Report
Nº 24/00 CASE
12.067 I.
SUMMARY
1.
This report concerns a petition presented to the Inter-American
Commission on Human Rights (hereinafter “the Commission”) by Richard
Sallybanks Esq., Solicitor, of Messrs. Burton Copeland, Solicitors, in
London, United Kingdom, (hereinafter “the petitioners”) by letter
dated November 5, 1998 on behalf of Michael Edwards. The petition
alleges that the Commonwealth of The Bahamas (hereinafter “the
State” or “The Bahamas”) violated Mr. Edwards’ rights under the
American Declaration of The Rights and Duties of Man (hereinafter “the
Declaration”). 2.
The petitioners state that Mr. Edwards, a national of The
Bahamas, was convicted of armed robbery and murder on May 8, 1996, and a
mandatory death sentence was imposed on him.
According to the petitioners, Mr. Edwards appealed his
convictions and sentence to the Court of Appeal of The Bahamas, which
dismissed his appeal on January 20, 1997. He then petitioned the
Judicial Committee of the Privy Council (hereinafter “the Privy
Council”) for Special Leave to Appeal his convictions and sentence,
and the Privy Council dismissed his petition on October 29, 1998. 3.
The petitioners claim that the petition is admissible because Mr.
Edwards has exhausted the domestic remedies of The Bahamas. The
petitioners also allege that the State has violated Mr. Edwards’
rights under and Articles I, II, XVIII, and XXVI of the Declaration.
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 requested that the Commission ask
that the State take no steps to execute Mr. Edwards to avoid
“irremediable and catastrophic results” to him while his petition is
pending determination before the Commission. The petitioners argue that
if the State executes Mr. Edwards before the Commission renders a
decision in his case, such decision would be rendered useless, and would
weaken the fabric of the human rights system recognized and protected by
the American Declaration, and would place the Commonwealth of The
Bahamas in breach of the provisions of the Declaration. 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, 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.
7.
On December 10, 1998, pursuant to Article 34 of its Regulations,
the Commission forwarded the pertinent parts of the petition to the
State and requested its observations within 90 days with regard to the
exhaustion of domestic remedies and the claims raised in the petition.
The Commission also requested that the State stay Mr. Edwards’
execution pending the Commission's investigation of the alleged facts. 8.
On December 11, 1998, the Commission received the State’s reply
to the petition. In
summary, the communication addressed the merits of the petition[1]
and stated the following: The
Government of The Bahamas has been informed that a Petition has been
filed with the Commission on behalf of the above captioned convict, who
has been sentenced to death. With
respect to the alleged Breaches as contained in a copy of the Petition
lodged with our United Kingdom Solicitors Messrs. Charles Russell, We
respond as follows:- the
application for special leave to appeal the applicant’s conviction to
the Privy Council was heard and dismissed according to our records on
the 30th October, 1998, as opposed to the 29th
October. The other relevant
dates referred to in the History are agreed.
The Government does not take issue with the Background or the
Defence Case as stated in paragraph 2. Be
respectfully advised that the Government of The Bahamas gives the
undertaking that it will accord to the IACHR “reasonable time,” in
accordance with the IACHR’S own Regulations, in order to consider the
Petition but maintains that is (it) will not allow such reasonable time
to extend to five (5) years from the date of conviction, thereby
frustrating the domestic law as laid down by the Highest Court of the
Land, the Judicial Committee of her Majesty’s Privy Council. The
Government regrets therefore, that unless the final recommendation of
the IACHR be forwarded to reach the Government of The Bahamas in Nassau
within eighteen (18) months of the 4th November, 1998 and in
any event not later than the 4th May, 2000, the Government
will be obliged to act in accordance with the laws of the land. 9.
On December 21, 1998, the Commission forwarded the pertinent
parts of the State’s reply to the petitioners and requested that it
provide the Commission with their observations within 30 days. 10.
On January 20,1999, the Commission received a request from the
petitioners for an extension of time to file their response to the
State’s observations because the petitioners stated that they were
“still awaiting information from Mr. Edwards regarding the preparation
of his defense namely, that he was deprived of a fair trial, and the
prison conditions in which he is currently being held.” On February 5, 1999, the petitioners forwarded their
observations to the State’s reply to the petition.
In addition, the petitioners stated that there were practical
difficulties in obtaining information with regard to Mr. Edwards’
prison conditions and reserved the right to develop this ground of his
petition once relevant information is received.
The petitioners also reiterated their request that the Commission
issue precautionary measures in respect of Mr. Edwards. 11.
On February 19, 1999, the Commission forwarded the petitioners’
observations to the State and requested that it provide the Commission
with it information that it deemed relevant to the case within 30 days. 12.
On October 19, 1999, the Commission reiterated its request to the
State to provide it with observations to the petitioners’ response to
the State’s reply to the petition. 13.
The Commission has not received any additional communication or
information from the State since its reply to the petition on December
11, 1998.
III.
POSITIONS OF THE PARTIES ON ADMISSIBILITY A.
Position of the petitioners 14.
The petitioners allege violations of Articles I, II, XVIII, and
XXVI of the Declaration, in connection with the trial, conviction and
sentencing of Mr. Edwards for the crime of murder in The Bahamas. More
particularly, the petitioners argue that the mandatory death sentence
imposed by the State pursuant to its penal law on every person convicted
of murder, and the pardon and commutation regime of the State violate
Mr. Edwards’ rights to life, equality before the law, a fair trial,
and humane treatment under Articles I, II, XVIII, and XXVI, of the
Declaration. 15.
In the original petition dated November 5, 1998, the petitioners
contended that Mr. Edward’s right to a fair trial pursuant to Article
XXVI of the Declaration was violated because he was denied the benefit
of effective and competent counsel. In their later submission of
February 5, 1999, the petitioners withdrew this claim. 16.
The petitioners also maintain that Mr. Edwards did not have a
fair trial pursuant to Article XXVI of the Declaration because the State
failed to disclose documents relating to the conduct of the
identification parade in his case. 17.
In addition, the petitioners claim that the conditions under
which Mr. Edwards is being detained violate Article XXVI of the
Declaration, and that they
would amplify this ground or withdraw it in due course. 18. The petitioners
argue that the petition is admissible because Mr. Edwards has exhausted
the domestic remedies of The Bahamas.
The petitioners contend that Mr. Edwards appealed his convictions
and sentence to the Court of Appeal of The Bahamas, which dismissed his
appeal on January 20, 1997. Mr. Edwards then petitioned the Judicial Committee of the
Privy Council (hereinafter referred to as “the Privy Council”) for
Special Leave to Appeal his convictions and sentence, and the Privy
Council dismissed his petition on October 29, 1998.
In response to the State’s position that Mr. Edwards petition
to the Privy Council was dismissed on October 30, 1998, the petitioners
reaffirmed that Mr. Edwards’ petition to the Privy Council was heard
and dismissed on October 29, 1998, and not October 30, 1998, as
suggested by the State. 19.
The petitioners also contend that the State may claim that Mr.
Edwards has a remedy under the Constitution of The Bahamas to pursue a
Constitutional Motion, however, this remedy cannot be considered either
available or effective. The petitioners argue that Mr. Edwards is unable
to pursue a Constitutional Motion in The Bahamas to challenge his
mandatory death sentence as being inhuman or degrading punishment or
treatment because he is indigent, and the State’s domestic law does
not provide private funds nor legal aid to indigent persons to pursue
such Motions. The petitioners claim that his petition to the Commission
is being made on a pro bono
basis, and that the State’s practice is to refuse legal aid for
Constitutional Motions. The petitioners maintain that the legal
complexity of a Constitutional Motion, combined with Mr. Edwards’
relative lack of education, makes
it unrealistic and unfair to expect him to present a Constitutional
Motion without professional legal assistance. Finally, the petitioners
maintain that it is difficult for Mr. Edwards to find a Bahamian lawyer
who is willing to prepare and argue a Constitutional Motion pro
bono. 20.
In support of their position, the petitioners rely upon
jurisprudence of the United Nations Human Rights Committee (HRC), in
particular its decision in the case of Champagnie, Palmer &
Chisolm v. Jamaica,[2]
in which the Committee stated as follows: With
respect to the authors’
possibility of filing a Constitutional Motion, the Committee considers
that, in the absence of Legal
Aid, a Constitutional Motion does not constitute an available remedy in
the case. In light of the
above, the Committee finds that it is not precluded by Article 5(2)(b)
of the Optional Protocol from considering the communication.[3]
B.
The position of the State
21.
In its reply which was received by the Commission on December 11,
1998, the State did not contest the admissibility of the petition, and
only addressed the substantive issues relating to the merits of the
petition.[4]
However, in addition, the State maintains the following: “the
application for Special Leave to Appeal the applicant’s (Mr.
Edwards’) conviction to the Privy Council was heard and dismissed
according to our records on the 30th October, 1998, as
opposed to the 29th October.
The other relevant dates referred to in the history are agreed. The Government does not take issue with the Background or the
Defence Case as stated in paragraph 2 of the petition.” IV.
ANALYSIS ON ADMISSIBILITY A.
Commission’s competence 22.
In their petition, the petitioners allege violations of Articles
I, II, 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. Edwards’ who is a national of the State of
The Bahamas.
23.
The Declaration became the source of legal norms for application
by the Commission[5]
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,[6]
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 24.
The petitioners argue that Mr. Edwards exhausted domestic
remedies in The Bahamas on October 29, 1998, when the Privy Council
dismissed his petition seeking Special Leave to Appeal his convictions
and sentence. In its reply which was received by the Commission on
December 11, 1998, the State did not contest the admissibility of the
petition, and only addressed the substantive issues relating to the
merits of the petition.[7]
However, the State maintained that Mr. Edwards’ “application
for special leave to appeal the applicant’s conviction to the Privy
Council was heard and dismissed according to our records on the 30th
October, 1998, as opposed to the 29th October.
The other relevant dates referred to in the history are agreed.
The Government does not take issue with the Background or the
Defence Case as stated in paragraph 2 of the petition.” 25.
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.” The Commission
concludes that Mr. Edwards exhausted the domestic remedies of The
Bahamas between October 29 and October 30, 1998, and therefore the
petition is admissible under Article 37(1) of the Commission's
Regulations. [8] b.
Timeliness of petition 26. As concluded
above, Mr. Edwards’ petition was dismissed by the Privy Council
between October 29 and October 30, 1998.
Mr. Edwards’ petition was presented to the Commission on
November 5, 1998. Therefore, the Commission concludes that Mr.
Edwards’ petition was filed within six months of the final decision in
his case, and finds that the petition is admissible pursuant to Article
38 of its Regulations. c.
Duplication of procedures
27. The petitioners
state in their petition that the claims raised in their petition on
behalf of Mr. Edwards have not been submitted for examination under any
other procedure of international investigation or settlement. 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.[9]
d.
Colorable claim 28. The petitioners
have alleged that the State has violated the victims' rights under
Articles I, II, 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 its Regulations.[10]
29. 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. Edwards. THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, DECIDES
TO: 1.
Declare that the petition is admissible with respect to the
claimed violations of Articles I, II, 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 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 Méndez, Second
Vice-Chairman; Commissioners Marta Altolaguirre, Robert K. Goldman,
Peter Laurie, and Julio Prado Vallejo. [1]
The Government’s response on the merits will be addressed in the
merits phase of the petition. [2]
U.N.H.R.C., Champagnie, Palmer & Chisolm v. Jamaica,
Communication No. 445/1991. [3]
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." [4]
The State’s arguments on the substantive issues will be included
in the merits’ phase of the petition. [5]
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. [6]
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. [7]
The State’s arguments on the substantive issues will be included
in the merits’ phase of the petition. [8]
The petitioners maintain that Mr. Edwards’ petition was dismissed
by the Privy Council on October 29, 1998.
The State argues that Mr. Edwards’ petition was dismissed
by the Privy Council on October 30, 1998. [9]
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 pending in another 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. [10]
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.
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