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OEA/Ser.L/V/II.77 rev.1 REPORT ON THE SITUATION OF HUMAN RIGHTS IN HAITI CHAPTER
III RIGHT
TO PERSONAL LIBERTY AND JUDICIAL GUARANTEES
176.
The Right to Personal Liberty is recognized in Article 7 of the American
Convention on Human Rights in the following terms: 1.
Every person has the right to personal liberty and security. 2.
No one shall be deprived of his physical liberty except for the reasons
and under the conditions established beforehand by the constitution of the State
Party concerned or by a law established pursuant thereto. 3.
No one shall be subject to arbitrary arrest or imprisonment. 4.
Anyone who is detained shall be informed of the reasons for his detention
and shall be promptly notified of the charge or charges against him. 5.
Any person detained shall be brought promptly before a judge or other
officer authorized by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to be released without prejudice to the
continuation of the proceedings. His
release may be subject to guarantees to assure his appearance for trial. 6. Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished. The interested party or another person in his behalf is entitled to seek these remedies. 7.
No one shall be detained for debt. This
principle shall not limit the orders of a competent judicial authority issued
for nonfulfillment of duties of support.
177.
The Right to Judicial Guarantees is contained in Article 8 of the
above-cited Convention, which stipulates the following: 1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature. 2.
Every person accused of a criminal offense has the right to be presumed
innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full
equality, to the following minimum guarantees: a.
the right of the accused to be assisted without charge by a translator or
interpreter, if he does not understand or does not speak the language of the
tribunal or court; b.
prior notification in detail to the accused of the charges against him; c.
adequate time and means for the preparation of his defense; d.
the right of the accused to defend himself personally or to be assisted
by legal counsel of his own choosing, and to communicate freely and privately
with his counsel; e.
the inalienable right to be assisted by counsel provided by the state,
paid or not as the domestic law provides, if the accused does not defend himself
personally or engage his own counsel within the time period established by law; f.
the right of the defense to examine witnesses present in the court and to
obtain the appearance, as witnesses, of experts or other persons who may throw
light on the facts; g.
the right not to be compelled to be a witness against himself or to plead
guilty; and h.
the right to appeal the judgment to a higher court. 3. A confession of guilt by the accused shall be valid only if it is made without coercion of any kind. 4.
An accused person acquitted by a nonappealable judgment shall not be
subjected to a new trial for the same cause. 5.
Criminal proceedings shall be public, except insofar as may be necessary
to protect the interests of justice.
The Haitian Constitution of 1987 sets forth in Articles 24, 25, 26, 27
and 27-1, the legal guarantees of the individual in Haiti as regards the
right to individual liberty. These
articles read as follows: Article
24:
Individual liberty is guaranteed and protected by the State. Article
24-1:
No one may be prosecuted, arrested or detained except in the cases
determined by law and in the manner it prescribes. Article
24-2:
Except where the perpetrator of a crime is caught in the act, no one may
be arrested or detained other than by written order of a legally competent
official. Article
24-3:
For such an order to be carried out, the following requirements must be
met: a.
It must formally state the reason in Creole and in French for the arrest
or detention and the provision of the law that provides for punishment of the
act charged; b.
Legal notice must be given and a copy of the order must be left with the
accused at the time of its execution; c.
The accused must be notified of his right to be assisted by counsel at
all phases of the investigation of the case up to the final judgment; d.
Except where the perpetrator of a crime is caught in the act, no arrest
by warrant and no search may take place between six (6) p.m. and six (6) a.m. e.
Responsibility for an offense is personal, and no one may be arrested in
the place of another. Article
25-1:
No one may be interrogated without his attorney or a witness of his
choice being present. Article
26:
No one may be kept under arrest more than forty-eight (48) hours
unless he has appeared before a judge asked to rule on the legality of the
arrest and the judge has confirmed the arrest by a well-founded decision. Article
26-1:
In the case of a petty violation, the accused shall be referred to a
justice of the peace, who shall then hand down a final decision.
In the case of more serious offenses or crimes, an appeal may be filed,
without prior permission, simply by addressing a petition to the presiding judge
of the competent civil court, who, on the basis of the oral statement of the
prosecutor, shall rule on the legality of the arrest and detention, in a special
session of the court, without postponement or rotation of judges, all other
cases being suspended. Article
26-2:
If the arrest is judged to be illegal, the judge shall order the
immediate release of the arrested person and that order shall be enforceable
immediately, regardless of any appeal to a higher court or the Supreme Court for
an order forbidding enforcement of the judgment. Article
27:
Any violation of the provisions on individual liberty are arbitrary acts.
Injured parties may, without prior authorization, appeal to the competent
courts, to bring suit against the authors and perpetrators of these arbitrary
acts, regardless of their rank or the body to which they belong. Article
27-1:
Government officials and employees are directly liable under civil and
administrative criminal law for acts carried out in violation of rights.
In such cases, civil liability extends to the State as well.
179.
The legal system of Haiti establishes certain official positions which
are intended to serve the State in connection with the prosecution of criminals
and the safeguarding of individual rights:
the Commissaire du Gouvernement (Public Prosecutor) and the Juge
d'Instruction (Examining Judge).
2.
Situation during the Avril Government
180.
According to information received by the Commission, the right to
personal liberty and to judicial guarantees was seriously compromised in Haiti
beginning in September, 1989. The
early months of the period covered by this report witnessed a steady
intensification of "insecurity", as evidenced in arbitrary detentions,
many of them effected by "chiefs of section" and their deputies.
For its part, the judicial system has demonstrated neither effectiveness
nor decisiveness in pursuing investigations of such violations.
181.
Beginning in November, arbitrary detentions became more selective, and in
most cases targeted popular leaders who demonstrated their opposition to the
Government, and thus a systematic campaign of intimidation of the populace was
established.
182.
Finally, the arbitrary detentions that took place under the Decree of
State of Siege declared by General Prosper Avril on January 20, 1990, were
frequently followed by expulsion from the country of detainees, although they
were charged with no crime and there was no sign that due process had been
observed. Authorities sought to
justify arbitrary detentions and expulsions as a measure to "neutralize
terrorists" who had created a "climate of tension" and
"poisoned the atmosphere."
183.
Several examples are given below of illegal arbitrary detentions that
were carried out without a proper warrant for arrest or search of private homes.
These arrests were frequently effected violently, violating the right to
physical integrity, and the reader will therefore note that some of the victims
have been named in the preceding chapter. In
some of these cases, the victims were released a few days later, without being
charged, and in other cases it is not known with certainty whether these
individuals remain in prison.
184.
On September 4, 1989 in Terre-Nette, VI Section Communal de
Verrettes, Mr. Jeannot Alexandre was detained by Milord Joseph, Chief of
Section, who accused him of being a communist.
185.
On the same day in Montrouis, at 10:00 a.m., the Chief of Section
Difficile St. Georges illegally detained Emilia Fleuvant, who had organized a
prayer meeting, and he beat those in attendance, claiming that all meetings were
prohibited.
186.
On September 6, in Pétite Rivière de l'Artibonite, Mr. Bernard Fleuvant
was arbitrarily detained and beaten by Dieubon, commanding officer of the
military garrison of that city.
187.
Daubermane Dorvilus and Souvenir Joseph were detained arbitrarily by
Chief of Section Pierre Hyppolite on September 7 in Grand Bois, in Marchard-Dessalines,
accused of being agitators. 188.
On the same day at approximately 2:00 p.m. Pierre Daniel Edmé was
detained in Port-au-Prince without an arrest warrant by two men
dressed in olive green uniforms.
189.
On September 11, Edouard Joseph was arbitrarily detained and beaten by
Chief of Section Gerard Lubin and his deputy in Belle Fontaine, Section
Communale de Kenscoff. Mr. Edouard Joseph is being held in the military garrison of
that city.
190.
Hervé Durand and Charles Romain, members of the Neighborhood Council
Federation (FEDKA) were arbitrarily detained by the police of Pétion-Ville
in Port-au-Prince on September 16.
191.
On the same day, in Delmas 33, at approximately midnight, Lhérisson Dor
was detained by military officers and his house was searched.
It is believed that Dor was first taken to the National Palace and later
to the Anti-Gang Investigations Center, before being transferred to the
National Pententiary. However,
relatives of Lhérisson visited all of the detention centers without locating
the victim. According to
information provided by his brother Salomón Justin, Lhérisson was charged with
planning the assassination of Sergeant Joseph Heubreux, a trusted ally of
General Avril.
192.
Also on September 16, in St. Michel de l'Attalave at 4:00 a.m., two
deputies of the Section Communale (district division) illegally detained Mr. Val
Cesar, and charged him without being out too early.
They took him to the military barracks, where a soldier wounded him by
gunshot and another cut off his left arm. The
victim was hospitalized.
193.
On September 20 in Champagne, in the area of Borgne, deputies of the
Section Communale, following orders of the Chief of Section, Liverdieu Andrési,
illegally detained Noisens Petit Négre for holding a meeting of the town's
Popular Assembly (APL). Noisens
Petit Nègre was released after paying the equivalent of fifty dollars.
194.
Jean Laforêt was illegally detained on September 22 by two military
officers for having said that the National Palace was protecting "macoutes".
Laforêt was taken to the prison in Port-au-Prince.
195.
On September 26 in Petit-Goâve, at approximately 11:45 p.m., Guito
Geauvy was detained and wounded by gunshot by soldier Raymond Fénelon.
The victim was accused of instigating the general strike called for
September 27.
196.
Max Bourjolly, a member of the United Party of Haitian Communists (PUCH)
and his bodyguard were detained on September 20, accused of illegal possession
of weapons. The accusation was
apparently based on a decree dated March 23, which had not been published.
Mr. Bourjolly was released two days later.
197.
On October 18, Arsène Moyse was illegally detained by soldiers of the
city's garrison during a public demonstration in Gonaïves.
Arsène Moyse is a militant of the group known as Tambour Vérite
Jeunes Gonaïves.
198.
On the same day in Pétit Goâve, Savary Zanny was arbitrarily detained
during a public demonstration, accused of being an agitator.
199.
On October 22, Jean "Madichon" was arbitrarily detained by the
police in Cayes; the reasons for his detention remain unknown.
200.
On October 25, in Savannette, a region on Haiti's western border, a
delegation of the League of Former Haitian Prisoners (LAPPH), comprised of
Marc-Elie Blanc and Daniel André, attorneys, and Jacquese Juste, their
driver, were arbitrarily detained and taken to the military garrison.
This delegation had travelled to Savannette to investigate military
persecution in that region against certain citizens who had been forced into
hiding. The two attorneys and the
driver were released the next day, following protests by the National Coalition
of Haitian Refugees and America Watch.
201.
During the month of November, the Government of President Prosper Avril
was noted for its arrests of popular leaders associated with the political
opposition, which had for some time refused to participate in the elections
organized by the Avril Government.
Evans
Paul, Jean Auguste Mesyeux and Etienne Marineau (the
Detainees of La Toussaint)
202.
On November 14, the Inter-American Commission on Human Rights
received a denunciation regarding the detention of Messrs Jean Auguste Mesyeux,
member of the Autonomous Federation of Haitian Workers (CATH), Evans Paul,
member of the Committee for Unity and Democracy (KID), and Etienne Marineau,
deputy leader of the People's Organization of September 17, a radical group of
the former Presidential Guard.
203.
According to information received, the Ministry of Information published
a communique on November 2, reporting on the arrest of these three individuals,
accused of conspiring to assassinate President Prosper Avril and the Military
High Command. They were detained in
a private home by members of the Presidential Guard on November 1, 1989.
The communique from the Ministry of Information is transcribed below: The Office of the Director of Information of the Ministry of Information and Coordination, following the communique received from the headquarters of the Police of Port-au-Prince, is able to report on the events of Wednesday, November 1, l989, at 5:45 p.m., in Oleon Street, in connection with the arrest of Evans Paul, Etienne Marineau, Jean Auguste Mesyeux. Found in their possession were three M-14 rifles, three Uzi machine guns, a disassembled Galil rifle, a package of 9 mm. cartridges, and dynamite. The
purposes of the group were to initiate terrorist activities in an attempt on the
life of the President of the Military Government, to physically eliminate all
officers of the Armed Forces of Haiti, to physically eliminate certain civilian
figures, and to impose a people's militia. Patrick Beauchard, Germain Sonthonax, Saintil Villex, Joseph Klébert, Philémon René, Oupette Casner, Altidor Jean Allipson, Getry Figaro and Thimotee Jean Franck, who are likewise implicated in this affair, are being actively sought by the police.
204.
On the day before the arrest of Evans, Mesyeux and Marineau, the Rassemblement
Nationale, a confederation of political and trade union organizations, had
announced its plans to hold a month of peaceful protests in opposition to the
Avril regime, culminating with a mass demonstration on November 29, anniversary
of the failed elections of 1987.
205.
On November 2, the arrested leaders were shown on State Television,
bearing obvious signs of torture. In
addition, the authorities showed weapons, ammunition and dynamite, allegedly
found in their automobile. According
to Commander Léopold Clerjeune, head of the Anti-Gang Brigade, Etienne
Marineau and Patrick Beauchard had offered a guard $7,000.00 to place dynamite
in the Palace of Government. The
detainees were held incommunicado for eight days, despite the fact that the
Constitution of 1987 provides that individuals arrested be brought before a
magistrate within 48 hours. The
Government refused for two weeks to allow independent doctors to examine the
detainees and on November 13 the three prisoners began a hunger strike in
protest.
206.
The Commission requested that the Government of Haiti take the necessary
measures to transfer Messrs. Mesyeux, Paul and Marineau to a hospital for
humanitarian reasons, given their precarious health condition.
207.
The Government of Haiti responded to the Commission's request for
information on November 17, stating the following: Doctors of the Haitian Red Cross visited the three defendants on Friday, November 10, and recommended that they be given proper beds and wool blankets. Unfortunately, the defendants chose not to use the beds placed at their disposal, and instead spread the blankets on the ground. Moreover,
they received tetanus shots and had access to X-ray examinations.
The three defendants are regularly visited by the doctor of the National
Penitentiary Center. In
the specific case of Marino Etinne,[1]
he was today taken to the Military Hospital today, where he refused the
proffered treatment. He requested
the presence of his private physician, but the latter could not be located.
The Government intends to request the Haitian Medical Association to
undertake to provide the services of one of its members to Marino Etienne,
should he accept this offer. Although only Marino Etienne appears to require hospitalization, the Government of Haiti, in response to the request of the Inter-American Commission on Human Rights, has decided to allow the hospitalization of the three detainees, until a government physician, in agreement with the private physician of each detainee, finds that his hospitalization is no longer necessary.
208.
The prisoners requested attention by their private physicians and after
two doctors assigned by the Haitian Medical Association visited the prisoners on
November 19 and 23, the Armed Foreces of Haiti published a press communique
accusing them of attempting to assassinate Etienne by administering improper
medication. Finally, on December 1,
authorities transferred the three defendants to the National Penitentiary
Center. The three detainees
suspended their hunger strike on December 11.
209.
The Haitian League of Human Rights pointed to the irregularities that
took place in connection with the detention of Mesyeux, Paul and Marineau, and
in the judicial proceedings. The
arrest was carried out in a private home, after 6:00 p.m., without a court order
and without information regarding the in flagrante delicto detention.
The defendants were subjected to severe torture and were not immediately
allowed the care of their private physicians.
The right to defense was not duly exercised, as they were not allowed to
communicate freely with their attorneys, who were formally prohibited from
visiting their clients later in the military hospital.
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