Brian Schroeter and Jeronimo Bowleg v. Bahamas, Case 12.086, Report Nº 123/99, OEA/Ser.L/V/II.106 Doc. 3 rev. at 190 (1999).
BRIAN SCHROETER AND JERONIMO BOWLEG
September 27, 1999
This report concerns a petition presented to the Inter-American Commission
on Human Rights (hereinafter “the Commission”) by Anthony Kenny Esq., Solicitor,
of Messrs. Lovell White Durant, Solicitors, in London, United Kingdom, (hereinafter
as “the petitioners”) by letter dated January 7, 1999, on behalf of Messrs.
Brian Schroeter and Jeronimo Bowleg (hereinafter "the victims").
The petition alleges that the Commonwealth of The Bahamas (hereinafter “the
State” or “The Bahamas”) violated the victims' rights under the American Convention
on Human Rights (hereinafter “the Convention”) and the American Declaration
on the Rights and Duties of Man (hereinafter “the Declaration”).
The petitioners state that the victims, who are nationals of The Bahamas,
were convicted of murder on June 17, 1994, and a mandatory death sentence
was imposed on them. According
to the petitioners, the victims appealed to the Court of Appeal of The Bahamas
on September 4, 1996. The Court
dismissed their appeals on July 23, 1997. The victims then petitioned the
Judicial Committee of the Privy Council for Special Leave to Appeal their
convictions, and the Privy Council dismissed their petitions on June 3, 1998.
The petitioners argue that the petition is admissible because the victims
have satisfied the requirements of Articles 46(1) of the Convention and 37(1)
and 38(2) of the Commission’s Regulations. The petitioners also argue that
the State has violated the victims’ rights under Articles 4(1) 4(2), 4(6)
5, 7(5), 8 (1), 8(2), 24 and 25 of the Convention and Articles I, II , XVII,
XVIII, XI, XXV, and XXVI of the Declaration.
In their petition, the petitioners requested that the Commission issue
Precautionary Measures pursuant to Article 29(2) of its Regulations against
the State, and ask that the State take no steps to execute the victims to
avoid irreparable damage to them while their cases are pending determination
before the Commission. The petitioners also requested that the Commission
declare that the State violated the victims' rights under the Convention and
the Declaration, and that they be provided with an effective remedy entailing
their release from detention. Moreover, the petitioners requested that the
Commission schedule an oral hearing in the case, and conduct an on-site visit
to death row at Fox Hill Prison, The Bahamas, to investigate the victims'
conditions of detention.
In this report, the Commission concludes that the petitioners' claims
relating to violations of the Declaration satisfy the requirements of Articles
37 and 38 of the Commission's Regulations and are therefore admissible. The
Commission also concludes that the petitioners' claims relating to violations
of the Convention are inadmissible.
PROCEEDINGS BEFORE THE COMMISSION
Upon receipt of the petition and submissions of the parties, the Commission
complied with the requirements of its Regulations. The Commission studied
the petition, requested information from the parties, and forwarded the pertinent
parts of each party’s submissions to the other party.
On January 19, 1999, the Commission forwarded the pertinent parts of
the petition to the State and requested observations within 90 days regarding
exhaustion of domestic remedies and the claims raised in the petition. The
Commission also requested that the State stay the victims' executions pending
the Commission's investigation of the alleged facts.
On January 25, 1999, the petitioners forwarded additional information
to the Commission on the issue of timeliness of the petition, and argued that
the rules of both the Convention and the Declaration should apply in this
case. The pertinent parts of this information were forwarded to the State
on the same date.
Throughout the processing of this case before the Commission, the petitioners
have requested that the Commission provide it with time limits as to when
the Commission will issue a decision in the matter. On April 27, 1999, the Commission informed the petitioners
that pursuant to the Commission’s mandate, it processes cases and issues decisions
in accordance with its Regulations and was therefore unable to provide the
petitioners with a time limit for its decision in this case.
By letter dated July 30, 1999, the petitioners informed the Commission
as follows: “As you are aware, in compliance with the decision of Her Majesty’s
Privy Council, The Bahamas will take its final decision before the five (5)
year period has expired. It is
therefore essential that we receive a decision by 2 January 2000. As the time
is fast approaching I would be extremely grateful if you could inform us of
the present position and whether this case has progressed further.”
By communication dated August 13, 1999, the petitioners informed the
Commission that “[w]e have noted that the Commission has yet to reach a decision
regarding this case. In light
of this we would like to draw your attention to a ruling of the Judicial Committee
of the Privy Council in October of 1998 on a Constitutional Motion brought
by death row prisoner Trevor Fisher.
It was decided that it was not unconstitutional to execute a person
whose petition had been pending before the IACHR for more than 18 months. Trevor Fisher and Richard Woods were hanged on 16 October 1998,
even though the IACHR had informed the government of the Bahamas it would
issue its decision on both cases within two weeks.
We would ask you to recognise our concern in relation to the case of
Schroeter and Bowleg, as their petitions have now been under consideration
for some time.” The Commission acknowledged receipt of this letter on September
The Commission has not received any response from the State in respect
of the petitioners' petition, despite the Commission's requests for information
dated January 19, 1999 and January 25, 1999.
POSITIONS OF THE PARTIES ON ADMISSIBILITY
Position of the petitioners
Claims by the petitioners
The petitioners allege violations of Articles 4(1), 4(2), 4(6), 5,
7(5), 8 (1) 8(2), 24 and 25 of the American Convention, and Articles I, II,
XVII, XVIII, XI, XXV, and XXVI,
of the American Declaration, in connection with the trial, conviction and
sentencing of the victims for the crime of murder in The Bahamas. More particularly,
the petitioners argue that the mandatory death sentence imposed by the State
pursuant to its penal law on every person convicted of murder violates the
victims' rights to life under Article 4(1) of the Convention and Article I
of the Declaration, and their rights to humane treatment under Article 5 of
the Convention and Article XXVI of the Declaration.
In addition, the petitioners allege that the State has violated the
victims' rights to apply for amnesty, pardon or commutation of sentence under
Article 4(6) of the Convention, their rights to be promptly notified of the
charges against them and to be brought promptly before a judge or judicial
officer under Article 7 of the Convention, the right to a fair trial under
Article 8 of the Convention, and the right to equality before the law under
Article 24 of the Convention, together with violations of the corresponding
rights under Articles II, XVIII, XXV and XXVI of the Declaration.
With respect to their alleged violations of Articles 4 and 24 of the
Convention and the corresponding provisions of the Declaration, 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. In addition, the petitioners argue that the
absence of a hearing before the Advisory Committee or any other procedure
regulated by law to enable an objective and proportionate decision on whether
the death penalty is an appropriate punishment in the circumstances of the
victims' cases violates Articles 4 and 24 of the Convention and Article II
of the Declaration. In this regard, the petitioners also argue that the Advisory
Committee’s discretion is too broad, arbitrary, and unaccountable to accord
with human rights norms, and that it is for the party seeking to deprive the
victims of their lives to refute the absence of inequality and discrimination
in the operation of its penal law.
With respect to the petitioners' alleged violations of Articles 7 and
8 of the Convention and the corresponding provisions of the Declaration, the
petitioners claim that the victims were tried approximately 26 months after
they were arrested, and therefore were not brought to trial promptly and within
a reasonable time and were deprived of a fair trial, contrary to Articles
7(5) and 8(1) of the Convention and Articles XXV and XXVI of the Declaration.
They also allege violations of the victims' rights to a fair trial because
they were coerced through violence into signing written confessions.
The petitioners also allege violations of Articles 8 and 25 of the
Convention in relation to the unavailability of legal aid for Constitutional
Motions in The Bahamas.
Finally, the petitioners argue that the State has violated the victims'
rights to humane treatment under Article 5(1), 5 (2), and 5(6) of the Convention
and Article XXVI of the Declaration, because of their conditions of detention
on death row, and allege that these violations also render the implementation
of the victims' death sentences unlawful.
Exhaustion of domestic remedies
The petitioners argue that the victims have exhausted the domestic
remedies available in The Bahamas because they appealed their convictions
and sentences to the Court of Appeal of The Bahamas, and the Court dismissed
their appeals on July 23, 1997. The victims then petitioned the Judicial Committee
of the Privy Council for Special Leave to Appeal as Poor Persons, which dismissed
their petitions on June 3, 1998.
The petitioners also argue that the victims are unable to pursue Constitutional
Motions in The Bahamas to challenge their mandatory death sentences as being
inhuman or degrading punishment or treatment because they are indigent, and
the State’s domestic law does not provide private funds nor legal aid to indigent
persons to pursue such Motions. The petitioners claim further that the legal
complexity of a Constitutional Motion clearly requires expert legal representation
to establish a reasonable prospect of success, and that the lack of private
funding and the unavailability of Legal Aid inhibit the pursuit of such a
Motion. Finally, the petitioners allege that there is a dearth of local lawyers
who are prepared to represent the victims without payment. As a consequence,
the petitioners argue that the failure of the State to provide legal aid for
Constitutional Motions denies the victims an effective and available domestic
In support of their position, the petitioners rely upon jurisprudence
of the United Nations Human Rights Committee (HRC), in particular its decision
in the case Champagnie, Palmer & Chisolm v. Jamaica,
in which the Committee stated as follows:
respect to the authors’ possibility
of filing a Constitutional Motion, the Committee considers that, in the absence
of Legal Aid, a Constitutional
Motion does not constitute an available remedy in the case.
In light of the above, the Committee finds that it is not precluded
by Article 5(2)(b) of the Optional Protocol from considering the communication.
The petitioners therefore argue that the victims have satisfied the
admissibility requirements of Article 46(1) of the Convention and Article
37(1) of the Commission’s Regulations.
The petitioners argue that the petition was filed within a reasonable
time pursuant to Article 38(2) of the Commission’s Regulations. In this connection,
the petitioners argue that the victims exhausted domestic remedies on June
3, 1998, when the Privy Council dismissed their petitions for Special Leave
to Appeal. The petitioners claim that the petition was lodged with the Commission
on January 7, 1999 and therefore within a reasonable time.
The position of the State
The State has not provided the Commission with observations respecting
the admissibility or merits of the petition, despite the Commission’s communications
to the State dated January 19 and 25, 1999.
In their petition, the petitioners allege violations of Articles 4,
5 7, 8, 24 and 25 of the Convention, and Articles I, II, XVIII, XI, XXV, and
XXVI of the Declaration. With respect to the alleged violations of the Convention,
the Commission notes that The Bahamas has not ratified the American Convention
and is therefore not a State Party to the same. Rather, the Declaration became
the source of legal norms for application by the Commission
upon The Bahamas’ entry into the inter-American system in 1982, and became
a Member State of the Organization of American States. Therefore, the Commission
declares that it is competent to address only the petitioners' claims relating
to violations of the Declaration. It is not competent to address those claims
relating to violations of the Convention, which are accordingly inadmissible.
Article 26 of the Commission's Regulations provides that “[a]ny person
or group of persons, or any nongovernmental 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 matter
was lodged by the petitioners, Solicitors from London, United Kingdom, on
behalf of the victims, who are nationals of the State of The Bahamas. In addition,
the Commission 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 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 subject matter, temporal and personal
jurisdiction to consider the violations of the Declaration alleged in this
Admissibility of the petition
Exhaustion of domestic remedies
The petitioners argue that the victims exhausted domestic remedies
in The Bahamas on June 3, 1998, when the Privy Council dismissed their petitions
seeking Special Leave to Appeal their convictions and sentences. The State
has not provided any observations with respect to the issue of exhaustion
of domestic remedies. In accordance with generally recognized principles of
the Commission finds that the State tacitly waived its right to object to
the admissibility of the 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.
Timeliness of petition
The petitioners argue that the petition has been timely filed in accordance
with Article 38 of the Commission's Regulations.
The State has not contested the admissibility of the petition on the ground
of timeliness or otherwise demonstrate that the petition was not timely filed.
Therefore, the Commission finds that the petition is not inadmissible under
Article 38 of the Commission's Regulations.
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.
The petitioners have alleged that the State has violated the victims'
rights under Articles I, II, XVIII, XI, XXV and XXVI of the Declaration. In
addition, the petitioners have provided factual allegations that 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
Conclusion on admissibility
As noted previously, the State has not replied to the Commission’s
communications to it of January 19 and 25, 1999, to provide the Commission
with information that the State deemed relevant pertaining to the exhaustion
of domestic remedies and the claims raised in the petition. 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.
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 the victims,
and to declare inadmissible the alleged violations of the Convention presented
on behalf of the victims.
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
Declare the violations of the Declaration alleged in the petition admissible.
Declare the violations of the Convention alleged in the petition inadmissible.
Transmit this report to the State of The Bahamas and to the petitioners.
Place itself at the disposal of the parties concerned with a view to
reaching a friendly settlement of the matter.
Maintain in effect the precautionary measures issued on January 19,
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 27th day of the month of September, 1999. (Signed): Robert K. Goldman, Chairman; Hélio Bicudo, First Vice Chairman; Claudio Grossman, Second Vice Chairman; Commissioners: Alvaro Tirado Mejía, Carlos Ayala Corao and Jean Joseph Exumé.
 U.N.H.R.C., Champagnie, Palmer & Chisolm v. Jamaica, Communication Nº 445/1991.
Article 5(2) of the United Nations Optional Protocol provides: “The Committee
shall not consider any communication from an individual unless it has
ascertained that: (b) The individual has exhausted all available domestic
remedies. This shall not
be the rule where the application of the remedies is unreasonably prolonged."
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
Article 20 of the Commission’s Statute provides as follows:
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:
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;
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;
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.
See I/A Court H.R., Viviana Gallarado et al., Judgment of
November 13, 1981, Nº G 101/81. Series A, para. 26.
 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.
Article 38 of the Commission's Regulations provide as follows: (1) The
Commission shall refrain from taking up those petitions that are lodged
after the six-month period following the date on which the party whose
rights have allegedly been violated has been notified of the final ruling
in cases where the remedies under domestic law have been exhausted; (2)
In the circumstances set forth in Article 37(2) of these Regulations,
the deadline for presentation of a petition to the Commission shall be
within a reasonable period of time, in the Commission's judgment, as from
the date on which the alleged violation of rights has occurred, considering
the circumstances of each specific case.
See I/A Court H.R., Neira Alegria Case, Preliminary Objections,
Judgment, December 11, 1991 pp. 44-45, at paras. 25-31.
 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.
 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.
 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 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."