Report Nº 123/99
1. 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
2. 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.
3. 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
4. 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.
5. 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
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, requested information from the parties,
and forwarded the pertinent parts of each party’s submissions to the
7. 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.
8. 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.
9. 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
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
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 7, 1999.
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
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,
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 remedy.
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
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,
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 case.
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 international law,
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
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
Therefore, the Commission finds that the petition is not inadmissible
under Article 38 of the Commission's Regulations.
c. Duplication of procedures
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 Regulations.
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
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
Declare the violations of the Convention alleged in the petition
Transmit this report to the State of The Bahamas and to the
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
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 1989.
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
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; and,
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."