May 18, 1994, during an on-site visit
to the Republic of Haiti (hereinafter “Haiti”, the “Haitian State,” or
the “State”) to observe the human rights situation in that country1/,
the Inter-American Commission on Human Rights (hereinafter “the Commission”
or "the IACHR”) received a petition submitted by a young man named Ulrick
Pierre hereinafter (the “petitioner”).
In his petition Mr. Pierre claimed that his family had been attacked on
May 12, 1994, by agents of the State security forces, and that those agents
caused the death of Jean-Claude Pierre, Ulrick’s adoptive father, inflicted
bullet wounds on Ulrick himself, and threatened his sister, Jerseyla Adrien
complaint alleges that the State of Haiti violated the rights to life and to
humane treatment set forth in, respectively, Articles 4 and 5 of the American
Convention on Human Rights (hereinafter "the American Convention” or
"the Convention”), to which the State of Haiti has been a party since
September 27, 1977. The petitioner further argues that, in addition to the duty
of the State of Haiti to protect the right to life and to humane treatment of
its nationals, there is the obligation under Articles 8 and 25 of the American
Convention to ensure judicial protection when those rights have been violated.
petitioner reported these events to the pertinent authorities on May 12, 1994.
To date, the Commission has no knowledge of any investigation having been
carried out by the State.
its part, the Haitian State did not dispute the facts that prompted the
complaint. The State maintains that in no circumstances could it be responsible
for the human rights violations committed by the successive de
facto governments that were in power between September 30, 1991 and October
14, 1994, and that the perpetrators, who had no capacity to obligate the State,
should answer personally for their actions.
Having analyzed the acts denounced and the testimony of witnesses and
documentary evidence contained in the record, in light of the time that has
elapsed since the date on which those acts were committed, the Commission
concludes that the Haitian State is responsible for violating the rights to
life, physical integrity, fair trial, and judicial protection contained in
Articles 4, 5, 8, and 25 of the American Convention, for which reason the State
must adopt the necessary measures to provide redress for the damages caused to
the victims, under its general obligation, contemplated in Article 1(1) of the
Convention, to respect and guarantee those rights.
Given the established violations, the IACHR recommends that the State
conduct a serious, impartial, and exhaustive inquiry to determine the criminal
liability of those responsible for the murder of Jean-Claude Pierre and the
attack on Ulrick Pierre; that it determine if there were other crimes that
prevented an investigation into the events referred to; and that, where
appropriate, it apply the respective legal sanctions. Finally, the Commission recommends that the Haitian State pay
adequate compensation to Jean-Claude Pierre’s relatives on account of these
PROCESSING BEFORE THE COMMISSION
During the on-site visit, the OAS/UN International Civilian Mission in
informed the Commission of
the murder of Jean-Claude Pierre and the delicate condition of Ulrick Pierre,
who was in the hospital as a result of bullet wounds to his ear and neck.
On May 18, 1994, the Commission, accompanied by MICIVIH observers, went
to Diquini Hospital in Port-au-Prince, where it took a statement from Ulrick
Pierre. The Commission was able to
verify the wounds that had been inflicted on Ulrick Pierre.
On August 31, 1994, the Commission opened Case Nº 11.378 on behalf of
Jean-Claude Pierre, Ulrick Pierre, and Jerseyla Adrien Juste, and relayed the
pertinent portions of the complaint to the Government of Haiti, granting it a
period of 90 days in which to reply, in accordance with Article 34, clause 5, of
the Regulations of the IACHR.
On January 12, 1995, the Commission again requested information from the
State of Haiti relating to Case 11.378, granting it a period of 30 days to
As part of the processing of the case, by note of May 18, 1995, the
Commission offered its good offices for a friendly settlement procedure,
pursuant to Article 45 of the Regulations of the IACHR.
On May 23, 1995, the Commission reiterated its request to the State of
Haiti for information on the case and at the same time placed itself at its
disposal with a view to reaching a friendly settlement of the matter.
The Government of Haiti replied by note of June 28, 1995 and stated that
the letters that the IACHR had sent referred to acts that occurred during the
period of the coup d’état and that
"the perpetrators of those acts had no power invested in them that was
binding upon the Haitian State, that is to say, the constitutional government.
Accordingly, they would have to answer personally for all their actions, on both
civil and criminal counts." The
Government also mentioned some of the measures adopted by the State that were
intended to strengthen the mechanisms for protecting human rights, like judicial
reform, and a legal aid fund created in March 1995.
On July 15, 1995, the petitioner again wrote to the Commission and
reiterated the facts of the complaint. He
also stated that on July 6, 1994, he and his sister had been granted asylum in
France, and that the person in charge of their affairs was Mr. Juste Joseph
In a letter dated October 10, 1995, the Commission wrote to the Haitian
Government in reference to its note of June 28, stating the following:
Commission would remind the Government of Haiti that, as a state party to the
American Convention on Human Rights, it is duty-bound to undertake
investigations, impose penalties, and, if necessary, provide compensation to the
victims of the alleged violations. The Commission is not oblivious to the
difficult situation in the country and is conscious of the efforts that the
constitutional Government is making to strengthen the mechanisms for protecting
human rights. It is for that reason
that the Commission grants it a reasonable time in order to enable it to carry
out the investigations relating to the cases that the Commission is processing.
By note of May 15, 1996, the Government of Haiti reiterated its position
that the acts committed by the de facto government
between September 30, 1991 and October 14, 1994 were not binding upon the State.
The Government also pointed out that the report prepared by the National
Commission of Truth and Justice (hereinafter CNVJ) had been presented to the
Government, and that the Government was considering measures to implement the
recommendations contained in the CNVJ’s report.
Similarly, the Government referred to the establishment of a Criminology
Brigade under the Ministry of Justice to investigate all the crimes committed
and cases of missing persons reported in the country since September 30, 1991.
On February 2, 1999, the Commission requested updated information from
the Haitian State on the situation of Case Nº 11.378 relating to Jean-Claude
Pierre, Ulrick Pierre and Jerseyla Adrien Juste, granting it a period of 30 days
to reply. At the time that the Commission considered the instant
report, the above mentioned deadline had expired without a reply forthcoming
from the Haitian State on the information requested.
POSITIONS OF THE PARTIES
Position of the petitioner
The petitioner alleges that the attack on the Pierre family on May 12,
1994, which resulted in the death of his father, Mr. Jean-Claude Pierre, the
wounds sustained by Ulrick himself in the course of his attempted murder, and
the threats made to his younger sister, Jerseyla Adrien Juste, was perpetrated
by agents of the armed forces, who accused them of being lavalasiens.3
A complaint denouncing the acts was filed with the Justice of the Peace
of Croix des Missions, Jean Alex Civil, and with Corporal Blauture Joissaint of
the Cité Soleil Police Station (Avant Post) situated on the quay.
To date, the Commission is not aware that any investigation has been
carried out. In view of the danger
to their lives, Ulrick and Jerseyla obtained political asylum in France.
The petitioner alleges that, in addition to the duty of the State of
Haiti to protect the right to life and the physical integrity of its nationals,
the State is obliged to ensure legal protection when those rights have been
violated, pursuant to Articles 4, 5, 8, and 25 of the American Convention on
Position of the Haitian State
During the processing of the instant case the State did not dispute the
facts that prompted the complaint, which refer to the violations of the right to
life and to physical integrity of Jean Claude Pierre, Ulrick Pierre, and
Jerseyla Adrien Juste. The Haitian State maintains that under no circumstances could
it be responsible for the human rights violations committed by the successive de
facto governments in power between September 30, 1991 and October 14, 1994.
The State avers that the perpetrators, who did not have any power to bind
the State, should answer personally for their actions.
The State did not dispute the events denounced with respect to the
failure to investigate and provide judicial guarantees.
The State merely informed the Commission that a legal aid fund had been
set up in March 1995. The State
mentioned that the judiciary had not taken up ex
officio all the cases of human rights violations recorded in the country
during the three years of terror and complete lack of lawfulness.
However, a National Commission of Truth and Justice had been established
with a mandate to clarify all the crimes committed during that period.
By the same token, the Haitian State limited itself to reporting the
establishment of a Criminology Brigade under the Ministry of Justice to
investigate crimes committed since September 30, 1991.
At no point, however, did the State address the failure to investigate
the case in question. Furthermore, in spite of the fact that the State undertook
on May 15, 1996 to inform the Commission of all the arrangements made by the
government to find and punish the guilty parties in accordance with the law, to
date, it has not done so.
Competence of the Commission
The Commission is competent to take up the instant case, as it concerns
claims involving rights recognized in the American Convention, as provided for
in Article 44 of that Convention, to which the State of Haiti has been a party
since September 27, 1977. These rights include Article 1(1), regarding the
obligation to respect rights; Article 4, right to life; Article 5, right to
physical integrity; Article 8, right to a fair trial; and Article 25, right to
The petition satisfies the formal requirements of admissibility
contemplated in Article 46(1) of the American Convention and in Articles 32, 37,
38, and 39 of the Commission’s Regulations. Indeed, the petition refers to
facts that tend to establish a violation of the rights guaranteed by the
25. The Commission finds that the case of Jean
Claude Pierre, Ulrick Pierre, and Jerseyla Adrien Juste is not pending in
another international proceeding for settlement, in view of the fact that this
exception has not been alleged by the parties, nor is the subject of the said
petition substantially the same as one previously studied by the Commission or
by another international organization (Article 47(d) of the Convention).
Exhaustion of domestic remedies
As to exhaustion of domestic remedies, the petitioner alleges that the
facts were denounced by MICIVIH observers before the Justice of the Peace of
Croix des Missions, Jean Alex Civil, and before Corporal Blauture Joissaint of
the Cité Soleil Police Station, on May 12, 1994.
The State of Haiti did not dispute expressis
verbis the facts alleged by the petitioner with respect to exhaustion of
domestic remedies. In the instant
case, the Government failed to file within the prescribed time periods an
objection asserting non-exhaustion of domestic remedies.
Only after lengthy delays did the State reply to the Commission’s
requests for information, including those relating to domestic remedies.
Moreover, the information that the State did supply did not answer the questions
put by the Commission. The
foregoing constitutes a tacit waiver by the State of any objection to
admissibility based upon non-exhaustion of domestic remedies.4
The Commission finds that since May 12, 1994, the day the events
denounced occurred, an unreasonable amount of time has elapsed without an
investigation being carried out, as provided by the exception to prior
exhaustion of domestic remedies under Article 46, clause 2, paragraph c, of the
Convention and Article 37, clause 2, paragraph c, of the Regulations of the
For his part, the petitioner has stated that he denounced the human
rights violations before the authorities under the domestic jurisdiction
provided by the law of the State of Haiti.
However, the recourse to domestic remedies in the case of the Pierre
family was fruitless.
In this regard, the Inter-American Court of Human Rights has stated the
...when certain exceptions
to the rule of non-exhaustion of domestic remedies are invoked, such as the
ineffectiveness of such remedies or the lack of due process of law, not only is
it contended that the victim is under no obligation to pursue such remedies,
but, indirectly, the State in question is also charged with a new violation of
the obligations assumed under the Convention. Thus, the question of domestic
remedies is closely tied to the merits of the case.5
The Commission further finds that the six-month period contemplated in
Article 38(1) of the Regulations of the IACHR (ratione
temporis) for lodging a petition with the Commission, following the date on
which the party alleging violation of his rights has been notified of the final
ruling (res judicata), does not apply
since the case qualifies for the exception provided in Article 38(2) of the
Regulations. Article 38(2) provides that the deadline for lodging a petition
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.
In light of the foregoing considerations, the Commission concludes that
the instant petition satisfies the requirements of admissibility stipulated in
the American Convention and in the Commission Regulations.
Pursuant to the provisions of Article 48, clause 1, paragraph f of the
Convention and of Article 45 of its Regulations, the Commission placed itself at
the disposal of the parties with a view to reaching a friendly settlement of the
matter on the basis of respect for the human rights contained in the Convention.
The friendly settlement procedure did not succeed, however, owing to the
lack of response from the parties.
Analysis of the merits
Liability of the State
The State of Haiti did not specifically dispute the facts denounced
before the Commission. In its responses to the petitioner’s complaint, the State
claimed that in no circumstances could it be responsible for the human rights
violations committed by the successive de
facto governments in power in the country between September 30, 1991 and
October 14, 1994. The State
indicated further that the perpetrators, who did not have any power to bind the
State, should answer personally for their actions.
Accordingly, the Commission considers it pertinent to expound a number of
generally recognized principles of international law regarding the liability of
To begin with, the fact that the violations may have been committed by a
Government lacking democratic legitimacy does not alter the international
responsibility of the Haitian State. Indeed,
international law provides that a change of government outside the
constitutional rules, followed by a coup
d’état, nevertheless stems from the principle of the autonomy of states
to choose their political regime, and therefore that the previous state
continues to exist in spite of any constitutional and political changes to it.
The foregoing stems from the so-called principle of continuity of the
state, according to which the rights and responsibilities of the state are not
affected by a new internal form of government even though the source that
originated it might be illegal. The
Commission has ruled on the continuity of the state on frequent occasions, in
particular in the amnesty cases against the republic of Chile, where it stated
the regime that issued the law or the state organs that applied it or
facilitated its application, the state of Chile is responsible for the
violations incurred by Decree Law 2191, which was not repealed by the present
Legislative and which was applied by the Judiciary. Although the events occurred
under the previous military regime, the State of Chile still bears
responsibility, as these events have still not been investigated, nor has any
punishment been meted out.6
The Inter-American Court of Human Rights has confirmed that the
responsibility of the State exists independently of changes in government,
specifying the following:
to the principle of the continuity of the State in international law,
responsibility exists both independently of changes of government over a period
of time and continuously from the time of the act that creates responsibility to
the time when the act is declared illegal. The foregoing is also valid in the
area of human rights although, from an ethical or political point of view, the
attitude of the new government may be much more respectful of those rights than
that of the government in power when the violations occurred7.
Consequently, the Haitian State cannot avoid its international
responsibility, on the basis that the acts in violation of human rights were not
committed by its Government, or that the perpetrators had no power to bind the
State and should answer personally for their actions on both civil and criminal
counts. On this point, the Court
has held that:
international law a State is responsible for the acts of its agents undertaken
in their official capacity and for their omissions, even when those agents act
outside the sphere of their authority or violate internal law8.
The responsibility of the State means, however, that acts generating
responsibility can be classed as "acts of the State".
To that end, the generally recognized principles of international
responsibility specify an act of the state as any act by agents of the State or
by persons whose prerogatives are generally attributed to the state.9
Finally, the Commission finds on the question that “the perpetrators
should answer personally for their actions,” that the objective of
international human rights law is not for international organizations to punish
those individuals who are guilty of violations, but rather to protect the
victims and to provide for the reparation of damages resulting from the acts of
the states responsible.10/
devolves upon the State to respect the rights and freedoms recognized in the
American Convention, in such a way that any impairment of those human rights
which can be attributed under the rules of international law to the action or
omission of any public authority constitutes an act imputable to the State,
which assumes responsibility in the terms provided by the Convention.11
Violations of Articles 4 and 5 of the American Convention
Article 4 of the American Convention on Human Rights provides that,
"Every person has the right to have his life respected.
This right shall be protected by law and, in general, from the moment of
conception. No one shall be
arbitrarily deprived of his life.”12
Article 5 of the American Convention provides that every person has the
right to have his physical, mental, and moral integrity respected.
The testimonies of three individuals who witnessed the events denounced
(who requested that their names be withheld), which have not been refuted by the
Government, reveal that, on May 12, 1994, at around 3:00 a.m., four men dressed
as civilians (one of them wearing an olive drab army cap) and heavily armed with
revolvers and submachine guns, broke violently into the abode of the Pierre
family (at 0931 Rue Soleil # 17, Cité Soleil).
The assailants, unable to open the steel door of the trading store owned
by Mr. Pierre, made a hole in the cement wall leading to the Pierre’s house.
The four men then beat two members of the family,
namely Jean Claude Pierre (aged 40) and Ulrick Pierre (aged 19), insulting them
and referring to them as lavalasiens,
while also demanding money from them. According
to the complainant, the assailants then tied the arms of Jean-Claude Pierre and
Ulrick Pierre with a length of electric cable, took them out into the street,
and shot Jean-Claude Pierre in the ear. Then
they shot Ulrick Pierre in the neck and, believing him dead, left him where he
lay. The attackers left Jean-Claude Pierre’s corpse without
taking the two gold rings he was wearing or any goods from the shop. Ulrick’s
sister, Jerseyla Adrien Juste (aged 17), was released after being threatened.
Ulrick was taken to the General Hospital.
Observers with the OAS/UN International Civilian Mission, who were
investigating another case, then took Ulrick to Diquini Hospital in Carrefour at
the request of one of his relatives, who feared that the assailants would find
out where he was and murder him. At
Diquini Hospital, the IACHR lawyer took a statement from Ulrick and was able to
verify the wounds that he had sustained.
During the processing of the case, Ulrick Pierre named two of the persons
who had participated in the attack and murder of Jean-Claude Pierre as Corporal
Louis-Mar, a guard at the National Palace, and Sergeant Linisse, of the Cité
Soleil Police Station (Avant Post). According
to Ulrick, Sergeant Linisse gave the order to kill him and his father.13
The events denounced were not disputed by the State. The State’s
response does not specifically address the violations that took place on May 12,
1994, but rather asserts in a general manner that it cannot be responsible for
the violations committed in Haiti between September 29, 1991 and the October 14,
The absence of a substantive response by the State to the facts alleged
would be sufficient to permit the Commission to take the events denounced by the
petitioner as being true. Bearing
in mind, however, the various circumstantial and conclusive evidence in this
case, particularly the political connotations of the attack on the Pierre
family, which was accused of supporting the political regime of the President
deposed by the de facto military
government, the Commission cannot disregard additional grave facts relating to the de
facto government which pursued or
tolerated a practice of repression and terror against a defenseless people from
1991 to 1994.15
In its 1995 Special Report on the Situation of Human Rights in Haiti, the
Commission stated that an estimated 3,000 people had been murdered since the coup
d’état on September 29, 1991.
following the signing of the Governors Island Agreement, the repression
escalated to alarming levels when the people, encouraged by this agreement,
publicly expressed their support for President Aristide. Cases of arbitrary
arrest, beating, illegal search, confiscation of goods and arson, abduction, and
torture increased, and this forced victims and their family members to abandon
their homes and live underground. President Aristide stated, mid-1994, that the number of
deaths had risen to 5,000..16
On the occasion of its on-site visit to Haiti in May 1994, the Commission received
information on 210 cases of extrajudicial executions recorded between February
and May that year. The OAS/UN
International Civilian Mission established 340 cases reported between February
and June 1994.17
The Commission obtained
testimonies that irrefutably established the army's responsibility in the
massacre of defenseless people in March 1994. These attacks all showed similar
characteristics: veritable military campaigns in which army units, assisted by
FRAPH and other paramilitary groups, surrounded and erupted in localities under
the pretext of combating subversive groups and locating illegal arms,
indiscriminately beating up people and committing acts of arson, destruction of
their crops and robberies, followed by arbitrary arrest.18
During the aforementioned on-site visit,
the Commission also observed that most human rights violations of which it was
apprised followed a systematic pattern of repression, which in turn revealed a
political plan of intimidation and terror against the Haitian people, especially
in sectors that supported President Aristide or that had demonstrated in
favor of democracy in Haiti. Thus, in the marginal slums of Port-au-Prince, such
as Cité Soleil, armed paramilitary groups carried out raids late at night,
murdering and robbing its residents.19
In its 1995 Report, the Commission concluded that "the serious
deterioration of the human rights situation was in keeping with a plan of
intimidation and terror against defenseless people and it held the authorities
holding de facto power in Haiti
accountable for these violations."20/
The testimonies and documentary evidence obtained by the Commission in
the course of its on-site visit in Haiti, which took place over the same period as the
murder of Jean Claude Pierre, as well as the manner in which the attack on the
Pierre family’s house was perpetrated (excessive use of force to destroy a
cement wall, late at night, carrying weapons normally used by members of the
army or paramilitary groups, acting with complete impunity), are sufficient to
establish the participation or complicity of the de facto authorities.
Based upon the foregoing, the Commission is convinced that that attack
against the petitioner and his family formed part of a practice of intimidation
pursued by the de facto military
government against anyone who supported the democratic regime. Accordingly, the
Commission concludes that agents of the de
facto military government violated the right to life to the detriment of
Jean Claude Pierre, and the right to physical integrity to the detriment of
Ulrick Pierre, both these rights being contained in Articles 4 and 5,
respectively, of the American Convention.
With regard to Ulrick’s younger sister, Jerseyla Adrien Juste, who was
at the scene of the events, the MICIVIH and the IACHR were able to obtain an
eyewitness statement from her immediately after the violations were committed.
However, the evidence does not establish that she was the victim of an
attack on her person that endangered her physical or mental integrity, as set
forth in Article 5 of the American Convention.
Right to judicial protection
The responsibility of the State of Haiti in this case also relates to
Article 25 of the American Convention, which stipulates that:
The States Parties undertake:
to ensure that any person claiming such remedy shall have his rights
determined by the competent authority provided for by the legal system of the
to develop the possibilities of judicial remedy; and
to ensure that the competent authorities shall enforce such remedies when
Under Article 25 of the Convention, the petitioner and victims’
relatives have the right to a simple and prompt recourse, or any other effective
recourse, against acts that violate their fundamental rights recognized by the
Constitution and by the American Convention.
The record before the Commission indicates that on May 12, 1994, the
MICIVIH observers testified before the Justice of the Peace of Croix des
Missions, Mr. Jean Alex Civil, and before Corporal Blauture Joissaint of the Cité
Soleil Police Station on the events underlying the petitioner’s complaint.
However, the competent authorities did not open an investigation, despite
the fact that Article 19 of the Code of Criminal Procedure of Haiti stipulates
established authority and any functionary or official who, in the performance of
their duties, learns of a crime or of an offense, must immediately advise the
Sheriff of the authority under whose jurisdiction that crime or that offense has
allegedly been committed, or in which the suspect may have been found, and
convey to that magistrate all related information, oral proceedings, and written
The Haitian State did not refute the lack of judicial protection
denounced in the present case. On the contrary, it stated that, “The judiciary has not
taken up ex officio all the cases of
human rights violations recorded in the country during the three years of terror
and complete lack of lawfulness. However,
a National Commission of Truth and Justice had been established with a mandate
to clarify all the crimes committed during that period.”21
The Commission notes that the State recognized expressis
verbis its incapacity to take up ex
officio every case involving human rights violations.
However, it should also be mentioned that the instant case concerns a
murder offense, which is prosecutable ex
officio, and in respect of which the Commission has repeatedly requested
information from the Government.
The State also refers to Haiti’s National Commission of Truth and
Justice (CNVJ) as an institution designed to remedy human rights violations.
However, the Commission believes that the CNVJ does not constitute a
legal institution or body whose decisions carry the authority of res
judicata. In legal terms, the scope and mission of the CNVJ are relatively
limited, since it does not have the legal competency to mete out punishments or
to award compensatory damages to victims. Accordingly,
this institution cannot reasonably be considered an adequate substitute for
judicial proceedings that ensure an effective recourse.
The Inter-American Court has interpreted Article 25(1)
to ensure not only a simple and prompt recourse, but also an effective recourse
for protection of the rights recognized in the Convention.22
Indeed, Article 25(1) incorporates the principle recognized in
international human rights law of the effectiveness of the procedural
instruments or means designed to guarantee such rights.23
It is not sufficient that the remedy in question be formally recognized
by the system of laws of the State. Rather,
the State must develop the possibilities of an effective remedy, and that remedy
must be substantiated in accordance with the rules of due process of law.24
Article 25(1) recognizes the procedural institution of amparo,
which is a simple and prompt judicial remedy designed for the protection of all
the rights recognized in the Convention and in the constitutions and laws of the
states parties. The effectiveness
of the remedy provided for under Article 25 can be undermined if, as the Court
has said, the Judicial Power lacks the necessary independence to render
impartial decisions or the means to carry out its judgments, in any other
situation that constitutes a denial of justice, for example, when there is an
unjustified delay in the decision, or when, for any reason, the alleged victim
is denied access to a judicial remedy.25
The facts in the present case reveal the failure of a simple, prompt, and
effective remedy to respond to the victim’s claims to his right to justice.
The time taken by the Haitian authorities to pronounce on the events
denounced (nearly five years), is a further indication of the ineffectiveness of
the judicial system in affording protection of rights contained in the American
The petitioners went before the jurisdictional organ provided by the Law,
in order to seek a judicial remedy that would enable them to bring a criminal
proceeding against the persons who violated their rights.
This demonstrates that the petitioner had free access to that remedy.
However, the Commission takes the view that the right to effective judicial
protection provided in Article 25 is not exhausted simply by free access to and
processing of the judicial remedy. It
is necessary that the organ involved reach a reasoned conclusion on the merits
of the claim, and that it establish the admissibility or inadmissibility of the
legal claim that specifically gives rise to the judicial remedy.26
Moreover, the tribunal’s final decision constitutes the basis of the
judicial remedy recognized by Article 25 of the American Convention, as the
decision will entail indispensable individual guarantees and obligations for the
In the instant case, the authorities (the Croix des Missions Court)
before which the violations were denounced ignored the claim for justice.
The Commission finds that the inaction of the competent authorities had
the effect of rendering the petitioner unable to obtain an effective judicial
remedy that would enable him to institute a criminal proceeding against alleged
acts in violation of his rights.
The Commission finds that the internal logic itself of any judicial
remedy, especially as provided by Article 25, indicates that Judge must firmly
establish the truth or the error in the claimant’s allegation.
The claimant goes before the judicial organ to allege an infringement on
his rights, and the organ in question, after a procedure to consider evidence
and arguments concerning that allegation, is under obligation to decide whether
the claim is sound or unsound. Otherwise,
the judicial remedy would be incomplete.
Apart from being incomplete, the judicial remedy would be plainly
ineffective since, by not enabling the violation of rights to be recognized, it
would not be adequate to protect the infringed right of the individual nor to
provide him fitting redress in the event that violation were proven.
The Inter-American Court has ruled that:
to this principle, the absence of an effective remedy to violations of the
rights recognized by the Convention is itself a violation of the Convention by
the State Party in which the remedy is lacking. In that sense, it should be
emphasized that, for such a remedy to exist, it is not sufficient that it be
provided for by the Constitution or by law or that it be formally recognized,
but rather it must be truly effective in establishing whether there has been a
violation of human rights and in providing redress. A remedy, which proves
illusory because of the general conditions prevailing in the country, or even in
the particular circumstances of a given case, cannot be considered effective.27
The Commission notes that the provision contained in Article 25, clause
2, paragraph a, itself expressly establishes the right of any person claiming a
judicial remedy to “have his rights determined by the competent authority
provided for by the legal system of the state".28 To
determine such rights involves making a determination of the facts and the
alleged right, that will have legal force and that will bear on and deal with a
specific object. This object is the claimant’s specific claim. When, in this
case, the Court of the Justice of the Peace of Croix des Missions ignored the
petitioner’s claim, it failed to determine the petitioner’s rights or to
analyze his claim’s soundness. As
a result, the State prevented the petitioner from enjoying the right to a
judicial remedy under the terms of Article 25.29
Right to a fair trial
Under Article 8(1) of the American Convention:
As mentioned, the acts in violation of human rights at issue in this
petition were denounced before the Justice of the peace of Croix des Missions on
May 12, 1994. However, the
authorities did not initiate any judicial proceeding.
The Commission finds that the fact that nearly five years have elapsed
since the events occurred without the commencement of a criminal suit
demonstrates that no serious investigation has been carried out.30
The foregoing renders the State responsible on the international plane.
In this respect, the Inter-American Court of Human Rights has stated the
duty to investigate, like the duty to prevent, is not breached merely because
the investigation does not produce a satisfactory result. Nevertheless, it must
be undertaken in a serious manner and not as a mere formality preordained to be
ineffective. An investigation must have an objective and be assumed by the State
as its own legal duty, not as a step taken by private interests that depends
upon the initiative of the victim or his family or upon their offer of proof,
without an effective search for the truth by the government. This is true
regardless of what agent is eventually found responsible for the violation.
Where the acts of private parties that violate the Convention are not seriously
investigated, those parties are aided in a sense by the government, thereby
making the State responsible on the international plane.31
Considering that the case was not examined in a judicial proceeding and
that four years and ten months elapsed without an investigation of the events
that would enable the corresponding criminal proceedings to be instituted to
identify and punish the guilty parties, the Commission concludes that Haitian
State failed to satisfy the requirement regarding reasonable time stipulated in
Article 8(1) de the American Convention.
Obligation to respect rights
The correlative obligations of Haiti under Articles 4, 5, 8, and 25 of
the Convention relate to the obligations assumed by states parties under Article
1 to ensure to all persons subject to their jurisdiction the free and full
exercise of the rights and freedoms recognized by the applicable domestic laws
and by the American Convention. The
violations described show that the State of Haiti failed to fulfill the
obligation contained in Article 1, clause 1, of the Convention to respect the
rights and freedoms recognized in the Convention and to ensure to all persons
subject to its jurisdiction the free and full exercise of those rights and
ACTIONS TAKEN AFTER REPORT Nº 47/99
On March 12, 1999, the Commission approved Report 47/99 on this case,
pursuant to Article 50 of the Convention, and transmitted it to the Haitian
State, with its respective recommendations.
The Commission set a two-month deadline for compliance with its
this deadline has passed, the Haitian State has not presented its observations
on Report Nº 47/99.
75. The Commission concludes that the State of
Haiti is responsible for the violation of the right to life to the detriment of
Jean Claude Pierre, and the right to physical integrity to the detriment of
Ulrick Pierre, these rights being enshrined in Articles 4 and 5 of the American
The State of Haiti has not adopted effective measures to ensure the
rights of the victims to a fair trial and to judicial protection.
This omission on the part of the State constitutes a violation of
Articles 8 and 25 of the Convention, which together establish the right to those
effective measures. The State of Haiti has failed to fulfill the obligations
assumed under Article 1, clause 1 of the Convention to respect and ensure the
free and full exercise of the rights and freedoms under the Convention.
77. Based on the analysis and conclusions
contained in the instant report,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS REITERATES THE FOLLOWING
RECOMMENDATIONS TO THE STATE OF HAITI:
Carry out a thorough, impartial, and effective investigation to ascertain
the circumstances surrounding the death of Jean
Claude Pierre and the injuries to Ulrick Pierre on May 12, 1994, in order to
identify and punish those responsible in accordance with Haitian law.
Adopt the necessary measures for the relatives of the victims named in
the first paragraph of the instant report to receive adequate and timely
compensation for the violations established herein.
December 8, 1999, the Commission sent Report Nº 116/99--the text of which is
above--to the Haitian State and to the petitioners, in keeping with Article
51(2) of the American Convention; and it set a deadline of one month for the
State to comply with the foregoing recommendations.
In accordance with Article 51(2), the Commission, in this phase of the
process, shall confine itself to assessing the measures taken by the Haitian
State to comply with the recommendations and to remedy the situation under
review. The Haitian State has not
presented its observations on Report Nº 116/99.
and pursuant to Articles 51(3) of the American Convention and 48 of the
Commission’s Regulations, the Commission decides: to reiterate the conclusions
and recommendations contained in Chapters VI and VII supra; to publish this report; and to include it in the
Commission’s Annual Report to the General Assembly of the OAS. Pursuant to the
provisions contained in the instruments governing its mandate, the IACHR will
continue to evaluate the measures taken by the Haitian State with respect to
those recommendations, until the State has fully complied with them.
and signed at the headquarters of the Inter-American Commission on Human Rights,
in the city of Washington, D.C., on this 24th day of February 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 As a result of the political
crisis and the grave human rights situation in Haiti, the IACHR conducted
several on-site visits to observe
the situation in that country. The
military coup d’état directed
by General Raoul Cédras deposed the constitutional president, Jean Bertrand
Aristide, on September 29, 1991. Hundreds
of President Aristide’s supporters were murdered in the days following the
coup d’état. A campaign of killings and intimidation was instituted
against all those who supported a return to democracy, and was stepped up in
the years that followed.
The Organization of American States, concerned by the
alarming number of human rights violations, used every means to put an end
to those violations and to initiate, in close coordination with the United
Nations, a policy of dialogue with the de
facto authorities. During
the political crisis in Haiti, the IACHR never failed to accord priority to
the human rights situation in that country.
Accordingly, the IACHR made on-site
visits in December 1991, August 1993, May 1994, October 1994, and March
1995. Each year the IACHR
presented special reports on the situation of human rights in Haiti to the
OAS General Assembly.
2 The mandate of the OAS/UN
International Civilian Mission set up in Haiti in 1992 is to observe the
human rights situation in that country.
a term used to refer to those who supported President Jean-Bertrand
Aristide’s Lavalas Party.
4 Velásquez Rodríguez Case, Preliminary Objections,
Judgement of June 26, 1987, Inter-American Court of Human Rights, Series C
No. 1, para. 88.
5 Velásquez Rodríguez Case,
Preliminary Objections, Judgement of June 26, 1987, Inter-American Court of
Human Rights, para. 91, p.40.
6 Report Nº 25/98 on Cases 11.505, Alfonso René
Chanfeau Orayce; 11.532, Agustín Eduardo Reyes González; 11.541, Jorge Elías
Andrónico Antequera and his brother Juan Carlos, and Luis Francisco González
Manriquez; 11.546, William Robert Millar Sanhueza and Jorge Rogelio Marín
Rossel; 11.549, Luis Armando Arias Ramírez, José Delimiro Fierro Morales,
Mario Alejandro Valdés Chávez, Jorge Enrique Vásquez Escobar, and Jaime
Pascual Arias Ramírez; 11.569, Juan Carlos Perelman and Gladys Díaz Armijo;
11.572, Luis Alberto Sánchez Mejías; 11.573, Francisco Eduardo Aedo
Carrasco; 11.583, Carlos Eduardo Guerrero Gutiérrez; 11.585, Máximo
Antonio Gedda Ortiz; 11.595, Joel Huaiquiñir Benavides; 11.652, Guillermo
González de Asís; 11.657, Lumy Videla Moya; 11.675, Eulogio del Carmen
Ortiz Fritz Monsalve; and 11.705, Mauricio Eduardo Jorquera Encina. See
IACHR 1997 Annual Report, OEA/Ser.L/V/II. 98, doc. 6, rev., April 13, 1998,
pp.520-559. See IACHR 1996 Annual Report, Report Nos. 36/96 and 34/96,
Chile, pp.162-240. On this
point see also Greek Case, in Yearbook of the European Convention on Human
Rights, 1969, Martinus Nijhoff, The Hague, 1972.
7 Velásquez Rodríguez Case, Judgement of July 29,
1988, Inter-American Court of Human Rights, para. 184, p.76.
8 Ibid, para.
170, p. 70.
9 See Henkin, Pugh, Schachter, and Smit, International
Law: Cases and Materials, West Publishing Company, St. Paul, Minn, 1980,
10 Velásquez Rodríguez Case, Judgement of July 29,
1988, Inter-American Court of Human Rights, p.51.
11 Ibid, para.
12 Haitian law also protects the right to life, Article
19 of the 1987 Constitution establishing that, "The state has the
overriding obligation to guarantee the right to life, to health, and respect
for the person of every citizen without distinction, in accordance with the
Universal Declaration of Human Rights".
By the same token, Article 20 of the Constitution resolves the
abolition of the death penalty in all matters.
13 Additional information
presented by the petitioner on July 15, 1995.
14 See communications from the
Haitian State of June 28, 1995 and May 15, 1996.
15 See IACHR Special Reports on
the Situation of Human Rights in Haiti, 1993, 1994, and 1995.
16 Report on the Situation of Human Rights in Haiti, doc.
OEA/Ser.L/V/II.88, doc. 10 rev., February 9, 1995, CIDH/OEA, pp.34 and 36.
17 Ibid., p.
18 Ibid., p.
20 Ibid., p.
21 Communication from the Haitian State of June 28, 1995.
22 Judicial Guarantees in States of Emergency (Arts.
27(2), 25 and 8 of the American Convention on Human Rights), Advisory
Opinion OC-9/87 of October 6, 1987, Inter-American Court of Human Rights. (Ser. A) Nº 9 (1987), para. 23.
23 Ibid, para.
24 Velásquez Rodríguez, Fairén Garbi and Solís
Corrales, and Godínez Cruz Cases, Preliminary Objections, Judgements of
June 26, 1987, Inter-American Court of Human Rights, paras. 91, 90, and 92,
25 Judicial Guarantees in States of Emergency (Arts.
27(2), 25 and 8 of the American Convention on Human Rights), Advisory
Opinion OC-9/87 of October 6, 1987, Inter-American Court of Human Rights. (Ser. A) Nº 9 (1987), para. 24.
26 The Commission has expressed its understanding in
relation to Article 25 of the Convention on several occasions. See Case
10.950 "Mejía Egocheaga".
27 OC-9/87, para. 24.
28 Article 13 of the European Convention on Human Rights
provides that: "Everyone
whose rights and freedoms as set forth in this Convention are violated shall
have an effective remedy before a national authority notwithstanding that
the violation has been committed by persons acting in an official
capacity.” In the Case of Silver and others, Judgement of March 25, 1983,
the European Court, established in reference to Article 13 that, "The
principles that emerge from the Court's jurisprudence on the interpretation
of Article 13 (art. 13) include the following: (a) where an individual has
an arguable claim to be the victim of a violation of the rights set forth in
the Convention, he should have a remedy before a national authority in order
both to have his claim decided and, if appropriate, to obtain
29 See Case 10.087, Report 30/97, Argentina, OEA/Ser/L/V/II.97
30 See Case of Genie versus Nicaragua, submitted by the
IACHR to the Inter-American Court of Human Rights on January 6, 1994; see
also Report Nº 17-89, Case Nº
10.037, Mario Eduardo Firminich, in IACHR 1988-1989 Annual Report, p. 38.
31 Velásquez Rodriguez Case, Judgement of July 29, 1988, para. 177, pp.72 and 73.