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REPORT Nº 6/02 ADMISSIBILITY PETITION
12.071 120
CUBAN NATIONALS AND 8
HAITIAN NATIONALS DETAINED IN THE
BAHAMAS February
27, 2002 I.
SUMMARY
1.
This Report concerns a petition which was presented on August 13,
1998, to the Inter-American Commission on Human Rights (hereinafter
referred to as "the Commission") by the Center for Justice and
International Law (CEJIL) and
the Open Society Institute (hereinafter referred to as "the
Petitioners") on behalf of 120 Cuban nationals and 8 Haitian
nationals (hereinafter
referred to as "the victims") who were detained by the
Commonwealth of The Bahamas (hereinafter referred to as "The
Bahamas" or "the State") at the Carmichael Road Detention
Center, Nassau, in The Bahamas. The Petitioners alleged that the State
violated the victims' rights guaranteed by the provisions of the
American Declaration of the Rights and Duties of Man (hereinafter
referred to as "the American Declaration" or "the
Declaration"). 2.
The Petitioners state that many of the victims who have
legitimate claims to assert their right to refugee status in The Bahamas
were unable to do so because the State does not make processes available
whereby the victims could present their claims of refugee status to the
State. The Petitioners argue that the victims should be excused from
exhausting domestic remedies, and contend that the domestic legislation of The Bahamas does not provide due
process, because the victims have been denied access to domestic
remedies in The Bahamas. According to the Petitioners, the State does
not have domestic procedures in place whereby asylum seekers can assert
their claims or pursue release while their claims to refugee status are
pending. 3.
The Petitioners allege that the State's failure to provide
available processes to the victims to assert their claim of refugee
status, and the arbitrary detention and treatment of the victims in
detention constitute violations of Article I (right to life, liberty and
personal security), Article II (right to equality before the law),
Article V (right to protection of honor, personal reputation and private
and family life), Article VI (right to a family and protection thereof),
Article XVII (right to protection for mothers and children), Article
XVII (right to recognition of juridical personality and civil rights),
Article XVIII (right to a fair trial, judicial protection), Article XXV
(right to protection from arbitrary arrest) and Article XXVII (right to
asylum) of the American Declaration. In addition, the Petitioners
maintain that The Bahamas is also in violation of Article 33 of the 1951
Convention relating to the Status of Refugees and its 1967 Protocol.
Based on the foregoing reasons, the Petitioners requested that
the Commission issue precautionary measures pursuant to the Article 29
of its former Regulations [1]against
the State to prevent irreparable harm to the victims. 4.
As to the admissibility of the petition, the State argues that
the domestic remedies of The Bahamas have not been invoked and exhausted
as required by the provisions of Article 37 of the Commission's former
Regulations. 5.
The Commission decides to declare Articles I, I, II, V, VI, VII,
XVII, XVIII, XXV, and XXVII of
the Declaration admissible pursuant to Articles 31, 32, 33, 34, and 37
of its Rules of Procedure.
II.
PROCEEDINGS BEFORE THE COMMISSION 6.
The Petitioners presented the petition to the Commission on
August 13, 1998, and subsequent communications which have been
consolidated and is referred to as "the petition" for the
purposes of this Report. In
their August 13, 1998, petition, the Petitioners requested that the
Commission issue precautionary measures pursuant to the former Article
29 of its Regulations[2]
against the State to prevent irreparable harm to the victims. In
addition, the Petitioners sought relief from the Commission by asking it
to do the following: a.
The Commission should request that the State temporarily suspend
all deportations of Cubans to Cuba; b.
The Commission should insist that the State implement written and
established procedures for determination of refugee status that comply
with international standards; and c.
The Commission should also include a time limit within which the
above steps must be taken so as to avoid unnecessarily prolonged
detention at the Carmichael camp, because the conditions are clearly
inappropriate for prolonged detention. 7.
In an August 14, 1998, communication, the Petitioners informed
the Commission inter alia that
"The Nassau Guardian," a newspaper located in The Bahamas,
reported in an article that the State returned 65 Cubans to Cuba. 8.
On August 14, 1998, the Commission sent a communication to the
State informing it that it had received information in relation to the
victims concerning the claims raised in the petition.
The Commission indicated to the State that based on the
information presented to it, and to avoid irreparable harm to the
victims that it was issuing precautionary measures pursuant to Article
29 of its Regulations. In
issuing the precautionary measures to the State, the Commission
requested that the State stay the deportation of the Cuban nationals
from The Bahamas to Cuba, until it has had the opportunity to
investigate the claims raised in the petition.
In addition, the Commission asked the State to provide it with
information concerning the status of the Cuban nationals, and the
allegations raised in the petition.
The Commission also sent a communication to the Petitioners
informing them of the precautionary measures issued and its request for
information from the State. 9.
On September 11, 1998, the Commission reiterated its request to
The Bahamas for information concerning the precautionary measures issued
and its request for information concerning the status of the victims. 10.
The Petitioners wrote to the Commission on September 30, 1998,
informing the Commission inter alia that on August 18, 1998, that the State repatriated 47
Cubans who had been detained at the Carmichael Road Detention Center,
and that this number was in addition to the 65 Cubans who were
repatriated on August 11, 1998. The Petitioners stated that The Bahamas
conducted these repatriations, notwithstanding the issuance of
precautionary measures by the Commission to prevent irreparable damage
to the victims, and its request for information as to the status of the
victims. The Petitioners
claimed that the State was ignoring the Commission's requests. The
Petitioners also reported that of the initial 120 Cubans, that there
were 72 Cubans still remaining at the Carmichael Road Detention Center.
The Petitioners asserted that the State has not demonstrated that
it has undertaken any efforts to accord these individuals due process to
determine their status as refugees, and reiterated their request for
precautionary measures. In
addition, the Petitioners asked that the Commission request from the
State the following: (i)
To request that The Bahamas
temporarily suspend all deportations. (ii)
To reassert its request for information to the State on the
status of the 120 Cuban nationals detained at the Carmichael Detention
Center, in particular, Alexis Perez Ricardo, Hector Jurto Sanchez,
Manuel Ramon Reyes Lamela and Lazaro de la Riva Suarez. (iii)
To ask The Bahamas for a list of the names of the 120 Cubans who
were detained at the Carmichael Detention Center on August 13, 1998,
including information as to whether any of them are still at the Center
or, if they are no longer there, and the date and manner of their
repatriations. (iv)
To request that the State provide the Commission with a copy of
the pertinent administrative and/or judicial laws, procedures and
regulations in place for determining refugee status and a copy of the
Treaty and Protocol between The Bahamas and Cuba regarding the expedited
repatriation of Cuban nationals. (v)
To include a time limit within which the State would comply with
the Commission requests in (I) to (iv) above. 11.
In a communication dated October 15, 1998, the Commission wrote
to the State and referred to its communications to the State of August
14, and September 11, 1998, concerning the issuance of precautionary
measures, and its request for information concerning the status of the
victims. The Commission
also informed the State that it had not received responses from The
Bahamas in respect of these communications. In addition, the Commission
requested that the State provide it within information within one week
of the following:
a.
Information concerning the 120 Cuban nationals detained in The
Bahamas, and in particular, information concerning Alexis Perez Ricardo,
Hector Jurto Sanchez, Manuel Ramon Reyes Lamela and Lazaro de la Riva
Suarez. b.
A list of the names of the 120 Cubans who were detained at the
Carmichael Road Detention Center on August 13, 1998, also information as
to whether any of them are still at the Center or, if they are no longer
there, information about when and how they were repatriated. c.
A copy of the pertinent administrative and/or judicial laws,
procedures and regulations in place for determining refugee status, and
a copy of the Treaty and Protocol between The Bahamas and Cuba regarding
the expedited repatriation of the Cuban nationals. 12.
On October 23, 1998, the State responded to the Commission's
requests for information concerning the 120 Cuban nationals who were
detained at Carmichael Road Detention Centre, and provided the
Commission with a list of their names, status, location, and in
particular Alexis Perez Ricardo, Hector Jurto Sanchez, Manuel Ramon
Reyes Lamela and Lazaro De La Riva Sanchez, and a copy of the Treaty and
Protocol between The Bahamas and Cuba. 13.
On October 26, 1998, the Petitioners wrote to the Commission and
informed it that despite the Commission's clear mandate in issuing
precautionary measures on August 14, 1998, against The Bahamas,
nevertheless, the State repatriated 47 Cubans who had been detained at
the Carmichael Road Detention Center. The Petitioners claimed that the
repatriated victims were individuals who had been interviewed by their
attorneys, and had presented colorable claims to refugee status. In
addition, the Petitioners stated that the State had repatriated 89
victims from The Bahamas to Cuba on October 22, 1998, which was in
complete disregard of the Commission's precautionary measures to the
State to stay further deportations. The Petitioners also requested that
the Commission: 1.
Remind the Bahamian Government of its obligation to stay the
deportations of the Cubans pursuant to the issuance of precautionary
measures. 2. Reassert its request for information from the Bahaman authorities concerning the status of Individuals detained at the Carmichael Road Detention Centre including Alexis Perez Ricardo, Hector Sanchez, Manuel Ramon Reyes Lamela, and Lazaro De la Riva Suarez whom we specifically named in our Request for precautionary measures. 3. Request from the Bahamian government a copy of the pertinent administrative or judicial laws, procedures, and regulations in place and in practice for determining refugee status, and a copy of the Agreement and Protocol between The Bahamas and Cuba regarding the expedited repatriation of Cuban nationals, and include a time limit within which the above steps must be taken. 14.
On December 10, 1998, the Petitioners submitted additional
information, and their arguments in relation to the admissibility of the
petition including exhaustion of domestic remedies and the alleged
violations of the American Declaration, including supporting authorities
to substantiate their arguments. 15.
On December 16, 1998, the Commission opened a case and forwarded
the pertinent parts of the petition to the State pursuant to Article 34
of its former Regulations.[3]
The Commission also requested that the State provide it with information
concerning the exhaustion of domestic remedies as established by Article
37 of its former Regulations, and the allegations raised in the petition
within 90 days. 16.
On March 31, 1999, the Petitioners wrote to the Commission and
stated that since the State has failed to provide information as
requested by the Commission within 90 days, that the Commission should
apply Article 42 of the Commission's former Regulations[4]
and presume the veracity of the facts as presented in the petition.
The Petitioners also requested a hearing before the Commission at
its 104th Regular Session which was to be held from September
to October 1999. The Commission forwarded the pertinent parts of the
Petitioners' communication to the State for its comments and
observations, if any, within 30 days. 17.
The State requested a 30 day extension from the Commission to
respond to the petition on April 7, 1999.
On April 12, 1999, the Commission granted The Bahamas the 30 day
requested extension. The
Commission also informed the Petitioners that it had granted the State
at its request, an extension of 30 days to respond to the petition.
18.
On July 26, 1999, the State forwarded its Reply to the petition
pertaining to the issue of exhaustion of domestic remedies as required
by Article 37 of the Commission's former Regulations, and did not
address the issue of the merits of the petition.
The Commission forwarded the pertinent parts of the State's Reply
to the Petitioners on August 23, 1999, and requested that the
Petitioners provide the Commission with its observations or comments, if
any, within 30 days of receipt of its communication. On August 23, 1999,
the Petitioners wrote to the Commission and reiterated their request for
a hearing at the Commission's 104th Regular Session. 19.
On August 30, 1999, the Commission wrote to both the State and
the Petitioners informing them that a Hearing had been granted for them
to appear before it at the Commission's 104th Regular Session
on Friday October 1, 1999. 20.
The Hearing was held before the Commission on August 30, 1999,
and both the Petitioners[5]
and the State were represented.[6]
At the hearing the Petitioners addressed the issue of exhaustion of the
domestic remedies of The Bahamas and the merits of the petition.
The State addressed the issue of exhaustion of domestic remedies
and denied the allegations raised in the petition. 21.
On August 24, 2000, the Petitioners requested a hearing from the
Commission at its 108th Regular Session because they claimed that the
State had not provided the Commission with the pertinent information and
that the situation faced by the refugees continued to be worrisome. On
September 12, 2000, the Commission informed both parties that it had
granted a Hearing on the admissibility and merits of the petition at its
108th Regular Session, on October 12, 2000. 22.
On September 20, 2000, the State forwarded its Reply on the
merits of the petition and other documentation, pertaining to its
procedures in assessing refugee claims and status.
The Commission sent the pertinent parts of the State's Reply and
pertinent documentation relating to the State's procedures for
evaluating claims from persons claiming refugee status to the
Petitioners on September 21, 2000, and requested that they provide it
with their observations and comments, if any, within 30 days. 23.
On October 11, 2000, The Bahamas sent a communication to the
Commission informing it that it would not be represented at the Hearing
scheduled for October 12, 2000. The
State also requested that the Commission forward to it the Petitioners
response to its Reply on the merits of petition.
24.
On October 12, 2000, a Hearing was held before the Commission at
which the Petitioners were present. The State did not appear at the
Hearing. The Petitioners
presented their response to the State's Reply to the merits of the
petition. At the Hearing
the Commission offered to use its good offices to facilitate friendly
settlement negotiations between the parties. The Commission forwarded
the Petitioners' response to the State's Reply to the petition, on
October 24, 2000, and requested that it provide its observations or
comments, if any, within 30 days of receipt of the same. 25.
On November 20, 2000, the Commission wrote to both the State and
the Petitioners informing them that it wished to place itself at the
disposal of the parties concerned with a view to reaching a friendly
settlement in the case on the basis of respect for the human rights
recognized in the American Declaration and the Rights of Duties of Man. 26.
The Petitioners wrote to the Commission on December 19, 2000,
informing it that it wished to accept the Commission's offer to initiate
friendly settlement negotiations between the parties. The pertinent
parts of the Petitioners' communication concerning its willingness to
enter into friendly settlement negotiations with the State were
forwarded to The Bahamas. 27.
On June 13, 2001, the Petitioners wrote to the Commission and
stated that because the State appeared not to be interested in pursuing
friendly settlement negotiations in the case, they were requesting that
the Commission admit the petition and declare that The Bahamas has
violated Articles of the American Declaration, namely, Article I (right
to life, liberty and personal security), Article II (right to equality
before the law), Article V (right to protection of honor, personal
reputation and private and family life), Article VI (right to a family
and protection thereof), Article XVII (right to protection for mothers
and children), Article XVII (right to recognition of juridical
personality and civil rights), Article XVIII (right to a fair trial),
Article XXV (right to protection from arbitrary arrest) and Article
XXVII (right to asylum). III.
PARTIES POSITIONS ON THE ADMISSIBILITY OF THE PETITION 1.
The Petitioners' Position
a.
Petitioners Claims[7]
28.
The Petitioners indicate that The Bahamas is a small island
country with approximately 260,000 citizens, and that over the years,
because of its geographic location, The Bahamas has experienced an
increasing influx of hundreds of asylum seekers from several countries,
primarily Haiti and Cuba. The
Petitioners maintain that the majority of these asylum seekers are
intercepted at sea, either by the United States Coast Guard sometimes in
United States' waters, or by the Bahamian Coast Guard and thereafter are
sent to Nassau where they are arbitrarily detained at the Carmichael
Road Detention Center.
29. The
Petitioners claim that during the second week of July of 1998, they (CEJIL)
conducted a fact-finding mission in The Bahamas to learn more about the
plight of these asylum seekers. The Petitioners state that at the time
of their visit there were approximately 300 persons detained at the
Carmichael Road Detention Centre, and that among the 300 persons,
approximately 120 were Cubans, 100 were Haitians, and 80 were of varying
other nationalities from Africa, Central, South, and North America. The
Petitioners inform that they were able to secure information on 38
Cubans and 8 Haitians either orally, or through a written questionnaire.
The Petitioners allege that all of the Cubans interviewed cited their
opposition to the Castro regime and/or their desire for freedom as
reasons for leaving. The Petitioners identified the 38 Cubans as follow:
30.
The Petitioners claim that many of the victims who were
interviewed have legitimate claims to assert their right to refugee
status in The Bahamas, however, they were unable to do so.
The Petitioners maintain that the State does not make processes
available whereby the victims could present their claims of refugee
status to the State. According to the Petitioners, they conducted 38
interviews with the victims and that 18[12]
of the 38 Cubans made specific references to political persecution as
their reason for fleeing Cuba and had strong and well-substantiated
claims for refugee status since they feared torture or death if they
were returned to Cuba based on their defense of human rights and their
involvement in an opposition party. The Petitioners report that many of
the victims who were interviewed traveled with family members, including
small children. 31.
The Petitioners contend that
the 8 Haitian nationals who were interviewed came from rural
areas of Haiti where government entities such as police forces and court
systems, and other necessary infrastructure have either ceased to exist
or exist on an ad hoc basis. The Petitioners also maintain that the 8
Haitian nationals cited the
lack of government protection and intervention as the reason for their
departure from Haiti. The names of the 8 Haitian nationals interviewed
are: 1.
Jean Eli 2.
Girard Jean-Jacques 3.
Joseph Timothe 4.
Walner Florestal 5.
Serandieu Massillon 6.
Abadi George 7.
Natusha Joseph 8.
San Voir Jean-Baptise 32.
The Petitioners allege that the State's failure to provide
available processes to the victims to assert their claim of refugee
status, and the arbitrary detention and treatment of the victims in
detention constitute violations of, Article I (right to life, liberty
and personal security), Article II (right to equality before the law),
Article V (right to protection of honor, personal reputation and private
and family life), Article VI (right to a family and protection thereof),
Article XVII (right to protection for mothers and children), Article
XVII (right to recognition of juridical personality and civil rights),
Article XVIII (right to a fair trial, judicial protection), Article XXV
(right to protection from arbitrary arrest) and Article XXVII (right to
asylum) of the American Declaration. 33.
In addition, the Petitioners maintain that The Bahamas is also in
violation of Article 33 of the 1951 Convention relating to the Status of
Refugees and its 1967 Protocol because irreparable harm will occur if
the victims are returned to Cuba where their lives, freedom and/or
personal security would be in jeopardy based on their political opinion
or membership in a social group. Such involuntary return would vitiate
the principle of non-refoulement enshrined in these instruments.
34.
On the issue of the admissibility of the petition, the
Petitioners cite Article 37(1)(a) of the Commission's former
Regulations, at present Article 31(2)(a)[13]
and argue that the exception to the exhaustion of domestic remedies rule
should apply in this case as established by the Rule. The Petitioners
contend that the domestic
legislation of The Bahamas does not provide due process, because the
victims have been denied access to domestic remedies. According to the
Petitioners the State does not have domestic procedures in place whereby
asylum seekers can assert their claims or pursue release while their
claims to refugee status are pending.
The Petitioners conclude by asking the Commission to admit the
case and adopt a Report on the merits.
2.
The State's Position[14] 35.
As to the admissibility of the petition, the State argues that
the domestic remedies of The Bahamas have not been invoked and exhausted
as required by the provisions of Article 37 of the Commission's former
Regulations. 36.
The State indicated that the Commonwealth of The Bahamas is an
archipelago of several hundred islands which spread over thousands of
miles of ocean between the North American Florida peninsula and the
islands of Cuba and Hispaniola. The State informs "that given its
geographical location to the North American continent, The Bahamas has a
legitimate fear of illegal immigrants in large numbers using The Bahamas
as a gateway to the continent. In addition, the State maintains that the
Government of The Bahamas is particularly sensitive to large numbers of
undocumented persons within its territorial waters." The State
contends that entry into The Bahamas is governed by the Immigration Act,
Chapter 179 of the Revised statute Law of The Bahamas 1987. The State
reports that Section 47 of the Act states: Where
any officer of the Defence Force or any customs officer or police
officer has reasonable grounds for believing that any person on board
any vessel which is in the territorial waters of The Bahamas is landing
or preparing to land in The Bahamas in contravention of the provisions
of this Act, he may board such vessel and exercise the powers conferred
on an immigration Officer under Section 8. Section
8 of the Immigration Act provides: (1) For the purpose of exercising his powers and functions and carrying out his duties under this Act, any Immigration Officer may- (a)
board any ship within the territorial waters of The Bahamas or
any aircraft which has landed in The Bahamas; (b)
without a search warrant, search any such ship or aircraft or
anything contained therein or any vehicle being landed in The Bahamas
from any such ship or aircraft; (c)
interrogate any person reasonably supposed not to be a citizen of
The Bahamas or to be a permanent resident who- (i)
desires to enter or leave The Bahamas (ii)
being in The Bahamas, is reasonably suspected of having entered
without leave in contravention of section 18; (2)
Any Immigration Officer may, in writing, summon for the purposes
of interrogation any person whom he is empowered by paragraph (c) of
subsection (1) of this section to interrogate, and may require any such
person to produce any document in his custody or possession or under his
control relating to any matter upon which he may be interrogated... 37.
The State refutes the Petitioners allegations raised in the
petition. The State denies that it is in violation of its international
obligations in relation to the victims. The Bahamas contends inter
alia that it is a party to the 1951 United Nations Convention
Relating to the Status of Refugees and its 1967 Protocol, and
accordingly applies the procedures and standards pursuant to that
international Convention. The State argues that its procedures are
consistent with its obligations under the 1951 Convention. The State
maintains that for the purposes of satisfying its treaty obligations, it
seeks the guidance of the officials of the United Nations high
Commissioner for Refugees (UNHCR). In response to the petition, The
Bahamas stated that:
38.
With regard to the Commission's requesting a copy of the
pertinent administrative and/or judicial laws, procedures and
regulations in place for determining refugee status, and a copy of the
Treaty and Protocol between The Bahamas and Cuba regarding the expedited
repatriation of the Cuban nationals. The Bahmaas provided the Commission
with the requested information and
stated the following: There
is not yet in place laws as regards the determination of refugee status. Rather,
there is an administrative procedure. Bahamian officials in conjunction
with officials from UNHCR conduct individual interviews. Those persons who meet the Convention's requirements are
recommended to the Executive for favourable consideration.
On no occasion has the Executive not acted favourably to a
recommendation. Since
becoming a party to the 1951 Convention and its 1967 Protocol, The
Bahamas has granted refugee status to 78 Cuban nationals.
The Bahamas fulfills its obligations pursuant to the Convention
to which it is a party. As
requested, we provide herewith a copy of the Repatriation Agreement with
the Government of Cuba and the Protocol to the same.
The
Ministry wishes to advert to paragraph 1 of page 2 of the letter of
August 14, 1998, which states that the "Petitioner
alleges that some of the Cuban nationals have valid claims for refugee
status but are unable to make those claims because Your Excellency's
Government does not make available processes whereby the Cubans can
assert their requests for refugee status." While the Ministry
has not had the benefit of sight of the petition, grave exception is
taken to this allegation, as all would-be refugees are extensively
interviewed. IV. ANALYSIS ON ADMISSIBILITY
A. Competence of the Commission 39.
In this petition, the Petitioners allege violations of Article I
(right to life, liberty and personal security), Article II (right to
equality before the law), Article V (right to protection of honor,
personal reputation and private and family life), Article VI (right to a
family and protection thereof), Article XVII (right to protection for
mothers and children), Article XVII (right to recognition of juridical
personality and civil rights), Article XVIII (right to a fair trial,
judicial protection), Article XXV (right to protection from arbitrary
arrest) and Article XXVII (right to asylum) of the American Declaration.
In addition, the Petitioners maintain that The Bahamas is also in
violation of Article 33 of the 1951 Convention relating to the Status of
Refugees and its 1967 Protocol of the Declaration. Article 23 of the
Commission's Rules of Procedure provides that:
40.
The petition in this case was lodged on behalf of the victims,
Cuban and Haitian nationals of the Member States of the OAS, by the
Petitioners, nongovernmental entities legally recognized in one or more
of the Member States of the OAS as provided by Article 23 of the
Commission's Rules of Procedure. 41.
The Declaration became the source of legal norms for application
by the Commission[15]
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,[16]
and the Commission's Rules of Procedure 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 jurisdiction ratione temporis,
ratione materiae, and ratione
personae 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 the alleged violations of
the American Declaration.
42.
With regard to the
Petitioners' claims concerning Article 33 of the United Nations 1951
Convention Relating to the Status of Refugees and its Protocol of 1967,
the Commission refers to the Advisory Opinion of the Inter-American
Court of Human Rights in which it opined that: The need of the regional system to be complemented by the universal finds expression in the practice of the Inter-American Commission on Human rights and is entirely consistent with the object and purpose of the Convention, the American Declaration and the Statue of the Commission. 43.
In keeping in line with international human rights jurisprudence
including that of the Inter-American Court of Human Rights the
Commission will refer to those international human rights instruments
for the purpose of assisting it in its interpretation of Article XXVII
of the American Declaration which addresses the right to seek and
receive asylum. Likewise, in this matter before the Commission, the
Commission will refer to Article 33 of the Treaty and Protocol in the
merits phase of the petition under study. B. OTHER GROUNDS OF ADMISSIBILITY a.
Exhaustion Of Domestic Remedies And Timeliness Of Petition 44.
The issue which this petition presents is whether the Petitioners
have pursued and exhausted the domestic remedies of The Bahamas or that
the exception to the exhaustion of domestic remedies rule should apply. The issue of exhaustion of domestic remedies is governed by Article 31 of
the Commission’s Rules of Procedure. That Article provides: "In
order to decide on the admissibility of a matter, the Commission shall
verify whether the remedies of domestic legal system have been pursued and exhausted in accordance with the general
principles of international law."
Article 31(2) states that the preceding paragraph shall not apply
when: a.
The domestic legislation of the State concerned does not afford
due process of law for protection of the right or rights that have
allegedly been violated; b.
The party alleging violation of his rights has been denied access
to the remedies under domestic law or has been prevented from exhausting
them; or c.
There has been unwarranted delay in rendering a final judgment
under the aforementioned remedies. 45.
The Petitioners argue that the State does not have available
procedures in place in The Bahamas for an individual to seek and receive
asylum in that State pursuant to the cited Articles of the American
Declaration. The Petitioners argue because of this lack of available
procedures the victims are unable to invoke and exhaust domestic
remedies as required by the Commission's Rules of Procedure referred to
above. In addition, the Petitioners indicated that many of the victims
were repatriated before their claims to refugee status could be
adequately determined by the State. Moreover, the Petitioners assert
that the exception to the exhaustion of domestic remedies should be
applied in this matter as provided by Article 31(2)(a) because The
Bahamas does not afford due process of law for protection of the right
or rights that have allegedly been violated. 46.
The State contends that the Petitioners have not invoked and
exhausted domestic remedies. The State maintains that although
"there is not yet in place laws as regards the determination of
refugee status, there is an administrative procedure in place whereby
Bahamian officials in conjunction with officials from the UNHCR conduct
extensive interviews with individuals, and that those persons who meet
the requirements of the 1951 Convention Relating to the Status of
Refugees and its 1967 Protocol are recommended to the Executive for
favourable consideration." In addition, the State asserts that
"on no occasion has the Executive not acted favourably to a
recommendation since becoming a party to the 1951 Convention and its
1967 Protocol," and that The Bahamas fulfills its obligations
pursuant to the Convention to which it is a party. 47.
It is well established that generally recognized principles of in
international law and Article 31(1) of the Commission's Rules of
Procedure, indicate that there is a rule of prior exhaustion of domestic
remedies. This rule has been applied by international human rights
adjudicating bodies including the Commission, the United Nations Human
Rights Committee, and in the European System for the Protection of Human
Rights both by the former European Commission, and the European Court of
Human Rights. Pursuant to this rule, the State is given the opportunity
to address and remedy the wrong done to the complaining party. However,
there are exceptions to this universal rule of prior exhaustion of
domestic remedies as provided by Article 31(2)(a) of the Commission
Rules of Procedure and which the Petitioners are relying on.
The Petitioners have argued that the Commission should excuse
them from exhausting the domestic remedies of The Bahamas, because the
domestic legislation of the State concerned does not afford due process
of law for protection of the right or rights that have allegedly been
violated. 48.
The Bahamas is not a party to the American Convention, however,
for purposes of analysis the Commission refers to the Velasquez
Rodriquez Case[17]
in which the Inter-American Court construed Article 46 of the American
Convention on the issue of exhaustion of domestic remedies, which
provisions are similar to Article 31 of the Commission's Rules of
Procedure. In the Velasquez
case the Inter-American Court stated that for the rule of prior
exhaustion of domestic remedies to be applicable, the domestic remedies
of the State concerned must be available, adequate and effective in
order to be exhausted. The Court also opined that upon the party raising
that allegation of non exhaustion because of the unavailability of due
process in the State, the burden of proof shifts to "the State
claiming non-exhaustion and it has an obligation to prove that domestic
remedies remain to be exhausted and that they are effective."[18] 49.
The Commission finds that in the State's Reply to the petition
and in response to the Commission's request for information of its laws
relating to refugees, it admitted that "there is not yet in place
laws as regards the determination of refugee status." However, the
State contends that there available administrative procedures in place
in The Bahamas and persons claiming to be refugees are subject to these
procedures. In addition, the State maintains that the refugee
determination process is conducted in accordance with its international
obligations under the 1951 Convention Relating to the Status of Refugees
and its 1967 Protocol in conjunction with the UNHCR's officials, and
that 78 persons have been granted refugee status since becoming a party
to the Convention and its Protocol. 50.
It is important to note that Article 31(2) of the Commission's
Rules of Procedure provides for an exception to the exhaustion of
domestic remedies requirement under Article 31(1) of the Rules when
"the "domestic legislation" of the State concerned does
not afford due process of law for protection of the rights that have
allegedly been violated." The Commission notes that by its own
admission, the State has indicated that laws are not yet in place in The
Bahamas as regards the determination of refugee status, but rather that
such status is determined through an administrative procedure, followed
by a recommendation to the Executive for favorable consideration. The
Commission finds that there is a close connection between the question
of exhaustion of domestic remedies and the violations alleged on the
merits of the petition pertaining to the non-availability of processes
to the victims to assert their claims of refugee status.
Accordingly, the Commission decides to join the issue of
exhaustion of domestic remedies, and the timeliness of the petition to
the merits of the case. c.
Duplication of Procedures 51.
This petition satisfies the requirement of Article 33 of the
Commission’s Rules of Procedure because the information in the record
does not reveal that the subject matter of the petition is pending
settlement pursuant to another procedure before an international
governmental organization of which the State concerned is a member; nor
does it essentially duplicate 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, pursuant to
Article 33 (1) and (2) of the Commission's Rules of Procedure. d.
Colorable claim 52.
The Petitioners have alleged that the State has violated the
victims' rights under Articles I, II, V, VI, VII, XVII, XVIII, XXV, and
XXVII of the American Declaration. In addition, the Petitioners have
provided factual allegations that if proven would tend to establish that
the alleged violations might be well founded. The Commission therefore
concludes, without prejudging the merits of the case, that the petition
is not barred from consideration under Article 34 of its Rules of
Procedure.[19]
In addition, the Commission will consider the Petitioners claims
relating to Article 33 (non-refoulement) of the 1951 Convention Relating
to the Status of Refugees and its 1967 Protocol Relating to the Status
of Refugees in the merits phase of the petition. 53.
In accordance with the foregoing analysis, and without prejudging
the merits of this petition, the Commission decides to declare Articles
I, II, V, VI, VII, XVII, XVIII, XXV, and XXVII of the American
Declaration, admissible pursuant to Articles 34, of its Rules of
Procedure.
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, , V, VI, VII, XVII, XVIII, XXV,
and XXVII of the American Declaration. 2.
Join the issue of exhaustion of domestic remedies and the
timeliness of the petition to the merits of the case. 3.
Transmit this Report to the State of The Commonwealth of The
Bahamas and to the Petitioner. Done
and signed in the city of Washington, D.C., on the 27th day
of the month of February, 2002. (Signed): Juan E. Méndez, President;
Marta Altolaguirre, First Vice-President; José Zalaquett, Second
Vice-President; Robert K. Goldman, Julio Prado Vallejo, and Clare K.
Roberts, Commissioners. [ Table of Contents | Previous | Next ]
[1]
Article 29, is at present Article 25 of the Commission's new Rules
of Procedure. [2]
Article 29, is at present Article 25 of the Commission's new Rules
of Procedure. [3]
Article 34, has been reformulated and is now Article 31 of the
Commission's new Rules of Procedure. [4]
Article 42, now Article 39 of the Commission's new Rules of
Procedure. [5]
The Center for Justice and International Law (CEJIL), and
the Open Society. [6]
Keva Bain Esq., Counsel in the Attorney General's Office, and Mrs.
Edda Dumont Adolph, First Secretary/Legal Attache at the Embassay of
The Bahamas. [7]
The Petitioners claims and arguments on the merits are summarized
below, and will be referred to and addressed in the Report on the
merits of the petition. [8]Traveled
with his wife Maritza Morejohn Aday and their two daughters Middrey
Días Morejon (17) and Yusleidy Dias Morejon (15). [9]
Traveled with his 4 siblings Ameltran Lopez, Yuneon Lopez, Gerardo
Miguel Solis, and Elmer Rodriguez (5). [10]
Traveled with his father Luis Bu Escobar, his wife Lourdes Pelaez
Montenegro, and their son Yoeney Machado Pelaez (12). [11]Traveled
with his wife Maria F. Cabrales Santos, their daughter Lisset Perez
Cabrales (16), and their son Yunielky's de Leon, their daughter
Marilys Gomez, and his in-laws (mother and father in law and their
brother and sisters in law.) [12]
Manuel Ramon Reyes Lamela, Hector Jurjo Sanchez, Alexis Perez
Ricardo, Benedicto Graz Cuenca, Irel Broche Noa, Misnel concepcion
Portal, Osbel Valle Hernandez, Misael Santan Escobar, Luis Bu
Jimenes, Julian Noa Gonzalez, Alfredo Pinero Benavides, Helmer
Rodriguez Sanchez, Osmaidy Garcia Tamayo, Jesus Cabrera Mas, Jesus
Perez Torna, Ricardo Garrido Hortas, Osvaldo Raimundo de Leon
Alpizar, and Juan Manuel Ramos Rodriguez. [13]
Article 31(1) of the Commission's Rules of Procedure provides that:
"In order to decide on the admissibility of a matter, the
Commission shall verify whether the remedies of the domestic legal
system have been pursued and exhausted in accordance with the
generally recognized prinicples of international law. Article
31(2) states that the provisions of the preceding paragraph shall
not apply when (a)
the domestic legislation of the State concerned does not
afford due process of law for the protection of the right or rights
that have allegedly been violated. (b)
The party alleging violation of his or her rights has been
denied access to the remedies under domestic law or has been
prevented from exhausting them; or (c)
There has been unwarranted delay in rendering a final
judgment under the aforementioned remedies. [14]
The State arguments on the merits are summarized below, and will be
referred to and addressed in the Report on the merits of the
petition. [15]
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. [16]
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. [17]
Judgment of July 29, 1988 pages 112-113, paras 56-67citing
(Velasquez Rodríguez Case Preliminary Objections, supra 23,
para.88), Series C: Decisions and Judgments Nº4. [18]
Id. Supra para 59-60. [19]
Article 34 of the Commission’s Rules of Procedure provide that the
Commission shall declare a petition inadmissible when the petition
(a) does not state facts that tend to establish a violation of the
rights referred to in Article 27 of these Rules of Procedure; (b)
the statements of the petitioner or the State indicate that it is
manifestly groundless or out of order' or, (c) supervening
information or evidence presented to the Commission reveals that a
matter is inadmissible or out of order.
Article
27 of the Commission's Rules of Procedure provides that: "The
Commission shall consider petitions regarding alleged violations of
the human rights enshrined in the American Convention on Human
Rights and other applicable instruments, with respect to the Member
States of the OAS, only when the petitions fulfill the requirements
set forth in those instruments, in the Statute, and in these Rules
of Procedure. |