report Nº
25/00 I.
SUMMARY
1.
This report concerns a petition presented to the Inter-American
Commission on Human Rights (hereinafter “the Commission”) by Gary
Hickinbottom, Solicitor, of Messrs. Cameron McKenna, Solicitors, in
London, United Kingdom (hereinafter “the petitioners”) by letter
dated December 3, 1998, on behalf of Omar Hall.
The petition alleges that the Commonwealth of The Bahamas
(hereinafter “the State” or “The Bahamas”) violated Mr. Hall’s
rights under the American Declaration of the Rights and Duties of Man
(hereinafter “the Declaration”). 2.
The petitioners state that Mr. Hall, a national of The Bahamas,
was convicted of murder on September 2, 1996, and a mandatory death
sentence was imposed on him. According to the petitioners, Mr. Hall
appealed to the Court of Appeal of The Bahamas against his conviction
and sentence, and his appeal was dismissed by the Court on May 2, 1997,
and the judgment was issued on July 23, 1997. Mr. Hall then petitioned
the Judicial Committee of the Privy Council for Special Leave to Appeal
his conviction and sentence, and the Privy Council dismissed his
petition on June 3, 1998. 3.
The petitioners claim that Mr. Hall exhausted the domestic
remedies of The Bahamas when the Privy Council dismissed his petition on
June 3, 1998. The petitioners also allege that the State has violated
Mr. Hall’s rights under Articles I, II, XVII, XVIII, and XXVI of the
Declaration. 4.
In their petition, the petitioners requested that the Commission
recommend to the State that it commute Mr. Hall’s death sentence so
that he can be removed from the death row regime in Foxhill Prison.
The petitioners also invited the Commission to recommend to the
State that it amend its penal code to restrict the death penalty to the
most heinous forms of murder and to institute a sentencing hearing in
which aggravating or mitigating factors can be examined.
In addition, the petitioners asked the Commission to reach a
decision in the case as soon possible, and they requested that the
Commission make the strongest possible representations to the State to
stay the execution of Mr. Hall until the Commission completes its
investigation of the case.
5.
In this report, the Commission concludes that the petition is
admissible pursuant to Articles 37 and 38 of the Commission's
Regulations. II.
PROCEEDINGS BEFORE THE COMMISSION 6.
Upon receipt of the petition and submissions of the parties, the
Commission complied with the requirements of its Regulations. The
Commission studied the petition, and requested information from the
parties, and forwarded the pertinent parts of the petitioners’
submissions to the State. 7.
On December 10, 1998, the Commission forwarded the pertinent
parts of the petition to the State and requested its observations within
90 days with regard to the exhaustion of domestic remedies and the
claims raised in the petition. The Commission also requested that the
State stay Mr. Hall’s execution pending the Commission's investigation
of the alleged facts. On
October 19, 1999, the Commission reiterated its request to the State for
its observations within 30 days with regard to the claims raised in the
petition. 8.
To date, the Commission has not received any response from the
State in respect of the petitioners' petition, despite the Commission's
requests for information dated December 10, 1998, and October 19,
1999.
III.
POSITIONS OF THE PARTIES ON ADMISSIBILITY A.
Position of the petitioners 9.
The petitioners allege violations of
Articles I, II, XVII, XVIII,
and XXVI, of the
American Declaration, in connection with the trial, conviction and
sentencing of Mr. Hall for the crime of murder in The Bahamas. In
addition, the petitioners argue that the mandatory death sentence
imposed by the State pursuant to its penal law on every person convicted
of murder, and the State’s pardon and commutation procedure, violate
Mr. Halls’ rights under Articles I, II, XVII,
and XVIII, of the Declaration, and his right to humane treatment
under Article XXVI of the Declaration.
More particularly, the petitioners argue that the domestic law of
The Bahamas does not provide the victims with the right to make
representations to the Advisory Committee on the Prerogative of Mercy,
the body in The Bahamas with authority to grant amnesties, pardons and
commutations of sentences. 10.
The petitioners also argue that Mr. Hall has suffered cruel and
inhuman treatment and punishment pursuant to Article XXVI of the
Declaration, because he has been incarcerated for a total of over 3
years and nine months. The
petitioners claim that Mr. Hall was incarcerated on remand from the time
of his arrest in July 1994, until he was “bailed” in January 1996.
The petitioners also claim that subsequent to Mr. Hall’s trial in
1996, he has been incarcerated on death row up to the present time. 11.
The petitioners allege that Mr. Hall did not receive a fair trial
pursuant to Article XXVI of the Declaration, because of the imposition
of his mandatory death sentence, and because Mr. Hall suffered prejudice
due to biased reporting in the daily newspapers and television at the
time of his trial. The
petitioners claim that such coverage meant that Mr. Hall was incapable
of receiving a fair trial. 12.
The petitioners argue that the petition is admissible because Mr.
Hall has exhausted the domestic remedies of The Bahamas.
The petitioners contend that Mr. Hall appealed his conviction and
sentence to the Court of Appeal of The Bahamas, and the Court dismissed
his appeal on May 2, 1997, the judgment in his case was issued on July
23, 1997. Mr. Hall then petitioned the Privy Council for Special Leave
to Appeal his conviction and sentence which was dismissed on June 3,
1998. B.
The position of the State
13.
The State has not provided the Commission with observations with
regard to the admissibility
or merits of the petition, despite the Commission’s communications to
the State dated December 10, 1998, and October 19, 1999. IV.
ANALYSIS ON ADMISSIBILITY A.
Commission’s competence 14.
In their petition, the petitioners allege violations of Articles
I, II, XVII, XVIII,
and XXVI of the Declaration. Article 26 of the Commission's
Regulations provides that “[a]ny person or group of persons, or any
non-governmental entity legally recognized in one or more member states
of the Organization, may submit petitions to the Commission, in
accordance with these Regulations, on one’s own behalf or on behalf of
third persons, with regard to alleged violations of a human right
recognized, as the case may be, in the American Convention on human
Rights or in the American Declaration of the Rights and Duties of
Man.” The petition in this case was lodged by the petitioners,
Solicitors from London, United Kingdom, on behalf of Mr. Hall, who is a
national of the State of The Bahamas.
15.
The Declaration became the source of legal norms for application
by the Commission[1]
upon The Bahamas’ becoming a Member State of the Organization of
American States in 1982. In addition, the Commission has authority under
the Charter of the Organization of American States, Article 20 of the
Commission's Statute,[2]
and the Commission's Regulations to entertain the alleged violations of
the Declaration raised by the petitioners against the State, which
relate to acts or omissions that transpired after the State joined the
Organization of American States. Consequently, the Commission has ratione temporis, ratione
materiae, and ratione personae
jurisdiction to consider the violations of the Declaration alleged in
this case. Therefore, the Commission declares that it is competent to
address the petitioners' claims relating to violations of the
Declaration. B.
Other grounds of admissibility
a.
Exhaustion of domestic remedies 16.
The petitioners argue that the petition is admissible because Mr.
Hall has exhausted the
domestic remedies of The Bahamas. The
petitioners contend that Mr. Hall appealed his conviction and sentence
to the Court of Appeal of The Bahamas, and the Court dismissed his
appeal on May 2, 1997, the judgment in his case was issued on July 23,
1997. Mr. Hall then petitioned the Privy Council for Special Leave to
Appeal his conviction and sentence which was dismissed on June 3, 1998.
17.
The State has not provided the Commission with observations with
regard to the admissibility, including the exhaustion of domestic
remedies or merits of the petition, despite the Commission’s
communications to the State dated December 10, 1998, and October 19,
1999. 18.
In accordance with generally recognized principles of
international law,[3]
the Commission finds that the State tacitly waived its right to object
to the admissibility of the petitioners' petition based upon the
exhaustion of domestic remedies rule. Consequently, the Commission finds
that the petition is admissible under Article 37(1) of the Commission's
Regulations.[4]
b.
Timeliness of petition 19.
As concluded, Mr. Hall’s petition
for Special Leave to Appeal to the Privy Council was dismissed by
it on June 3, 1998. The
Commission concludes that the petition was filed within six months of
the final ruling in the case and find that it is therefore admissible
pursuant to Article 38 of the
Commission's Regulations. c.
Duplication of procedures 20. The record
before the Commission does not indicate that the subject of the
petitioners' claims is pending in another international procedure, or
duplicates a petition pending or already examined by the Commission or
another international organization. The State has not provided any
observations on the issue of duplication of procedures. The Commission
therefore finds that the petition is not inadmissible under Article
39(1) of its Regulations.[5]
d.
Colorable claim 21. The petitioners
have alleged that the State has violated Mr. Halls’ rights under
Articles I, II, XVII, XVIII, and XXVI of the Declaration. In addition,
the petitioners have provided factual allegations that if proven would
tend to establish that the alleged violations may be well-founded. The
Commission therefore concludes, without prejudging the merits of the
case, that the petitioners' petition is not barred from consideration
under Article 41(c) of the Commission's Regulations.[6]
e.
Conclusion on admissibility 22.
As noted previously, the State has not replied to the
Commission’s communications to it dated December 10, 1998, and October
19, 1999, which requested that the State provide the Commission with
information that the State deemed relevant pertaining to the exhaustion
of domestic remedies and the claims raised in the petitions. As a
consequence, in determining the admissibility of this case, the
Commission has presumed 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.[7]
23.
In accordance with the foregoing analysis, and without prejudging
the merits of this petition, the Commission decides to declare
admissible the alleged violations of the Declaration presented on behalf
of Mr. Hall. THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, DECIDES
TO: 1.
Declare the petition admissible with respect to the claimed
violations of Articles I, II, XVII, XVIII, and XXVI of the American
Declaration. 2.
Transmit this report to the State of The Bahamas and to the
petitioners. 3.
Place itself at the disposal of the parties concerned with a view
to reaching a friendly settlement of the matter. 4.
Maintain in effect the precautionary measures issued on December
10, 1998. 5.
To make public this report and to publish it in its Annual Report
to the OAS General Assembly. Done and
signed in the city of Washington, D.C., on the 7th day of the month of
March, 2000 (Signed): Hélio Bicudo, Chairman; Claudio Grossman,
First Vice-Chairman; Juan Mendez, Second Vice-Chairman; Commissioners:
Marta Altolaguirre, Robert K. Goldman, Peter Laurie and Julio Prado
Vallejo. [ Table of Contents | Previous | Next ] [1]
I/A Court H.R., Advisory Opinion
OC-10/89 (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),
14 July 1989. [2]
Article 20 of the Commission’s Statute provides as follows: In
relation to those member states of the Organization that are not
parties to the American Convention on Human Rights, the Commission
shall have the following powers, in addition to those designated in
article 18: (a)
To pay particular attention to the observance of the human
rights referred to in Articles I, II, III, IV, XVIII, XXV, and XXVI
of the American Declaration of the rights and Duties of Man; (b)
To examine communications submitted to it and any other
available information, to address the government of any member state
not a Party to the Convention for information deemed pertinent by
this Commission, and to make recommendations to it, when it finds
this appropriate, in order to bring about more effective observance
of fundamental human rights; and, (c)
To verify, as a prior condition to the exercise of the powers
granted under subparagraph b. above, whether the domestic legal
procedures and remedies of each member state not a Party to the
Convention have been duly applied and exhausted. [3]
See I/A Court H.R., Viviana Gallarado et al., Judgment
of November 13, 1981, No. G 101/81. Series A, para. 26. [4]
Article 37(1) of the Commission’s Regulations provides that:
“For a petition to be admitted by the Commission, the remedies
under domestic jurisdiction must have been invoked and exhausted in
accordance with the general principles of international law. [5]
Article 39(1) of the Commission’s Regulations provides that the
Commission shall not consider a petition in cases where the subject
of the petition is not pending in another international procedure
under an international governmental organization of which the State
concerned is a member, or essentially duplicates a petition pending
or already examined and settled by the Commission or by another
international governmental organization of which the state concerned
is a member. [6]
Article 41(c) of the Commission’s Regulations provides that the
Commission shall declare a petition inadmissible if the petition is
manifestly groundless or inadmissible on the basis of the statement
by the petitioner himself or the government. [7]
Article 42 of the Commission's Regulations provides that "[t]he
facts reported in the petition whose pertinent parts have been
transmitted to the government of the State in reference shall be
presumed to be true if, during the maximum period set by the
Commission under the provisions of Article 34 paragraph 5, the
government has not provided the pertinent information, as long as
other evidence does not lead to a different conclusion."
Article 34(5) of the Commission’s Regulations provides that
"[t]he Commission shall request the affected government to
provide the information requested within 90 days after the date on
which the request is sent."
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