Administration of Justice

 

116.          It is apparent from the information available that the lack of progress on security has been attributable in part to deficiencies in the state of the administration of justice in Haiti. The sources available to the Commission have indicated that the justice system remains severely weak, slow and continues to suffer from fundamental failings. These include a severe shortage of resources for judges, magistrates, courts, and the police as well as prevalent due process violations such as the prolonged detention of individuals without being brought before a judge. Further, reports of widespread corruption across the public sector, including the judiciary has had a serious impact on the duty to guarantee a fair trial and judicial guarantees under articles 8 and 25 of the American Convention. As indicated above, the police and judges have also become victims of the violence, having become targets in attacks by armed groups in some cases and preventing them from freely exercising their official duties.

 

117.          The Commission has also taken note of information indicating that some instances of unlawful killings and abuse of force may be attributable to the police.[140] However, far more cases of mistreatment and beatings have been reported during the year, both at the time of arrest and while in police custody. Human rights reports have documented cases of police officers regularly engaging in the abuse of force especially with criminal suspects in their custody.[141] Several detainees have reported being the victims of beatings and torture during police interrogations, especially at the holding cell at the Central office of the Judicial Police (Direction Centrale de la Police Judiciaire). Human rights monitors have regularly interviewed detainees and witnessed physical evidence of the abuse and mistreatment, which according to monitors, has become systematic in the holding cells of police stations across the country.[142] Some of the officers responsible for these acts have been apprehended and prosecuted for their actions; while others who were in the custody of the state for alleged crimes, have reportedly been released by judges even though incriminating evidence was presented against them. This was similarly the case of two senior officers arrested for their suspected roles in the killings in Martissant (August 2005) and Grand Ravine (July 2006) but were released by a judge in March 2006.[143]  Accordingly, the Commission emphasizes the need for police recruits to receive robust training in the area of human rights, including the international rules and principles governing the use of force, and that any allegations of police involvement in killings and other human rights abuses are promptly and effectively investigated and those responsible are tried and punished.

 

118.          The Commission is also concerned about apparent arbitrary arrests and detentions that appear to have increased during 2006, largely due to the police’s aggressive efforts to apprehend suspected criminals, and in several cases, by conducting mass arrests of at least twenty to thirty people at once. Reports indicate that as of October, there were a total of 4599 detainees being held in detention facilities across the country, with a mere 749 of this total having been convicted.[144] Also, as the police step up their operations to apprehend criminals, monitors have reported that on one occasion in July, 24 out of 29 individuals were being detained illegally[145] in the holding cell at the DCPJ, while on a separate occasion, 25 out of 28 individuals were being held without having seen a judge. The Commission notes that the perpetration of arbitrary arrests and detentions is not a new problem in Haiti but has been the subject of criticism by the Commission in the past.[146] Accordingly, the Commission while stressing the importance of crime prevention and apprehending dangerous criminals to ensure greater security for the population, the Commission once again emphasizes the prohibition against arbitrary arrests and detentions enshrined in Article 7 of the American Convention, and reiterates the State’s obligation to ensure that its efforts to investigate and prosecute crimes are undertaken through demonstrably fair and effective procedures that conform to international standards of due process, including a detainee’s right to be promptly notified of the charge or charges against him and to be brought promptly before a judge.

 

119.          As with previous years, the Commission continued to receive reports of violence against and among inmates in prisons and other detention facilities, as well as generally substandard and overcrowded conditions in those institutions, and in many cases such conditions constituting a critical health risk to the inmates. According to a director of the prison administration interviewed in 2005, only 17 of Haiti’s 22 prisons were actually functional,[147] and to date, no reports of their repair have been received. In particular, petitioners during the Commission’s 126^th Regular Period of Sessions elaborated on the extremely dire conditions of detainees in Gonaives, the prison which was destroyed and never rebuilt. Poor conditions have led to several jailbreaks around the country. On May 14, 2006 inmates broke the locks of their door cells at the National Penitentiary (Port-au-Prince) the same day René Preval was being sworn in as President of Haiti. Armed with bottles and sharp instruments, with several wounded.[148] A similar incident was registered in Arcahaie’s penitentiary on August 27, 2006 where six convicts escaped. It is said that those events are the results of negligence from authorities because the prisons are not well managed and are under financed.[149]

 

120.          Further, human rights monitors indicate that prisoners and detainees are continuing to suffer from a lack of access to potable water, proper sanitation, sufficient and nutritious food, and their cells are bare, small, and lack adequate ventilation and light, with most detainees subject to 24-hour confinement. In many cases, due to overcrowding and poor facilities and a history of prison breaks across the country, authorities indicate that the lack of security of the facilities prevents them from allowing detainees leisure outside their cells.[150] Likewise, access to health services at the detention facilities is generally lacking, causing the increase and spread of preventable diseases such as beriberi, dysentery, and tuberculosis, and in some cases, such illnesses have claimed the lives of detainees solely due to the lack of access to adequate and timely medical care. As with the issue of arbitrary arrests and detention, violence and poor conditions in prisons is not a new problem in Haiti, and the Commission strongly reiterates its call for the State to ensure that persons subject to detention or imprisonment are not the victims of violence or other ill-treatment at the hands of state agents or other inmates and are not subjected to conditions that fail to satisfy minimum international standards for the treatment of detainees, including those under the UN Standard Minimum Rules for the Treatment of Prisoners.

 

121.          The Commission has received information that the State is publicly committed to introducing a number of reforms in the area of the administration of justice in particular through the elaboration of policy reforms and initiatives in these areas. The Commission has received information that the Ministry of Justice has elaborated a plan for reform and has also presented three draft laws for consideration by the parliament. The reforms reportedly address the independence of the judiciary, the status of judges and constitutional procedures for appointment, terms and removal from office. Further, the draft law on the creation of a Superior Council for the judicial branch was reported to have been passed recently. There is also a plan to construct 123 peace tribunals, seven courts of first instance, and seven courts of appeal.[151] The Commission is encouraged by these initiatives taken by the Ministry of Justice and hopes that the efforts to address the problem of prolonged pretrial detention and other longstanding issues in the judicial system, initiated in 2005 under the previous Justice Minister, will be maintained and enhanced during the current Preval administration. The Commission further welcomes the announcement made by the HNP reiterating its public commitment to maintaining the vetting procedure in order to cleanse the force of criminals and/or persons with records of violating human rights.

 

Impunity

 

122.          Connected with the weak state of administration of justice in Haiti is the ongoing problem of impunity for past human rights abuses and crimes. In recognition of the problem, the government has demonstrated efforts to address this issue through the holding of criminal trials in the latter half of 2006. The Commission notes with satisfaction the holding of these trials between the months of July to September by the first instance courts in several parts of the country, resulting in a reported total of 232 cases heard, of which 181 suspects were convicted. Port-au-Prince had the highest number of cases heard, resulting in 72 convictions. In particular, of the cases heard in Port-au-Prince, 31 dealt with abductions and kidnappings of which 18 suspects were found guilty (a few police officers), and 11 convictions for the rape of minors.[152] At the same time, several deficiencies were noted by monitors, such as in many cases indigent clients frequently did not have a lawyer to represent them in court, and in the cases where a legal representative was present, they were frequently not prepared to adequately represent their client as they had not been sufficiently briefed about the case beforehand. The problem of adequate legal representation for defendants in criminal proceedings is one that has been noted in the past and the Commission hopes that the Ministry of Justice will seek appropriate solutions to address this need in order to ensure that defendants enjoy their rights to a fair trial and judicial guarantees are protected in the Haitian Constitution and the American Convention on Human Rights.

 

123.          On the other hand, also during 2006 the Commission continued to receive information regarding serious human rights abuses, which have not received adequate attention or follow-up by the judicial authorities. In particular, in July 2006, the incident in Grand Ravine claimed the lives of 22 members of the community, including nearly half of the victims being women (5) and children (4) but investigation reports have not been published and monitors indicate that investigations have not progressed in recent months.[153] Further, the Haitian judiciary has not yet ensured justice for past cases, such as the murder of journalists, Jean Dominique, Jacques Roches, and Brignol Lindor, nor has it succeeded in investigating, prosecuting and punishing perpetrators of outstanding atrocities such as the killing of 13 individuals in Fort National in 2004, and the hundreds of cases of abduction and rape that have become a near daily occurrence, and in which members of the HNP are suspected of being involved. The Commission expresses its concern over the continuing impunity in these cases.

 

124.          Finally, the Commission welcomes the recent efforts made by the judiciary to hear pending criminal cases and hopes that this initiative is maintained and enhanced in order to address the numerous cases of impunity, which remain a challenge for judicial authorities to overcome and may require innovative approaches to resolving longstanding human rights cases from years past. In respect of these matters, the Commission reiterates its concerns regarding the State’s obligation to end impunity for all human rights abuses through demonstrably fair and effective procedures that conform with international standards, as well as the corresponding right of all persons to due process of law and to be heard by a competent, independent, and impartial tribunal, without discrimination of any kind. The Commission has also noted that although certain legal procedures may comply with domestic law, the State is obliged to ensure that the investigation, prosecution and punishment of human rights violations accord with international standards. The Commission considers it important to emphasize the State’s responsibility to investigate and prosecute human rights abuses in accordance with the foregoing standards whoever may be responsible and whenever those abuses may have occurred. In light of the task ahead, the Commission emphasizes the important role of the international community to support the reinforcement of the judicial system in Haiti, and hopes that it will lend crucial support to the Haitian judiciary, especially through the donation of financial resources and equipment, reconstruction of court houses, training for judges, technical assistance and the implementation of reforms to transform an archaic judicial system to one that reflects current standards of justice.

 

Situation of Particular Persons and Groups

 

125.          The Commission’s concerns during 2006 have also included circumstances relating to groups of particular focus in the Commission’s work, including women, children, human rights defenders, and journalists. Women in Haiti have been the victims of gender discrimination affecting their participation in government and the national economy as well as being the targets of a number of abuses ranging from sexual violence, trafficking in persons and domestic violence. Women are particularly hard-hit by serious deficiencies in the health and education systems. In particular, information received by the Commission from 2005 to date, indicates that with the increase of criminal violence in the capital city, there has been an acute increase in the number of cases of sexual violence against women and girls either during raids and abductions by armed groups, or forcibly using them as accomplices in their criminal activities.[154] Even more alarming, information received indicates that some young women are being forced to provide sexual services for gang members, which has also contributed to an increase in the number of HIV/AIDS infection cases. In a study conducted by Action AID, nearly half of the 23 kidnapping victims interviewed, involved rape of the female victim.[155] The incidence of rape of women and children remains high, as long as the aggressors are not brought to justice for their crimes. Although the law prohibits the act of rape, and in 2005, the law was amended to enhance the punishment for rape, the Commission is aware of few cases that have reached the stage of prosecution and punishment, and can cite at least one emblematic case where the aggressors where held accountable for their acts, a case of collective rape of a mother, Mrs Jules, and her daughter, Yveline Adrass, the daughter killed after she denounced the rapists.[156] Further, the impact of the violence on women has caused an increase in the rate of suicide by victims, who are frequently ostracized from society due to this form of abuse, and who, as a result, commonly experience severe emotional trauma, without having access to psychosocial counseling to treat this condition.[157] In response to the escalation of violence, journalists and advocates who speak out against gang activity, human rights abuses or corruption in the judiciary have received reprisal attacks and threats from armed groups, creating an atmosphere of fear and intimidation within society and reinforcing the sate of impunity for crimes and human rights abuses. The Commission condemns incidents of this nature and has continued to emphasize the State’s obligation to investigate allegations of such violence and, where substantiated, prosecute and punish those responsible.

 

126.          With respect to these problems, the Commission has reiterated the need for the State to take concrete steps to promote and protect the rights of women, which includes the effective investigation and prosecution of complaints of sexual violence perpetrated against women and girls, as mandated by the Inter-American Convention on the Protection, Punishment, and Eradication of Violence Against Women, adopted by Haiti on June 2, 1997. In this respect, the Commission is encouraged by the government’s several initiatives to improve the rights of women in Haiti, including the submission of three draft laws for consideration by parliament, including one on domestic labor (restavek),[158] a second on cohabitation (ensuring legal rights equivalent to legal marriage status), and the third on paternity (ensuring that fathers assume responsibilities for their children). Other draft bills are contemplated for submission, such as a bill on violence against women that will address gender based violence in different spheres (including domestic, sexual, and criminal violence), as well as a bill to legalize abortion and one on gender equality.[159] The draft laws are part of a greater action plan by the Ministry of Gender, set for the years 2006 to 2011, which includes the promotion of women’s rights, increasing the public’s awareness of the problem of violence against women, the analysis of the disparities between men and women in various sectors, and poverty reduction.[160] With the support of the gender advisor at MINUSTAH and USAID, the ministry is making violence against women a priority issue to be tackled systematically. Accordingly, the ministry recently announced the creation of a unit mandated to support victims of rape and organized a forum for the adoption of measures favoring gender parity.[161]

 

127.          Children also appear to have been the victims of particularly egregious human rights violations in Haiti during 2006. While the Commission found in 2005 evidence of children subjected to child labor, organized trafficking, kidnappings, abuse, arbitrary arrest and detention by police forces and increased cases of victims of criminal violence perpetrated by armed groups, information received in 2006 indicated that the problems largely persisted and in some cases worsened under conditions of weak state institutional response and impunity. In statements by UNICEF, children are said to be emotionally and psychologically affected by these acts of abuse committed against family and relatives, and found that there is a serious problem of children abandoning their homes for social and economic reasons, and left to live in the streets with no protection.[162] Due to their lack of access to shelter, education, employment or proper health services, these children, estimated at 2,500 by the Ministry of Social Affairs, are highly susceptible to getting involved in criminal activity, and have reportedly been the targets of recruitment by the armed gangs to aid in the execution of kidnappings and other illegal activities.  In response to this phenomenon, UNICEF has denounced the practices of gang members who offer drugs to children and use them as human shields against police attacks or as accomplices for kidnappings and robberies.[163]

 

128.          Other forms of violations that have been documented and which constitute a serious cause for concern by the Commission is the increase in the cases of sexual violence against children and the trafficking of minors. The Report of the U.N. Secretary General on Children and Armed Conflict, emphasized the urgent situation of girls being the subject of systematic rape and sexual violence. The report found that up to 50% of girls living in conflict zones such as Cite Soleil are victims of rape or sexual violence while in areas such as Martissant and Carrefour, acts of gang rape have been reported.[164] The report further noted documented cases of abuse by the Haitian police, namely illegal detention and sexual violence of those in their custody. Although Haiti is not witnessing an internal armed conflict, as with other states, the nature, characteristics and impact of the urban violence between the armed gangs and authorities in Haiti may be similarly compared to the situations in other states and constitutes a serious cause for concern and action by the government.

 

129.          Further, the Commission previously noted and wishes to reiterate its concern for children being held in detention in conflict with the Haitian law on juvenile delinquency of 1961[165], and the fact that minors are frequently detained with adults in detention facilities where sufficient space to hold minors separately is lacking. Such practices are contrary to what Haitian law stipulates as well as international human rights standards on detention.[166]. According to Haitian law, children between the ages of 13 and 16, found to have committed a criminal offense, should be placed in the state-run center for education for a period of time rather than serve a criminal sentence in prison.[167] In its press statement issued at the conclusion of its visit in late 2005[168], the delegation stated that proper attention to the rights of Haitian children and adolescents cannot wait until Haiti’s complex political and social problems are resolved. In that connection, it is important that the relevant government authorities take immediate steps to address the problem of detention of minors, in particular because they constitute a vulnerable class of persons who are especially protected under Haitian law. In light of this, the Commission reiterates the necessity to make available resources to refurbish and reform the Centre d’accueil, the state-run center mandated to house and rehabilitate juvenile delinquents, or other requisite measures, to adequately address the problem of delinquency and prepare them for reintegration into their society.

 

130.          The Commission and UNICEF have found that the violence in Haiti has had a particularly severe impact upon street children in Port-au-Prince and girls who work as domestic servants across the country. Consequently, street children have been some of the primary targets for recruitment into gangs, and have been increasingly been victims of rape and kidnappings. The government, via the Minister of Social Affairs, has released statistics showing that there is a large population of children in need of immediate attention. Figures indicate approximately 2,500 street children (80% in Port-au-Prince); 173,000 in domesticity; 2,000 trafficked annually to the Dominican Republic, 122 children in detention, of which 23 were girls in Delmas/Petion-Ville prison; 300,000 AIDS orphans and 9,000 infected with HIV.[169] Despite these figures, state institutions have been weak to respond promptly and adequately to these issues, although the Commission is encouraged by a number of recent initiatives to raise awareness of these problems including receiving information about a recently proposed Children’s code for consideration at the Parliament. As the Commission has noted on previous occasions, children are among the most vulnerable members of our societies and are entitled to special protection from the State in order to effectively safeguard their rights. The Commission reiterates its concern for the seriously precarious situation of children in Haiti, notes the near absolute lack of protection afforded children and urges the State to take the measures necessary to give full effect to the right of children under Article 19 of the American Convention to the measures of protection required by their condition as minors on the part of their families, society and the state, as well as the rights and freedoms provided for under the Convention on the Rights of the Child, which Haiti ratified on July 8, 1995.

 

131.          The Commission has received multiple complaints relating to violence and threats made in retaliation against human rights defenders for their work, especially in areas of the country where state presence is lacking. In these areas, defenders are one of the only sources of information about human rights abuses being perpetrated on residents. The Commission places value on the important work of the defenders who, under difficult circumstances continue to promote and protect the rights of Haitians.  In this sense, the Commission reminds the state of its duty to ensure the necessary conditions to facilitate the work of defenders. Particularly, the Commission expresses its preoccupation for the failure to apply the request for precautionary measures in favor of defenders in Haiti since 2005. During 2005 and 2006, the Commission granted requests for precautionary measures on behalf of the members of CONOCS, an NGO working in Cite Soleil, once again the Commission granted measures on behalf of an investigating judge in Jeremie who suffered an attempt on his life in 2005 and finally in 2006, the Commission made a request to the government of Haiti to take measures to guarantee the life and physical integrity of Mr. Evel Fanfan and members of his group AUMOHD. To date, the Commission has not received information from the state indicating the measures taken to protect the life and integrity of the petitioners in these three cases, noting specifically that information regarding the investigation into these matters has yet to be communicated to the Commission.                          

 

Social, Economic and Cultural Rights Situation

 

132.          The foregoing concerns identified by the Commission must also be viewed in light of the fundamental societal problems such as extreme poverty, high illiteracy and malnutrition, which have for years deprived Haitians of fundamental economic, social and cultural rights and which have at the same time exacerbated the consequences resulting from denials of basic civil and political rights. On numerous occasions in the past, the Commission has recognized that this presents a formidable challenge to the Haitian State and urges it, in cooperation with all sectors of society and with the support of the international community, to design and implement a long-term plan for development that will address the fundamental economic and social needs of each Haitian citizen.

 

133.          Conditions in 2006 do not appear to have improved since last year, when the Commission found that the Haitian people were faced with severe social and economic problems, including poverty, lack of access to adequate health care, unemployment and illiteracy.  As noted in its previous annual report chapter on Haiti, the Commission notes that more than 80% of the population in Haiti live below the poverty line and more than two-thirds of the labor force do not have formal jobs. Further, only 53% of the total population is considered literate while 21 percent of children ages 6-9 do not go to school at all and only 15 percent of teachers meet the academic requirements to teach. Meanwhile, the health system in Haiti is in a desperate state, where hospitals are severely understaffed and ill-equipped and much of the population lacks adequate access to medical services. Most worrisome is the holding of labor strikes at the state hospital to protest the poor working conditions, imperiling the lives and health of the patients. Such desperate measures to draw attention to the need for assistance in the public health sector communicate the gravity of the situation and the need of the state and the international community to take immediate and long-term measures to improve the public health administration in Haiti.

 

134.          These deficiencies in turn have contributed to the problems relating to security, the administration of justice, and other failures in the guarantee of basic political and civil rights. While the situation of insecurity in Haiti has resulted from a variety of factors, it is also the case, as noted by the Prime Minister, that lasting security cannot be achieved without addressing underlying social and economic deficiencies such as poverty and unemployment. Therefore, these serious difficulties require urgent attention, to address the immediate threats to the lives and integrity of Haitians caused by the spread of disease and the lack of adequate medicine and health care, and to devise strategies for the longer-term development of Haiti’s health and education systems.

 

Concluding Observations

 

135.          During 2006, the Commission witnessed Haiti’s emergence from two years of a transitional government, marked by the presidential and legislative election held on February 7, 2006. Accordingly, the year was characterized by significant steps to restoring democracy to the country, while the critical human rights and security situation, as described in the annual report of 2004 and 2005, largely persisted and considerably worsened beyond previous years. In response to the perceived problems, the Commission witnessed the government’s proactive steps to tackle the security issue, institute judicial reform and engage the international community to secure much needed assistance in the areas of social and economic development and the building up of its infrastructure. While facing significant challenges to securing sustainable peace and development, the government illustrated political will to address the most critical deficiencies, nevertheless, the state is overwhelmed by the dimension of the security challenges, a severely weakened judiciary and does not posses sufficient capacity or resources to single handedly tackle the areas of security, justice and strengthening the rule of law without the critical support of the international community. With the support of the international community, and through technical assistance provided by MINUSTAH and others, the longstanding issues that have delayed Haiti’s progress in past years may begin to be in earnest addressed through the effective implementation of such plans and with the support of the population. The Commission however would like to emphasize its paramount concern for the security of the Haitian people and notes with extreme preoccupation, the immediate threat that the persisting violence presents to the lives and physical integrity of Haitians. In light of these considerations, the Commission once again urges the government to take the urgent measures necessary, consistent with international human rights principles and standards, to assert control over security in Haiti and calls upon the international community to strengthen its efforts to assist the government in this endeavor.

 

136.          In addition, the Commission applauds the commitment of support by members of the international community to engage in numerous social and economic development projects. Financial and related support should also be given to the efforts by the OAS, the UN and others to fully implement their mandates of support to the Haitian government in areas such as democratic governance, human rights protection, the administration of justice, and security.

 

137.          The Commission will continue to monitor the situation in Haiti and to offer its assistance to the government and people of Haiti in their efforts to reinforce democratic institutions and strengthen the rule of law during the coming year.

 

[TABLE OF CONTENTS | PREVIOUS | NEXT]

[TABLE OF CONTENTS  | PREVIOUS | NEXT]