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OEA/Ser.L/V/II.74
REPORT
ON THE SITUATION OF HUMAN RIGHTS
... continued
a)
The Case of Nicolas Estiverne (Case No. 9855)
160. One case
which was brought to the Commission's attention was that of a Haitian who had
assumed U.S. nationality and was expelled as an undesirable alien by the Haitian
authorities in January 1987. Mr.
Nicolas Estiverne, who intended to declare his candidacy for the presidency of
Haiti, was expelled following remarks critical of the CNG.
161. On March 24,
1988, the Commission adopted the following decision on this case and declared
that the Government of Haiti had violated Articles 13, 20, 22, 23 and 25 of the
American Convention on Human Rights. This
decision states the following: RESOLUTION
No. 20/88
CASE No. 9855 (HAITI) March
24, 1988
HAVING SEEN:
1. Mr.
Nicolas Estiverne, a candidate for the presidency of Haiti, was declared persona
non grata by the Haitian Government on Tuesday, January 13, 1987.
By letter dated January 14, 1987, he presented his case to the
Commission.
The facts of his complaint are as follows:
On or about May 13, 1987, I began a campaign for the presidency of Haiti
by making an open declaration of my plans to the press and the general public
with the techniques that I used such as radio commercials, TV commercials, radio
talk show appearances and travelling constantly around Haiti, I became a very
popular candidate and the people began to express their desires to see me win
the upcoming November elections. However,
throughout the campaign, questioned
strongly the present government's legality, its competence and its accounting
system.
As you are probably aware a new Constitution is being written and
discussed. Article 16 of the
proposed document states that: "any
Haitian who had become naturalized in any foreign country can regain his or her
civil and political rights if after moving permanently to Haiti, he or she makes
a personal declaration to the Minister of Justice within one year stating that
he or she desires to regain such rights". I
came to the United States in 1969 with my permanent visa.
After being drafted into the U.S. Army where I served honorably for 2
years, I became a United States citizen by naturalization.
You have to realize that at that time, Baby Doc was President-for-Life.
I then went to school and became an attorney with a fairly good law
practice in New Orleans, Louisiana. But
when Baby Doc left in February, I felt that it was time to pay my dues to Haiti.
Went back with the intent to renounce my U.S. citizenship and to regain
my Haitian citizenship.
2. The
order of expulsion was dated January 13, 1987 issued by the Ministry of
Information and Coordination, and published in the daily newspaper Le
Nouvelliste on January 14, 1987. It
expelled Nicolas Estiverne, "of U.S. nationality, because of his
undesirable conduct which was of such a nature as to compromise the social and
political order".
This was the first expulsion to take place following the departure of
Jean-Claude Duvalier, ex President-for-Life of Haiti.
It was announced on January 13, 1987 on the Haitian National Television
channel (Télevision Nationale) 24 hours after Mr. Estiverne had made certain
declarations against the C.N.G. also on television.
The Haitian press suggested that the two events had a cause and effect
relationship.
Reportedly, Mr. Nicolas Estiverne had declared on television and radio
that Gen. Namphy had a secret plan to take power.
Mr. Estiverne had stated that during Gen. Namphy's recent visit to the
United States he had had two meetings, the first, in Miami to which nine persons
were invited, and the second in Washington, to which 13 persons were invited.
And that the purpose of these meetings was to launch a plan by which Gen.
Namphy would step down from power towards May or June, and declare himself a
candidate for the presidency.
3. Bu
cable dated February 2, 1987 the Commission requested the Haitian Government to
present whatever information it deemed appropriate with regard to this case
pursuant to Article 34 of the Commission's regulations. 4.
By note dated February 17, 1987, Col. Herard Abraham, Minister of Foreign
Affairs, informed the Commission that its cable had been communicated to the
appropriate authorities and that a response would be forthcoming.
5. By
note dated March 9, 1987, Mr. Estiverne requested that the Commission impress
upon the Government of Haiti the necessity of an accelerated response given the
fact that the presidential elections had been set for November 29, 1987, and the
people who intend to vote for Mr. Estiverne would be left without a candidate.
6. By
note dated March 17, 1988, Col. Herard Abraham, the Minister of foreign Affairs,
transmitted to the Commission a letter No. DG-87 MJ/SCGE/35 dated March 5, 1987
from the Haitian Ministry of Justice, which set forth the reasons for Mr.
Estiverne's expulsion from Haiti. This
document addressed to Col. Abraham from Mr. François Saint-Fleur, the Haitian
Minister of Justice, states that Mr. Estiverne:
During his stay in the United States, he renounced his Haitian
citizenship. Upon his return to
Haiti, after February 7, 1987, he has not made any declaration renouncing his
foreign nationality while running for the presidency, without awaiting the
provisions to be established by the new Constitution which would set the
conditions pursuant to which foreigners of Haitian origin may take part in the
next presidential campaign.
Aside from this untimely and premature declaration of his candidacy, he
has assumed the right to make particularly defamatory public statements, on
television, regarding the current leaders of the country.
He has forgotten himself to the extent that he has made threats tending
to upset the public order.
Taking into account that he is a foreigner Mr. Nicolas Estiverne's
behavior can be considered as gross interference in Haitian affairs, indeed, an
attack on national sovereignty. Consequently,
the expulsion measure taken by the Government is completely legal since it is in
conformity with the powers of a Sovereign State.
7. The
pertinent parts of this response were communicated to Mr. Estiverne by phone and
subsequently, by letter, dated April 7, 1987.
8. By
letter dated June 24, 1987 Mr. Estiverne presented his observations to the
response of the Haitian Government as follows:
I had received your letters containing my complaints against the Haitian
government's violation of my rights.
Must inform you that the answer given by the Haitian government is
outrageous. Considering that Haiti
had just liberated itself from a dictatorship, it is obvious that the intent of
this new regime is not noble at all. The
same things that the Duvaliers killed people for are now reasons for expulsion
of Haitian citizens from Haiti. Freedom
of speech has never existed in Haiti and still does not exist.
The government complained about my statements against the present regime
as if my statements were not truthful.
At the time of my candidacy, there were no laws prohibiting anyone from
being a candidate and the government never sent me any warnings about any
violation of the laws of the country. The
only thing that took place is that I denounced a scheme that the President of
the Council of National Government had in order to usurp the power, and when the
plan was revealed by me, they got angry.
I strongly object to the government's contention that I renounced my
Haitian citizenship. My roots are
still in Haiti, I own property there and my parents are buried there.
How in the world could I renounce anything about my Haitian background?
I am a naturalized citizen of the United States and I am proud of it.
The only thing the Haitian military dictatorship has to say is that they
are trying to exclude from Haiti anyone who can be a real challenge to them; and
I fit that category.
I am, therefore, requesting from the Haitian government the right to
return home and to see my family and to make public the restitution of such
rights to me. Otherwise, once I am
in Haiti, an accident may happen to me, as it has been the case for many
citizens who have tried to challenge the government.
9. By
note dated July 30, 1987, the Commission transmitted the pertinent parts of Mr.
Estiverne's observations to the Government of Haiti, requesting that it submit
any further observations within the ensuing thirty days.
10. On
August 27, 1987, the Commission received an additional communication from Mr.
Estiverne. Mr. Estiverne
transmitted to the Commission the copy of a letter that he had sent, dated
August 20, 1987, to Mr. François Saint-Fleur, the Minister of Justice, pursuant
to Article 286 of the new Constitution of Haiti, whereby he requested the
Haitian Government to restore his nationality.
In that letter he indicated that since May 21, 1986 his address in Haiti
has been Ruelle Alerte No. 111 in Port-au-Prince, and he attached a copy of his
birth certificate to the letter, which documented that he had been born in Saint
Marc, Haiti on October 11, 1944.
11. By note
dated September 25, 1987 the Commission communicated this information to the
Government of Haiti.
12. By note
dated September 30, 1987 the acting Minister of Foreign Affairs, Col. Jacques
Joachim, transmitted the following text in response from the Minister of
Justice, without, however, including a copy of that note.
The text of this note, dated September 31, 1987, states:
The observations formulated by Mr. Nicolas Estiverne are without basis,
if it is true that Haiti has just freed itself of a dictatorship it cannot be
admitted that this dictatorship has been replaced by an anarchic system, where
chaos rules and where the lawless, in disdain of the law, incite citizens to
acts of violence, leading the country to disorder and to insecurity.
The expulsion Order of the National Governing Council which was taken on
January 13, 1987, against the U.S. citizen Nicolas Estiverne, was designed to
guarantee internal security, peace, order and respect for the laws.
13. This
response of the Haitian Government was communicated to Mr. Estiverne on November
4, 1987. CONSIDERING:
1. That
the Constitution of Haiti, approved by a national referendum on March 29, 1987
and, in force, provides in Article 286 the following:
Any Haitian, who has adopted a foreign nationality during the 29 years
preceding February 7, 1986 can, by a declaration made to the Ministry of
Justice, within a period of two years from the date of publication of the
Constitution, recover his Haitian nationality wit all the advantages deriving
therefrom, in conformity with the law.
2. That
Mr. Nicolas Estiverne, by letter dated August 20, 1987, to Mr. François St.
Fleur, the Minister of Justice, attempted to regain his Haitian nationality,
pursuant to the procedure set forth in the Constitution.
The Commission considers that, by carrying out this constitutionally
prescribed procedure, which has not been subject to any supplementary
regulations, Mr. Estiverne has exhausted his domestic remedies.
3. That
Mr. Nicolas Estiverne was not permitted to regain his nationality and that he
has been deprived of the possibility of regaining his nationality and
participating in the political life of his country for reasons invoked by the
Haitian Government which have never been subject to judicial review.
4. That
this case fulfills all the admissibility requirements set forth in the American
Convention on Human Rights, however, since Mr. Estiverne is not interested in a
friendly settlement in this case the procedure set forth in Article 48(f) of the
above-mentioned convention is not applicable.
5. That
this case involves the substantive right set forth in Article 20 of the American
Convention on Human Rights, in particular, paragraph 3 thereof, which provides
that "no one shall be arbitrarily deprived of his nationality or the right
to change it".
6. That
the facts of the case reveal that Mr. Estiverne had left Haiti for the United
States and became a United States citizen because he did not wish to live under
a dictatorship, and that the Duvalier dictatorship perpetuated itself in power
as François Duvalier's son, Jean-Claude, was designated to succeed the father
and was subsequently designated President-for-Life by the Haitian Constitution.
7. That
upon the departure of Jean-Claude Duvalier from Haiti on February 7, 1986, Mr.
Estiverne made plans to return to Haiti, with the intent of renouncing his U.S.
citizenship and of regaining his Haitian citizenship.
8. That
in spite of the fact that Article 286 of the Haitian Constitution sets forth a
simple procedure for the recuperation of Haitian nationality for persons of
Haitian origin who chanted their nationality during the Duvalier era, Mr.
Estiverne, who followed the requisites of this procedure, was not permitted to
recover his Haitian nationality.
9. That,
in addition, on January 13, 1987, an order of expulsion was issued against Mr.
Estiverne, because of his "U.S. nationality, because of his undesirable
conduct which was of such a nature as to compromise the social and political
order".
10. That
Article 22, paragraph 6, of the American Convention on Human Rights provides
that "An alien lawfully in the territory of a State Party to this
Convention may be expelled from it only pursuant to a decision reached in
accordance with law". The
facts reveal that Mr. Estiverne was not given a hearing, administrative or
judicial, in order to defend himself against the charges motivating the
expulsion by the Government.
11. That
the facts reveal further that the summary expulsion of Mr. Estiverne was
motivated by political considerations. Mr.
Estiverne alleges that his expulsion from Haiti was a measure taken to silence
his criticism of the alleged political ambitions of General Henri Namphy.
12. That
Article 13 of the American Convention protects the right of everyone to freedom
of thought and expression and that this right "includes the freedom to
seek, receive and impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing, in print, in the form of art, or through
any other medium of one's choice". The
Haitian Government, in its response dated March 5, 1987 from the Ministry of
Justice termed Mr. Estiverne's public statements "defamatory"
regarding the political leaders of Haiti at the time.
Any abuse of the right of freedom of expression, which may be considered
to threaten the national security or public order, is subject to vindication by
means of a suit pursuant to the libel or defamation laws of the domestic legal
system. Such a remedy was not
available to Mr. Estiverne.
13. That
Article 23 of the American Convention provides that every citizen shall have the
right "to vote and to be elected at genuine periodic elections".
That Mr. Nicolas Estiverne sought to recuperate his Haitian nationality,
and had returned to live in Haiti, in order to participate in the political life
of the country, and to run for the presidency of Haiti, an opportunity denied to
Haitians during the previous 29 years. The
Haitian Government, again in its response of March 5, 1987 from the Ministry of
Justice, stated that Mr. Estiverne: "Upon
his return from Haiti, after February 7, 1986, has not made any declaration
renouncing his foreign nationality while running for the Presidency, without
awaiting the provisions to be established by the new Constitution which would
set the conditions pursuant to which foreigners of Haitian origin may take part
in the next presidential campaign". By
expelling Mr. Estiverne, however, the Haitian Government preempted him from
recuperating his Haitian nationality, pursuant to the provisions of the new
Constitution which did not enter into force until after it was approved by the
national referendum on March 29, 1987.
14. That
Article 25 of the American Convention provides that:
1. Everyone
has the right to a simple and prompt recourse, or any other effective recourse,
before a competent court or tribunal for protection against acts that violate
one's fundamental rights recognized by the constitution or laws of the state
concerned or by this Convention, even though such violation may have been
committed by persons acting in the course of their official duties.
That
Mr. Nicolas Estiverne
was deprived of a "simple and prompt recourse" in Haiti to protect his
right to change his nationality and thereby recuperate his Haitian citizenship
(Article 20), the recuperation of which would have entitled him to participate
in the political life of Haiti and to run for the presidency, a right guaranteed
by Article 23 of the American convention.
Mr. Estiverne was also deprived of the procedural guarantee of a
"simple and prompt recourse" to challenge the order of expulsion
issued against him on January 13, 1987, which deprived him of the substantive
right to live in Haiti and the right not to be expelled therefrom unless
"pursuant to a decision reached in accordance with law" a right
guaranteed by Article 22, paragraph 6, of the American Convention.
Mr. Estiverne was deprived of his right to live in Haiti without the
minimal due process guarantees inherent in a judicial or administrative
procedure which would have afforded him the opportunity of having been informed
of the reasons motivating his expulsion, prior to the actual issuance of the
expulsion order, and of having had the opportunity to defend himself against the
charges presented against him.
And lastly, Mr. Estiverne's expulsion from Haiti, allegedly motivated by
his criticism of the current political figures in Haiti, if true, deprived him
of a procedural recourse to defend the truth of his statements in a libel or
defamation suit, and is tantamount to an illegitimate interference with his
substantive right to freedom of expression (Article 13 of the American
Convention). THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, RESOLVES:
1. To
declare that in the present case the Government of Haiti has violated Articles
25 (Right to Judicial Protection), 13 (Freedom of Thought and Expression), 20
(Right to Nationality), 22 (Freedom of Movement and Residence) and 23 (Right to
Participate in Government).
2. To
transmit this Resolution to the Government of Haiti and to the Petitioner and to
publish it in its Annual Report to the General Assembly of the OAS, in
accordance with Article 63(g) of its Regulations. b)
The Case of Mr. Daniel Narcisse
162. In October
1987, Mr. Daniel Narcisse, a declared candidate for position of mayor of
Port-au-Prince and the coordinator of the Liaison of Democratic Forces, was
expelled to Canada.
163. According to
Mr. Narcisse, an expulsion order was issued against him on July 31, 1987.
He went into hiding for a month during which time the expulsion order was
vigorously criticized and declared unconstitutional.
On September 8, 1987 he announced that he no longer needed to hide and
wished to take up a position as university lecturer.
On October 9, 1987, around 4:00 p.m., gunfire forced him to stop his car
at the corner of Delmas and Nazon. A
friend, with two small children got out of the car, and plainclothes police took
him, without a warrant, to Casernes Dessalines.
From there he was taken to Recherches Criminelles and released the next
day, October 10, 1987 at 5:00 p.m., and taken straight to the airport.
According to the authorities, he was forcibly expelled for engaging in
political affairs in Haiti while retaining Canadian citizenship. c)
The Case of Dr. Ernst Mirville
164. Dr. Ernst
Mirville, the former president of the CEP, was prohibited from leaving Haiti as
he sought to travel abroad for medical reasons.
He was subsequently allowed to travel. d)
The Case of Dr. Turneb Delpe
165. Dr. Turneb
Delpe, head of the Haitian Political Party, the National Democratic and
progressive Party (PNDP) a member of the Patriotic Unitarian Bloc (BIP) was
prevented from leaving Haiti on Wednesday, December 30, 1987.
He had planned a trip to the United States on Eastern Airlines when his
passport was seized by an immigration agent.
He was informed that he could go home, that they were keeping the
passport, and that he could pick it up at the police station. e)
The Cases of the Messrs. Jean Robert Sabalat and
Jean-Claude Roy
166. A meeting of
CARICOM heads of States met in Bridgetown, Barbados, on January 6, 1988 to
review the situation in Haiti prior to the elections scheduled for January 17,
1988.
167. Mr. Jean
Robert Sabalat, the former director of the Departmental Electoral Office of the
Department of the West, and Mr. Jean-Claude Roy, the former head of the CEP's
Data-Processing Department were prevented from leaving Haiti to attend this
meeting as observers, and their passports were seized at the Port-au-Prince
airport.
168. They were
eventually permitted to travel a day later, on Wednesday, January 6, 1988.
f)
The Case of Mr. Louis Dejoie II
169. On January
20, 1988 having returned from a trip to Europe and the United States, Mr. Louis
Dejoie II, the President of the national Agricultural and Industrial Party
(PAIN) was detained at the Port-au-Prince airport.
170. Mr. Dejoie
was released after having spent approximately 48 hours in detention in the
National Penitentiary. Shortly
after his release, soldiers in uniform used tear gas on a crowd estimated at
1,000 persons gathered in front of the prison.
Mr. Dejoie was released accompanied by his lawyer, Mr. Georges Léger. g.
The Case of President Leslie Manigat and Members
of his Government (Case No. 10.200)
171. As a
consequence of the coup d'etat which ousted President Manigat's
government from power, twenty-four persons were arrested the night of June 19,
1988, who were at Manigat's house at the time.
Included in this group was Mr. Roger Savain, the former Minister of
Information and Tourism, Mr. Lionel Desgranges, the former President's Chief of
Staff and Mr. Harry Carrenard, the former Minister of Labor and Social Security,
and other members of his party, the RNDP.
172. President
Manigat was not held at Fort Dimanche but was summarily deported to the
Dominican Republic. The others were
"well treated" they explained as they were gradually released within a
2 week period.39 Mr.
Lionel Desgranges reportedly declared on a radio-station in Miami that
"there are no political prisoners in Haiti".40 h.
The Case of lt. Gen. Henri Namphy
173. The most
recent expulsion is that of Lt. Gen. Henri Namphy who was placed on a plane to
the Dominican Republic following the successful coup within the coup of
September 17, 1988.
The rights to life, liberty and security of the person have historically
been at risk in Haiti. As a result
of the almost thirty years of Duvalier rule, approximately one million Haitians
have fled to live and work abroad. The
"boat people", the most desperate of these emigrants, have captured
the world's attention, because of the lengths to which they have gone to flee.
One measure of the human rights situation in Haiti is the response of the
"diaspora" to conditions at home and their interest in returning.
Since the departure of jean-Claude Duvalier, crimes such as the
assassination of the political leaders Mr. Louis Eugène Athis and Mr. Yves
Volel, or the disappearance of the MISYON ALFA teacher, Mr. Charlot Jacquelin,
or the slaying and mutilation of the human rights lawyer-activist Mr. Lafontant
Joseph, have never been credibly investigated.
The massacre of peasants in Jean Rabel and the death squad killings
connected with the elections of November 29, 1987, also have led to no arrests
or prosecutions.
During the Commission's august 1988 on-site visit the Minister of Justice
stated that he was making and effort to speed-up the legal process so that
persons are not held for long periods in prison before trial.
The Minister also said that the Government would be providing legal aid
in the form of qualified attorneys as distinct from trainees (which is the
present situation) for accused persons. But
it seems that legal aid is only provided for the trial stage.
There appears to be no legal aid for the stages leading up to trial.
On the basis of the information set forth in this chapter, the Commission
has come to the conclusion that the military government has effectively
decriminalized any crimes committed by the military, the police or the Macoute
forces. The criminal laws and
procedures are effectively rendered inapplicable, as is, de facto,
the 1987 constitution.
The key element in this analysis is the government's willingness and/or
ability to investigate and prosecute members of the police and military for
crimes. In light of the continuing
violence and state of insecurity, these perpetrators of violent crimes remain
immune from punishment, whereas opponents to the government are routinely
arrested, detained, tortured and in some cases killed, pursuant to the same
procedures employed during the Duvalier era and in flagrant violation of Haiti's
internal laws and international obligations.
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