Guy Malary v. Haiti, Case 11.335, Report No. 113/00, OEA/Ser.L/V/II.111 Doc. 20 rev. at 296 (2000).
December 4, 2000
1. On August 17,
1994, the Inter-American Commission on Human Rights (hereinafter "the
Commission" or "the IACHR") received a petition from The
Lawyers Committee on Human Rights (hereinafter "the petitioners"),
pertaining to the murder of Mr. Guy Malary, the Minister of Justice of Haiti.
According to the petition, Mr. Malary was ambushed and assassinated,
together with his two bodyguards and driver, in Port-au-Prince on October
14, 1993. The petitioners state
that the evidence suggests that the Haitian Military and Security Forces
are responsible for the attack, since it could only have been carried out
with the complicity of officers of the Security Forces.
2. The petitioners
allege that the State has not made a serious effort to investigate and prosecute
the perpetrators of the crime or to compensate the family of Mr. Malary.
Furthermore, they request that the petition be accepted because of
the unwarranted delay and the ineffectiveness of domestic legal remedies
3. The petition
indicates that the State of Haiti violated Article 1, obligation to respect
rights; Article 4, right to life; Article 8, right to a fair trial; and
Article 25, right to judicial protection of the American Convention on Human
Rights (hereinafter "the Convention"), to the detriment of Mr.
Guy Malary; since, in addition to failing to fulfill its duty to protect
the right to life, the State did not fulfill its obligations to provide
judicial protection when it failed to investigate and sanction the perpetrators
by means of the appropriate trial.
4. The State maintains
that domestic remedies are still pending, inasmuch as the file related to
the assassination of Mr. Malary is still in the investigation phase.
5. The Commission
made itself available to the parties to reach a friendly settlement and
held three hearings related to the case at which two agreements were reached,
which were to serve as a basis for beginning the negotiation process aimed
at achieving an agreement between the parties.
However, to date, no final agreement has been reached.
6. Following the
analysis of the events reported and the documentary evidence contained in
the file, the Inter-American Commission, meeting at the 108th
session October 2-20, 2000, decided to declare case Nº 11.335 admissible.
PROCESSING BY THE COMMISSION
On September 20, 1994, the Commission processed the case and sent
the pertinent parts of the petition to the State, granting it 90 days to
submit its comments.
8. On May 2, 1995,
the Commission made itself available to the parties to reach a friendly
settlement and set a period of 30 days to receive the appropriate responses.
By means of a note of June 5, 1995, the petitioners informed the
Commission that they were willing to hear the proposal of the Haitian State
regarding a friendly settlement. The
pertinent parts of the communication were transmitted to the State on July
9. The State submitted
its response on June 28, 1995, and did not make specific reference to a
friendly settlement. In its correspondence, it stated that the events that gave
rise to the petition had occurred under the de
facto regime and that the perpetrators of these acts were not vested
with the requisite authority that could lead to the liability of the Haitian
State from an international standpoint.
Consequently, these persons were individually accountable in both
the civil and criminal spheres. Furthermore,
it outlined the steps that were being taken by the constitutional Government
to shed light on the events that occurred during the de
facto Government and to encourage respect for human rights.
By means of a communication of August 28, 1995, the State reported
that the Haitian judicial authorities were continuing their investigation
in order to clarify matters surrounding the assassination of Guy Malary.
The State also indicated that the delay in the commencement of this
investigation was due to the fact that it was only when the constitutional
Government was restored in October 1994 that proceedings were started.
This information was forwarded to the petitioner on September 21,
On October 10, 1995, the Commission informed the State that it understood
the difficult situation that was being experienced by the country as a result
of the change of regime and the reestablishment of the constitutional Government,
that it appreciated the efforts that it was making to strengthen mechanisms
for the protection of human rights, and, for this reason, it deemed it appropriate
to give the State a reasonable time period to conduct the investigations
into the matter being processed by the Commission.
On May 15, 1996, the State reiterated its position that it could
not be held liable for the actions of the de
facto Government. The foregoing
communication was forwarded to the petitioner on August 7, 1996.
The Commission held a hearing on March 5, 1999.
During the hearing, the petitioners stated that due to a lack of
willingness or a lack of preparation, the State had failed to fulfill its
obligations under the Convention, given the fact that the investigation
was inadequate and the Office of the Public Prosecutor had not properly
prepared the case. The State
indicated that work was being done on the Malary case, that the investigation
was ongoing, and proceedings have been instituted against some of the persons
involved. The State indicated that it was also experiencing serious financial,
technical, and security-related problems with the investigation.
In the end, the Commission made itself available to the parties to
reach a friendly settlement.
The petitioners submitted a draft agreement to be concluded between
the parties on April 14, 1999. In
it, it proposed the commencement of negotiations aimed at reaching a friendly
settlement provided that the State furnish, within a specific time period,
detailed information related to the domestic processing of the case.
This draft agreement was sent to the State on April 19, 1999.
On May 4, 1999, the parties met with the Commission with a view to
reaching a friendly settlement. The
petitioners submitted a draft "Memorandum of Agreement," in which
they outlined the comments and requests to the Government of Haiti.
The State representative indicated that he disagreed with the petitioners'
request for information on the status of domestic proceedings, given the
fact that the investigation phase of a case is confidential under Haitian
law. At the end of the meeting, the parties agreed to prepare a joint petition
addressed to the Government of the United States requesting documents related
to the investigation. The State
of Haiti agreed to provide the Commission with an account of the actions
taken related to the investigation and the prosecution of the perpetrators.
The Commission indicated that it would transmit the pertinent information
to the petitioners.
On July 2, 1999, the petitioners asked the Commission to consider
the case at its next session, in light of the fact that the State had not
fulfilled its commitments. This
petition was forwarded to the State on July 13, 1999.
The petitioners repeated their request on July 30, 1999, which was
transmitted to the State on August 7, 1999.
On August 26, 1999, the parties met at the headquarters of the Commission
with a view to reaching a friendly settlement.
The result was that the State agreed to submit a report to the Inter-American
Commission on the investigation, domestic proceedings related thereto, and
status of the case every three months.
If four months went by without this action being taken, the period
of discussion for a friendly solution would be considered to have ended.
The agreement, written in French, was transmitted to the State on
August 27, 1999.
On November 1, 1999, the petitioners informed the Commission that
the State had made a few changes to the original agreement document, among
them, the modification of the time periods, and they indicated their acceptance
of these changes. The State
informed the Commission that it had agreed to sign the revised agreement
on November 19, 1999, and the petitioners were notified of this on November
29, 1999. On December 6, 1999,
the petitioners informed the State of the receipt of the signed agreement.
On January 20, 2000, the petitioners requested another hearing, which
was granted, to obtain information on the progress made in the Malary case.
Based on a request made by the State in a communication of February 18,
2000, the hearing was postponed. On
March 2, 2000, the petitioners sent the Commission an additional memorandum
seeking up-to-date information on the case and asked the State to respond
to a series of questions prior to July 3, 2000, failing which they would
ask the Commission to declare the case admissible.
This communication was sent to the State on March 16, 2000.
During the course of the on-site visit by the Inter-American Commission
to Haiti, the parties met with representatives of the Commission in Port-au-Prince
on August 23, 2000, in order to obtain information on the status of the
case. No final agreement was
POSITION OF THE PARTIES
Position of the petitioner
The petitioners assert that there is strong evidence linking officers
of the Haitian Security Forces to the assassination of Mr. Malary, a factor
that makes the State liable from an international standpoint. The fact that
the events occurred during the de
facto regime does not alter this liability.
The petitioners allege that the investigation into the assassination
and the institution of criminal proceedings against the suspects have been
impeded by the negligence and inaction of Haitian officials.
Although it is true that the events occurred during the de facto regime, no significant progress has been made since the restoration
of the constitutional Government in October 1994.
Three years after the assassination, arrest warrants were issued
for eleven persons, only three of whom were arrested and two of whom were
prosecuted. The other person
who was arrested was released, allegedly by mistake, and the State made
no effort to detain the other eight persons involved. The petitioners maintain that the State has failed to obtain
additional key evidence.
According to the petitioners, the trial of the two suspects was tainted
with serious irregularities since the jury was partial and the competent
authorities failed to remedy this; consequently, the State failed to fulfill
its obligation to ensure an impartial trial.
As a result of the lack of preparation of the Office of the Public
Prosecutor, the evidence submitted to the jury was scant and not submitted
in the proper manner, and the appeal was not filed in a timely manner and
was thus rejected.
24. The petitioners allege that the delay was unwarranted and that the domestic remedies were not effective or timely. In addition to the violation of Article 4 of the Convention in the context of the assassination of Mr. Malary, the pertinent investigation and trial were tainted by irregularities and errors that prevented compliance with the obligations of Haiti under Articles 1, 8, and 25 of the Convention. Consequently, the conduct of the Haitian State is tantamount to violation of the Convention. The petitioners indicate that because the judicial system is overburdened and financially strapped, remedies are ineffective and not enough to produce specific results, and that this system is tainted by a lack of independence and impartiality. However, the foregoing does not justify the negligence of the State in prosecuting those responsible for the murder of Mr. Malary.
Position of the State
The State maintains that it cannot be held liable for the human rights
violations of the de facto Government
that occurred between September 30, 1991 and October 14, 1994 and that the
perpetrators must be held personally accountable for their actions.
That fact notwithstanding, the State maintains that proceedings are
pending relating to the Malary case, and that it is working on the case.
The investigation was not instituted immediately by the de facto Government; however, after the restoration of the constitutional
Government, the Office of the Public Prosecutor instituted proceedings,
and at the moment the investigation is ongoing and arrest warrants are pending.
While it is true that there were delays, they resulted from technical,
financial, and security-related difficulties encountered by the State, and
the fact that many of the witnesses fear for their safety.
The State indicates that the proceedings are currently in the investigation
phase, and, for this reason, it is prohibited under Haitian law from divulging
information related thereto. However,
a public trial will be held, during which the State will ensure that past
mistakes are not repeated.
With respect to prosecution of the two persons involved, the State
maintains that the competent authorities acted appropriately and in accordance
with the obligations set forth in the American Convention for obtaining
an impartial trial. Although
it is true that there were some problems with the preparation of the indictment
by the Office of the Public Prosecutor, this is not a chronic problem faced
by the State, since it is interested in discovery of the truth and the sanctioning
of the perpetrators. The State
maintains that the appeal was filed in a timely manner; however, Haitian
law establishes that when a jury hands down a verdict, a court of cassation
cannot change it.
The Haitian State maintains that it wants to request and seek available
information that sheds light on the events, and it is doing so and will
continue to do so in order to conduct a proper investigation.
The State points out that it is emerging from a period of dictatorship;
consequently, it has to overcome many obstacles.
However, it is working on several fronts to respect human rights.
Examples of this include the judicial reform project, the creation
of a National Truth and Justice Commission, and the establishment of a criminal
investigation division within the Ministry of Justice to investigate crimes
and disappearances that occurred during the period of dictatorship.
ANALYSIS OF ADMISSIBILITY
Competence of the Commission
The Commission is competent to review this petition since it pertains
to actions that allegedly violate human rights protected under the American
Convention, namely, the obligation to respect rights (Article 1); the right
to life (Article 4); the right to a fair trial (Article 8); and the right
to judicial protection (Article 25), as provided for in Article 44 of the
Convention, to which Haiti has been a party since September 27, 1977.
The Commission will now analyze whether this petition meets the formal
requirements for admissibility set forth in Articles 46 and 47 of the American
Convention on Human Rights.
Exhaustion of domestic remedies
Article 46(1)(a) of the American Convention states:
by the Commission of a petition or communication lodged in accordance with
Articles 44 or 45 shall be subject to the following requirements:
that the remedies under domestic law have been pursued and exhausted
in accordance with generally recognized principles of international law.
The Commission has repeatedly pointed to the "assistive and
complementary" nature of the inter-American system for the protection
of human rights, as reflected in Article 46(1)(a) of the Convention, which
permits States to settle issues beforehand within their own legal framework
before becoming involved in international proceedings.
In this case, the petitioners assert that although they reported
the alleged human rights violations to the domestic legal authorities stipulated
in Haitian legislation, the remedies failed to produce any result.
The Haitian State disputed the allegations of the petitioners regarding
the exhaustion of domestic remedies.
The State alleges that investigation is ongoing; consequently, domestic
remedies have not been exhausted.
As has been stated repeatedly, the mere existence of domestic remedies
is not enough to require exhaustion thereof by a petitioner.
These remedies must be effective and adequate in terms of providing
protection to everyone. Consistent
with the foregoing, Article 46(2) of the Convention describes some situations
in which provisions are made for an exception to the requirement related
to the exhaustion of domestic remedies:
provisions of paragraphs 1.a and 1.b of this article shall not be applicable
a. the domestic legislation of the
state concerned does not afford due process of law for the protection of
the right or rights that have allegedly been violated;
b. the party alleging violation of
his rights has been denied access to the remedies under domestic law or
has been prevented from exhausting them; or
c. there has been unwarranted delay
in rendering a final judgment under the aforementioned remedies.
In this case, the petitioners submitted the petition to the Inter-American
Commission on August 17, 1994, that is, nine months after occurrence of
the events reported, during which time the State did not launch an investigation
into the assassination of Mr. Guy Malary.
After the restoration of the constitutional Government, the petitioners
waited for domestic remedies; however, to date, a full investigation into
the case, leading to the sanctioning of the perpetrators, is yet to be conducted.
The Commission notes, with respect to the exhaustion of domestic
remedies, that the investigation was launched in late 1994 following the
October 1993 events. As a result
of this investigation, eleven arrest warrants were issued in May 1996.
Of this number, only three persons were arrested: Robert Lecorps,
Jean-Ronique Antoine, and Marcel Morissaint.
The first two were tried and acquitted, and the third was released
without being prosecuted for the assassination of Mr. Malary.
The Commission notes that a period of seven years has elapsed from
the time the events occurred without the launching of a full investigation
that permits responsibility to be assigned to the guilty parties and punishment
imposed on them. For this reason,
it holds the view that that period exceeds reasonable limits.
After analyzing the information provided by the parties, the Commission
points to the unwarranted delay in reaching a decision on domestic remedies.
For this reason, in this case, the exception
to prior exhaustion of domestic remedies provided for in Article 46(2)(c)
of the American Convention is applicable.
In this regard, the Inter-American Court has pointed out:
certain exceptions to the rule of non-exhaustion of domestic remedies are
knvoked, such as the ineffectiveness of such remedies or the lack of due
process 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.
In the view of the Commission, in the case at hand, the existence
of effective domestic remedies such as due process is closely linked to
the merits of the case given the obligation of the State to provide those
remedies pursuant to Articles 8 and 25 of the American Convention.
In light of the foregoing, the issues related to the effectiveness
of domestic remedies will be analyzed in conjunction with the merits of
Based on the elements reviewed, the Commission holds the view that
this case has met the admissibility requirement related to the exhaustion
of domestic remedies set forth in Article 46(1)(a) of the American Convention.
Time period for submission of the petition to the IACHR
Article 46(1)(b) of the American Convention states that "the petition or communication must
be within a period of six months from the date on which the party alleging
violation of his rights was notified of the final judgment," if it
is to be admissible.
In this case, that time period is not applicable, in light of the
unwarranted delay in the decision regarding domestic remedies, based on
the exception provided for in Article 46(2)(c) of the Convention.
Article 38(2) of the IACHR Regulations indicate that the time period
shall be one that the Commission deems reasonable, from the date on which
the alleged violation of human rights occurred, depending on the circumstances
of each case.
This petition was submitted to the IACHR on August 17, 1994, nine
months after the events occurred.
To date, the State has failed to launch an investigation, despite
the fact that the murder is being investigated on its own initiative.
After the restoration of the constitutional Government, the Commission
decided, on October 10, 1995, to grant the State a reasonable time period
to conduct the appropriate investigations, in light of the fact that the
State was facing a difficult transition.
Similarly, the petitioners decided to wait for new developments that
would shed light on the case. However,
to date, no significant progress has been made that would permit the perpetrators
to be identified and sanctioned.
In light of the foregoing and in view of the fact that the State
has not raised any objection to the time period for submission of the petition,
the Commission holds the view that it meets the requirement of submission
within a reasonable time period, pursuant to the provisions of Article 38(2)
of the IACHR regulations.
Duplication of proceedings
Article 46(1)(c) of the Convention states that if a petition or communication
is to be admitted by the Commission, the subject thereof must not be pending
in another international proceeding.
Furthermore, Article 47(d) of the Convention stipulates that the
Commission shall declare inadmissible any petition or communication that
is a duplication of one previously studied by the Commission or by another
The allegations of the parties and documents contained in the case
file do not indicate that the petition is pending in another international
proceeding or is a duplication of a petition previously studied by the Commission
or by another international organization.
Consequently, the Commission holds the view that this case meets
the admissibility requirements contained in Articles 46(1)(c) and 47(d)
of the American Convention on Human Rights.
The Commission concludes, based on the information presented herein,
that the petition meets the admissibility requirements set forth in Articles
46 and 47 of the American Convention on Human Rights.
The Commission is therefore competent to hear Case Nº 11.335.
Based on the foregoing arguments of fact and of law, and without
prejudice to the merits of the case,
THE INTER-AMERICAN COMMISSION ON
Declare this case admissible with respect to the alleged violation
of Articles 4, 8, and 25 of the American Convention.
Notify the parties of this decision.
Continue with the analysis of the merits of this case.
Publish this decision and include it in its Annual Report to the
OAS General Assembly.
Approved by the Inter-American Commission on Human Rights on December 4, 2000. (Signed): Hélio Bicudo, Chairman; Claudio Grossman, First Vice Chairman; Juan Méndez, Second Vice Chairman; Commission members: Robert K. Goldman, Peter Laurie, and Julio Prado Vallejo.
Mr. Guy Malary was appointed Minister of Justice by President Jean Bertrand
Aristide while he was in exile in Washington, D.C.
See: Report on the Situation of Human Rights in Haiti, IACHR,
OEA/Ser.L/V/II.85, doc. 9 rev. 1994.
Inter-American Court of Human Rights, Preliminary Objections, Velásquez
Rodríguez case, Judgment of June 26, 1987, para. 91.