI of the Declaration.  As indicated above, the State has not responded to the merits of Mr. Hall’s petition, including the claims relating to his inhumane conditions of detention.

 

iii.          Messrs. Schroter and Bowleg’s Conditions of Detention

 

            i.          Pre-trial Conditions of Detention

 

          190.          The Petitioners claim that Messrs. Schroeter’s and Bowleg’s rights to humane treatment pursuant to Articles XI, XXV, and XXVI of the Declaration were violated by the State, because of the conditions under which they were detained both prior to, and subsequent to their trial.  With regard to their pre-trial conditions of detention, Messrs. Schroeter and Bowleg claim that upon their arrests, they were subjected to inhumane treatment, namely, violence by the police, who forced them to sign confessions on their complicity in the crime of murder.  The Petitioners maintain that in Mr. Schroeter’s case, “the police slammed his head against a desk, punched him the ear, grabbed him in his stomach and choked him.”  The Petitioners allege that with regard to Mr. Bowleg, the police placed “a plastic bag 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.”

 

191.          The Petitioners argue that prior to the condemned men’s arrests both men were in good health with no injuries, and that subsequent to their arrests the condemned men complained that they had been beaten by police 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. The Petitioner reports that at the Accident and Emergency Department of the Princess Margaret Hospital both men received treatment for injuries sustained whilst in police custody.  The Petitioners inform that the Casualty sheets containing the treating doctors notes in respect of the victims had been “inadvertently misplaced” and what remained were summarized notes in the Hospital’s Accident and Emergency Ledger.

 

ii.          Post Trial Conditions of Detention

 

192.          The record before the Commission reflects that the Petitioners have made general allegations that Messrs. Schroeter and Bowleg were subjected to inhumane conditions of detention subsequent to their trials, and have cited numerous international jurisprudence in support of their claims.  However, in reviewing the record before the Commission, the Petitioners maintain that Messrs. Schroeter and Bowleg have been detained in solitary confinement, and stated that they would provide the Commission with more detailed information, such as the measurement of their cells, sanitation, ventilation, lighting, and affidavits.  However, to date the Commission has not received the said information, and accordingly dismisses Messrs. Schroeter’s and Bowleg’s claims relating to their post convictions conditions of detention.

 

193.          In considering Mr. Hall’s claims relating to his general conditions of detention, Messrs. Schroeter’s and Bowleg’s claims regarding their pre-trial conditions of detention, that they were subjected to inhumane treatment and inhumane conditions of detention, the Commission is of the view that these conditions of detention, when considered in light of the periods of time for which the condemned men have been held in detention prior to trial and the final disposition of their appeals, fail to satisfy the standard of humane treatment prescribed under Articles XI, XXV, and XXVI of the Declaration.  In this regard, the Inter-American Court considered similar conditions of detention in the Suarez-Rosero Case.[115] In that case, the victim alleged, inter alia, that he was held incommunicado for over one month in a damp and poorly ventilated cell measuring five meters by three, together with sixteen other persons.  In finding that the victim had been subjected to cruel, inhuman or degrading treatment or punishment contrary to Article 5(2) of the Convention, the Court stated as follows:

 

The mere fact that the victim was for 36 days deprived of any communication with the outside world, in particular with his family, allows the Court to conclude that Mr. Suarez-Rosero was subjected to cruel, inhuman and degrading treatment, all the more so since it has been proven that his incommunicado detention was arbitrary and carried out in violation of Ecuador’s domestic laws. The victim told the Court of his suffering at being unable to seek legal counsel or communicate with his family.  He also testified that during his isolation he was held in a damp underground cell measuring approximately 15 square meters with 16 other prisoners, without the necessary hygiene facilities, and that he was obliged to sleep on newspapers; he also described the beatings and threats he received during his detention.  For all those reasons, the treatment to which Mr. Suarez-Rosero was subjected may be described as cruel, inhuman and degrading.[116]

 

194.          While the condemned men in the cases under consideration do not claim to have been held incommunicado, they are held in solitary confinement on death row, and the prison conditions under which they have been detained are strikingly similar to those to which the victim in the Suarez-Rosero case was subjected.  Mr. Hall, has been held in  confined conditions with inadequate hygiene, ventilation and natural light, and is only allowed out of his cell for 10 minutes for exercise four days per week.  Messrs. Schroeter and Bowleg allege to have been abused by the police prior to their trials. These observations, together with the length of time over which the condemned men were held in these conditions, suggest that the treatment of the condemned men has failed to meet the minimum standards under Articles XI, XXV, and XXVI of the Declaration, which apply irrespective of the nature of the conduct for which the person in question has been imprisoned[117] and regardless of the level of development of a particular state.[118]

 

195.          The Commission considers that Mr. Hall’s claims in relation to his conditions of detention, and Messrs. Schroeter’s and Bowleg’s claims in respect of their pre-trial conditions of detention should be evaluated in light of minimum standards articulated by international authorities for the treatment of prisoners, including those prescribed by the United Nations. More particularly, Rules 10, 11, 12, 15, 21, and 31 of the United Nations Standard Minimum Rules for the Treatment of Prisoners[119] (UN Minimum Rules) provide for basic minimum standards for prisoners in respect of accommodation, hygiene, exercise, and their treatment and punishment during detention and incarceration and states as follows:

 

10.     All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation.

 

11. In all places where prisoners are required to live or work,

 

(a)     the windows shall be large enough to enable prisoners to read or work by natural light, and shall be so constructed that they can allow the entrance of fresh air whether or not there is artificial ventilation;

 

(b)      Artificial light shall be provided sufficient for the prisoners to read or work without injury to eyesight.

 

12.     The sanitary installations shall be adequate to enable every prisoner to comply with the needs of nature when necessary and in a clean and decent manner.

 

15.     Prisoners shall be required to keep their persons clean, and to this end they shall be provided with water and with such toilet articles as are necessary for health and cleanliness.

 

21. (1) Every prisoner who is not employed in outdoor work shall have at least one hour of suitable exercise in the open air daily if the weather permits.

 

(2)     Young prisoners, and others of suitable age and physique, shall receive physical and recreational training during the period of exercise. To this end space, installations and equipment should be provided.

 

31.    Corporal punishment, punishment by placing in a dark cell, and all cruel, inhuman or degrading punishments shall be completely prohibited as punishments for disciplinary offences.

 

continued...

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[43] In the Commission’s 1999 Annual Report, pages 117, 184, and 190, the Commission declared that it was competent to examine the claims in the petitions relating to the alleged violations of the Declaration, because the Declaration became the source of legal norms for application by the Commission upon The Bahamas becoming a Member State of the Organization of American States in 1982. In addition, the Commission declared that it has authority under the Charter of the Organization of American States, Article 20 of the Commission's Statute, and the Commission's Regulations to entertain the alleged violations of the Declaration raised by the Petitioner against the State, which relate to acts or omissions that transpired after the State joined the Organization of American States.  Consequently, the Commission declared that it has jurisdiction ratione temporis, ratione materiae, and ratione personae to consider the violations of the Declaration alleged and declared the petitions admissible pursuant to Articles 37 and 38 of its Regulations, at its 104th and 106th Regular Sessions respectively.  See  Messrs. Schroeter’s and Bowleg’s case, Nº 12.086, Report Nº 123/99, was declared admissible at the Commission’s 104th Regular Sessions.  Mr. Edwards’ case Nº 12.067, Report Nº 24/00, and Mr. Hall’s case Nº 12.068, Report Nº 25/00 were declared admissible at the Commission’s 106th Regular Sessions.

[44] See I/A Court H.R., Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights, Advisory Opinion OC-10/89 of July 14, 1989, Inter-Am.Ct.H.R. (Ser. A) No. 10 (1989), para. 37 (pointing out that in determining the legal status of the American Declaration, it is appropriate to look to the inter-American system of today in the light of the evolution it has undergone since the adoption of the Declaration, rather than to examine the normative value and significance which that instrument was believed to have had in 1948). See also ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa ) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16 ad 31 stating that "an international instrument must be interpreted and applied within the overall framework of the juridical system in force at the time of the interpretation ").

[45] Advisory Opinion OC-16/99, supra, para. 114, citing, inter alia, the decisions of the European Court of Human Rights in Tryer v. United Kingdom (1978), Marckx v. Belgium (1979), and Louizidou v. Turkey (1995).

[46] See e.g. Canada Report, supra, para. 38 (confirming that while the Commission clearly does not apply the American Convention in relation to member States that have yet to ratify that treaty, its provisions may well be relevant in informing an interpretation of the principles of the Declaration).

[47] See U.N.H.R.C., Baboheram-Adhin et al. v. Suriname, Communications Nos. 148-154/1983, Adopted 4 April 1985, para. 14.3 (observing that the right to life under Article 6(1) of the International Covenant on Civil and Political Rights is the “supreme right of the human being”).

[48] Id., para. 14.3 (finding that the law must strictly control and limit the circumstances in which a person may be deprived of his life by the authorities of the state.); Report by the U.N. Special Rapporteur on Extra-judicial Executions, Mr. Bacre Waly Ndiaye, submitted pursuant to Commission on Human Rights Resolution 1994/82, Question of the Violation of Human Rights and Fundamental Freedoms in any part of the World, with particular reference to Colonial and Other Dependent Countries and Territories, U.N. Doc.E/CN.4/1995/61 (14 December 1994) (hereinafter “Ndiaye Report”), para. 378 (commenting upon fair trial standards relating to capital punishment as follows:

While in many countries the law in force takes account of the standards of fair trials as contained in the pertinent international instruments, this alone does not exclude that a death sentence may constitute an extra-judicial, summary or arbitrary execution. It is the application of these standards to each and every case that needs to be ensured and, in case of indications to the contrary, verified, in accordance with the obligation under international law to conduct exhaustive and impartial investigations into all allegations of violation of the right to life.)

[49] I/A Court H.R., Restrictions to the Death Penalty (Arts. 4(2) and 4(4) American Convention on Human Rights), Advisory Opinion OC-3/83, (8 September 1983), Annual Report 1984, p. 31, para. 57.

[50] I/A Comm. H.R., Santiago Marzioni, Report Nº 39/96, Case Nº 11.673 (Argentina), 15 October 1996, Annual Report 1996, p. 76.

[51] See also William Andrews, (United States),Case Nº 11.139, Report Nº 57/96, Annual Report of the Inter-American Commission 1997, p. 614, OEA/Ser.L/V/II.98, Doc. 7 rev., April 13, 1998; Rudolph Baptiste, (Grenada), Case Nº 11.743, Report Nº 38/00 Annual Report of the Inter-American Commission on Human Rights 1999, Volume I, OEA/Ser.L/V/II.106, Doc. 3 rev., April 13, 2000; and Desmond McKenzie, Case Nº 12.023, Andrew Downer and Alphonso Tracey, Case Nº 12.044, Carl Baker, 12.107, Dwight Fletcher, Case Nº 12.126, and Anthony Rose, Case Nº 12.146,  Report Nº 41/00 (Jamaica),  p. 918, Annual Report of the Inter-American Commission on Human Rights 1999, Volume II, OEA/Ser.L/V/II.106, Doc. 3 rev., April 13, 2000.

[52] Revised Edition 1987, Prepared under the authority of the Law Reform and Revision Act 1975, Chapter 77, Penal Code 77, Title XX, Homicide and Similar Crimes, page 1124. Title II  of the General And Special Rules of Criminal Law of The Bahamas refers to what constitutes “intent” to commit a crime, and provides:

11. (1) If a person does an act for the purpose of thereby causing or contributing to cause an event, he intends to cause that event, within the meaning of this Code, although either in fact or in his belief, or both in fact and also in his belief, the act is unlikely to cause or to contribute to cause the event.

(2) If a person does an act voluntarily, believing that it will probably cause or contribute to cause an event, he intends to cause that event, within  the meaning of this Code, although he does not do the act for the purpose of causing or of contributing to cause the event.

(3) If a person does an 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.

[53] Id. Section 312 of The Statute of Law of The Bahamas Criminal Code at page  1124, contains a proviso to the death penalty for a crime of murder.  The proviso states:

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.

[54] Article 4 of the American Convention provides as follows:

Article 4. Right to Life

(1) Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.

(2) In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes and pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime. The application of such punishment shall not be extended to crimes to which it does not presently apply.

(3) The death penalty shall not be reestablished in states that have abolished it.

(4) In no case shall capital punishment be inflicted for political offenses or related common crimes. Capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age or over 70 years of age; nor shall it be applied to pregnant women.

(5) Every person condemned to death shall have the right to apply for amnesty, pardon, or commutation of sentence, which may be granted in all cases.  Capital punishment shall not be imposed while such a petition is pending decision by the competent authority.

[55] Rio de Janeiro, December 8, 1947, (s) Francisco Campos, Jose Joaquin Caicedo Castilla, E. Arroyo Lameda, Charles G. Fenwick.

[56] Id. Travaux Prepartoire, at 2.

[57] Article 4 of the American Convention provides as follows:

Article 4. Right to Life

(1) Every person has the right to have his life respected.  This right shall be protected by law and, in general, from the moment of conception.  No one shall be arbitrarily deprived of his life.

(2) In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes and pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime.  The application of such punishment shall not be extended to crimes to which it does not presently apply.

(3) The death penalty shall not be reestablished in states that have abolished it.

(4) In no case shall capital punishment be inflicted for political offenses or related common crimes.

(5) Capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age or over 70 years of age; nor shall it be applied to pregnant women.

(6)            Every person condemned to death shall have the right to apply for amnesty, pardon, or commutation of sentence, which may be granted in all cases.  Capital punishment shall not be imposed while such a petition is pending decision by the competent authority.

[58] Advisory Opinion OC-3/83, supra, at 31, para. 52.

[59] Article 6 of the ICCPR provides as follows:

(1) Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

(2) In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide.  This penalty can only be carried out pursuant to a final judgment rendered by a competent court.

(3) When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorize any State Party to the present Convention to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.

(4) Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

(5) Sentence of death shall not be imposed for crimes committed by persons below eighteen years of age and shall not be carried out on pregnant women.

(6) Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant.

[60] See e.g. Baboheram-Adhin et al. v. Suriname, supra, para. 14.3.

[61] See e.g. U.N.H.R.C., Anthony McLeod v. Jamaica, Communication Nº 734/1997, U.N. Doc. Nº CCPR/C/62/734/1997.

[62] See e.g. U.N.H.R.C., Patrick Taylor v. Jamaica, Communication Nº 707/1996, U.N. Doc. Nº CCPR/C/60/D/707/1996.

[63] Ndiaye Report, supra, para. 377. With respect to international sentencing standards more generally, the International Criminal Tribunal for the Former Yugoslavia provides one of the few modern examples of an international tribunal adjudicating serious violations of international humanitarian law, including genocide. While the penalty imposed by the Tribunal is limited to imprisonment, the Tribunal’s governing statute specifically provides that that’ “[i]n imposing the sentences, the Trial Chambers should take into account such matters as the gravity of the offence and the individual circumstances of the convicted person.” Statute for the International Criminal Tribunal for the former Yugoslavia, Annex to the Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, U.N., Doc. S/25704/Add.1/Corr.1 (1993), Art. 24. See similarly Statute for the International Criminal Tribunal for Rwanda, Annex to Security Council Resolution 955, U.N. SCOR, 49th Sess., 3453 mtg., U.N. Doc. S/RES/955 (1994), Art. 23.

[64] See e.g. Clifton Wright, and  William Andrews supra.

[65] Woodson v. North Carolina 49 L Ed 2d 944 (U.S.S.C.).

[66] Id. at 31, para. 55.

[67] See e.g. Roach and Pinkerton v. US, supra; William Andrews v. USA, supra.

[68] See William Andrews v. USA, supra, para. 177.

[69] See Andrews v. USA, supra, para. 172 (finding that in capital punishment cases, states have an "obligation to observe rigorously all the guarantees for an impartial trial.")

[70] See e.g. Roach and Pinkerton v. US, supra, para. 61.

[71] In 1953, the British Commission on Capital Punishment noted that “there is perhaps no single class of offenses that varies so widely both in character and culpability as the class comprising those which may fall within the comprehensive common law definition of murder no one would now dispute that for many of these crimes it would be monstrous to inflict the death penalty. The view is widely accepted that this penalty should be reserved for the more heinous offenses of murder.” Royal Commission on Capital Punishment, September 1953 Cmnd 8932, Exh. 20. Even in those jurisdictions in which a distinction has been drawn between capital and non-capital murder, experience indicates that varying degrees of culpability exist within categories of capital murder which may warrant discriminate application of the death penalty. See e.g. Woodson v. North Carolina, 49 L ED 2d 944, 956, n. 31 (indicating that data compiled on discretionary jury sentencing of persons convicted of capital murder in the United States reveal that the penalty of death is generally imposed in less than 20% of the cases.)

[72] See e.g. R. v. Cunningham [1982] A.C. 566 (P.C.).

[73] Webster’s Third International Dictionary.

[74] U.N.H.R.C., Kindler v. Canada, Communication Nº 470/1991, U.N. Doc. CPR/C/48/D/470/1991 (1993).

[75] Id., para. 14.6.

[76] Advisory Opinion OC-16/99, supra, para. 135. See similarly UNHRC, Champagnie, Palmer and Chisholm v. Jamaica, Communication No. 445/991, U.N. Doc. CCPR/C/51/D/445/1991 (1994), para. 9 (finding that in capital punishment cases, "the obligations of states parties to observe vigorously all the guarantees of a fair trial set out in Article 14 of the Covenant [on Civil and Political Rights] admits of no exception.").

[77] Case Nº 11.743, Report Nº 38/00, at 721 (Grenada), Annual Report of the Inter-American Commission on Human Rights 1999, Volume I, OEA/Ser.L/V/II.106, Doc. 3 rev., April 13, 2000.

[78] Report Nº 41/00, Case Nos. 12.023, 12.044, 12.107, 12.146, Annual Report of the Inter-American Commission on Human Rights 1999, Volume II, OEA/Ser.L/V/II.106, Doc. 3 rev., April13, 2000.

[79] The Preamble to the Declaration and Convention recognizes that “the essential rights of man are not derived from one’s being a national of a certain state, but are based upon the attributes of the human personality.”

[80] The Commission refers in this regard to the interpretative approach advocated by the European Court of Human Rights, that its governing Convention is “a living instrument which must be interpreted in light of present-day conditions.”  See Eur. Court H.R., Tyrer v. United Kingdom (1978) 3 E.H.R.R. 1 at para. 31.

[81] U.N.H.R.C., Lubuto v. Zambia, Communication Nº 390/1990, U.N. Doc. CCPR/C/55/D/390/1990/Rev. 1, para. 7.2.

[82] ICCPR, Article 6, supra.

[83] Ndiaye Report, supra, para. 377.  With respect to international sentencing standards more generally, the International Criminal Tribunal for the Former Yugoslavia provides one of the few modern examples of an international tribunal adjudicating serious violations of international humanitarian law. While the penalty imposed by the Tribunal is limited to imprisonment, the Tribunal’s governing statute specifically provides that’ “[i]n imposing the sentences, the Trial Chambers should take into account such matters as the gravity of the offence and the individual circumstances of the convicted person.”  Statute for the International Criminal Tribunal for the former Yugoslavia, Annex to the Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, U.N., Doc. S/25704/Add.1/Corr.1 (1993), Art. 24. See similarly Statute for the International Criminal Tribunal for Rwanda, Annex to Security Council Resolution 955, U.N. SCOR, 49th Sess., 3453 mtg., U.N. Doc. S/RES/955 (1994), Art. 23.

[84] Woodson v. North Carolina 49 L Ed 2d. 944.

[85] The Constitution of the United States, Amendment VIII (1791) (providing “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”).

[86] Id. Amendment XIV, Section I (providing “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”).

[87] Id. at 960. In its decision in the case Furman v. Georgia, 408 U.S. 238, the Supreme Court declared the vesting of standardless sentencing discretion in the jury in imposing capital sentences as contrary to the Eighth and Fourteenth Amendments. In rejecting North Carolina’s contention in Woodson that the inadequacies identified in Furman were remedied by withdrawing all sentencing discretion from juries in capital cases, the Court suggested that the mandatory sentencing scheme was no more rational, as the statute provided “no standards to guide the jury in its inevitable exercise of the power to determine which first-degree murderers shall live and which shall die,” and provided no way for the judiciary to “check arbitrary and capricious exercise of that power through a review of death sentences.”

[88] See 408 US, at 286-291, 33 L Ed 2d 346, 92 S Ct 2726 (Brennan J. concurring); id., at 306, 33 L Ed 2d 346, 92 S Ct 2726 (Stewart, J., concurring).

[89] Pennsylvania ex rel. Sullivan v. Ashe, 302 US 51, 55, 82 L Ed43, 58 S Ct 59 (1937).

[90] See Williams v. New York, 337 US, at 247-249, 93 L Ed 1337, 69 S Ct 1079; Furman v. Georgia, 408 US, at 402-3, 33 L Ed 2d 346, 92 S Ct 2726 (Burger C.J., dissenting).

[91] See Trop v. Dulles, 356 US, at 100, 2 L Ed 2d 630, 78 S Ct 590 (plurality opinion).

[92] Id. at 961.  See also Roberts (Stanislaus) v. Louisiana, 428 U.S., 325, 333, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).

[93] The State v. Makwanyane and McHunu, Judgment, Case Nº CCT/3/94 (6 June 1995) (Constitutional Court of the Republic of South Africa).

[94] Section 277 of the Criminal Procedure Act Nº 51 provided:

Sentence of Death

(1) The sentence of death may be passed by a superior court only and only in the case of a conviction for:

(a) murder;

(b) treason committed when the Republic is in a state of war;

(c) robbery or attempted robbery, if the court finds aggravating circumstances to have been present;

(d) kidnapping;

(e) child-stealing;

(f) rape.

(2) The sentence of death shall be imposed

(a) after the presiding judge conjointly with the assessors (if any), subject to the provisions of s. 145(4)(a), or, in the case of a trial by a special superior court, that court, with due regard to any evidence and argument on sentence in terms of section 274, has made a finding on the presence or absence of any mitigating or aggravating factors; and

(b) if the presiding judge or court, as the case may be, with due regard to that finding, is satisfied that the sentence of death is the proper sentence.

[95] Id. pp. 32-36.  The Court went on to conclude that additional factors such as discrimination and the “imperfection” inherent in criminal trials may also lead to arbitrary results in the imposition of the death penalty, and determined further that such arbitrary results could not be appropriately remedied through strict due process, as had been endeavored in the United States. Id. at 36-43.

[96] Criminal Procedure Act Nº 51 of 1977, section 322(2A) (as amended by section 13 of Act Nº 107 of 1990).

[97] Id. section 316A(4)(a).

[98] S. v Nkwanyana and Others 1990 (4) SA 735 (A) at 743E-745A.

[99] S v. Masina and Others 1990 (4) SA 709 (A) at 718G-H.

[100] S v. J 1989 (1) SA 669 (A) at 682G.  “Generally speaking, however, retribution has tended to yield ground to the aspects of correction and prevention, and it is deterrence (including prevention) which has been described as the ‘essential’, ‘all important’, ‘paramount’, and ‘universally admitted’ object of punishment.” Id. at 682I-J (cited with approval in S v P 1991 (1) SA 517 (A) at 523G-H. CF. R. v Swanepoel 1945 AD 444 at 453-455.

[101] Per Holmes JA in S v Letsolo 1970 (3) SA 476 (A) at 477B (cited with approval by Nicholas AJA in S v Dlamini 1992 (1) SA 18 (A) at 31I-32A in the context of the approach to sentencing under section 322(2A)(b) of the Criminal Procedure Act Nº 51 of 1977).

[102] S v Senonohi 1990 (4) SA 727 (A) at 734F-G; S v Nkwanyana, supra at 749A-D.

[103] Id. at 35-36.

[104] Bachan Singh v. State of Punjab, (1980) 2 S.C.C. 475.

[105] Id. at 509-510.

[106] Id. at 516.

[107] Id. at 515.

[108] Id. at 534.

[109] Statutory Instruments, 1973 Nº 1080, Caribbean and North Atlantic Territories, The Bahamas Independence Order 1973, at 58.

[110] See Reckley v. Minister of Public Safety (Nº 2) [1996] 2 W.L.R. 281 at 289-291 (finding that the exercise of the Prerogative of Mercy by the Minister of Public Safety in The Bahamas involved an act of mercy that was not the subject of legal rights and was therefore not judicable.); de Freitas v. Benny [1976] 2 A.C. 239.

[111] See similarly Universal Declaration on Human Rights, Article 14 (providing for the right of every individual to "seek and to enjoy in other countries asylum from persecution.").

[112] I/A. Comm. H.R., Haitian Interdiction Case (United States), Case Nº 10.675 (March 13 1997),  Annual Report 1996, para. 155.

[113] See e.g. Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, paras. 189-219 (prescribing basic requirements for the procedures for determining refugee status, including the right of an applicant to be given the necessary facilities for submitting his case to the authorities concerned, and that the applicant be permitted to remain in the country pending a decision on his initial request for refugee status); Council of Europe, Resolution on minimum guarantees for asylum procedures, Brussels, 21 June 1995, Articles 10, 12, 14, 15, 23  (prescribing common procedural guarantees to be provided by Member States of the European Union in processing asylum application, including the right of an asylum-seeker, at the border or otherwise, to have an opportunity to lodge his asylum application as early as possible, to remain in the territory of the state in which his application has been lodged or is being examined as long as the application has not been decided upon, to be given the opportunity of a personal interview with an official qualified under national law before a final decision is taken on the asylum application, and to have the decision on the asylum application communicated to the asylum-seeker in writing.).

[114] In the State of Ohio, for example, clemency review has been delegated in large part to the Ohio Adult Parole Authority (OAPA). In the case of an inmate under sentence of death, the OAPA must conduct a clemency hearing within 45 days of the scheduled date of execution. Prior to the hearing, the inmate may request an interview with one or more parole board members. The OAPA holds a hearing, completes its clemency review, and makes a recommendation to the Governor.  If additional information later becomes available, the OAPA may in its discretion hold another hearing or alter its recommendation. See Ohio Constitution, Art. III, s. 2, Ohio Revised Code Ann., s. 2967.07 (1993).  See also Ohio Adult Parole Authority v. Woodward, Court File Nº 96-1769 (25 March 1998)(U.S.S.C.) (finding that Ohio's clemency procedures do not violate the U.S. Constitution's Due Process Clause).

[115] I/A Court H.R., Suarez Rosero Case, Judgment, 12 November 1997, Annual Report 1997, at p. 283.

[116] Id., at pp. 302-3, para. 98.

[117] See e.g. Eur. Court H.R., Ahmed v. Austria, Judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI, p. 220, para. 38.

[118] See similarly U.N.H.R.C., Mukong v. Cameroon, Communication Nº 458/1991, U.N. Doc. Nº CCPR/C/51/D/458/1991 (1994), para. 9.3 (observing that certain minimum standards governing conditions of detention for prisoners, as prescribed by the International Covenant on Civil and Political Rights and reflected in the U.N. Standard Minimum Rules for the Treatment of Prisoners, must be observed regardless of a state party's level of development).

[119] United Nations Standard Minimum Rules for the Treatment of Prisoners, adopted August 30, 1955 by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, U.N. Doc. A/CONF/611, annex I, E.S.C. res. 663C, 24 U.N. ESCOR Supp. (Nº 1) at 11, U.N. Doc. E/3048 (1957), amended E.S.C. res. 2076, 62 U.N. ESCOR Supp. (Nº 1) at 35, U.N. Doc E/5988 (1977).