Jean Claude Pierre and Otros v. Haiti, Case 11.378, Report No. 8/00, OEA/Ser.L/V/II.106 Doc. 3 rev. at 901 (1999).
JEAN-CLAUDE PIERRE, ULRICK PIERRE AND JERSEYLA ADRIEN JUSTE
February 24, 2000
On May 18, 1994, during an on-site
visit to the Republic of Haiti (hereinafter “Haiti”, the “Haitian State,”
or the “State”) to observe the human rights situation in that country1/,
the Inter-American Commission on Human Rights (hereinafter “the Commission”
or "the IACHR”) received a petition submitted by a young man named Ulrick
Pierre hereinafter (the “petitioner”).
In his petition Mr. Pierre claimed that his family had been attacked
on May 12, 1994, by agents of the State security forces, and that those agents
caused the death of Jean-Claude Pierre, Ulrick’s adoptive father, inflicted
bullet wounds on Ulrick himself, and threatened his sister, Jerseyla Adrien
The complaint alleges that the State of Haiti violated the rights to
life and to humane treatment set forth in, respectively, Articles 4 and 5
of the American Convention on Human Rights (hereinafter "the American
Convention” or "the Convention”), to which the State of Haiti has been
a party since September 27, 1977. The petitioner further argues that, in addition
to the duty of the State of Haiti to protect the right to life and to humane
treatment of its nationals, there is the obligation under Articles 8 and 25
of the American Convention to ensure judicial protection when those rights
have been violated.
The petitioner reported these events to the pertinent authorities on
May 12, 1994. To date, the Commission
has no knowledge of any investigation having been carried out by the State.
For its part, the Haitian State did not dispute the facts that prompted
the complaint. The State maintains that in no circumstances could it be responsible
for the human rights violations committed by the successive de
facto governments that were in power between September 30, 1991 and October
14, 1994, and that the perpetrators, who had no capacity to obligate the State,
should answer personally for their actions.
Having analyzed the acts denounced and the testimony of witnesses and
documentary evidence contained in the record, in light of the time that has
elapsed since the date on which those acts were committed, the Commission
concludes that the Haitian State is responsible for violating the rights to
life, physical integrity, fair trial, and judicial protection contained in
Articles 4, 5, 8, and 25 of the American Convention, for which reason the
State must adopt the necessary measures to provide redress for the damages
caused to the victims, under its general obligation, contemplated in Article
1(1) of the Convention, to respect and guarantee those rights.
Given the established violations, the IACHR recommends that the State
conduct a serious, impartial, and exhaustive inquiry to determine the criminal
liability of those responsible for the murder of Jean-Claude Pierre and the
attack on Ulrick Pierre; that it determine if there were other crimes that
prevented an investigation into the events referred to; and that, where appropriate,
it apply the respective legal sanctions. Finally, the Commission recommends that the Haitian State pay
adequate compensation to Jean-Claude Pierre’s relatives on account of these
PROCESSING BEFORE THE COMMISSION
During the on-site visit, the OAS/UN International Civilian Mission in Haiti
informed the Commission
of the murder of Jean-Claude Pierre and the delicate condition of Ulrick Pierre,
who was in the hospital as a result of bullet wounds to his ear and neck.
On May 18, 1994, the Commission, accompanied by MICIVIH observers,
went to Diquini Hospital in Port-au-Prince, where it took a statement from
Ulrick Pierre. The Commission
was able to verify the wounds that had been inflicted on Ulrick Pierre.
On August 31, 1994, the Commission opened Case Nº 11.378 on behalf
of Jean-Claude Pierre, Ulrick Pierre, and Jerseyla Adrien Juste, and relayed
the pertinent portions of the complaint to the Government of Haiti, granting
it a period of 90 days in which to reply, in accordance with Article 34, clause
5, of the Regulations of the IACHR.
On January 12, 1995, the Commission again requested information from
the State of Haiti relating to Case 11.378, granting it a period of 30 days
As part of the processing of the case, by note of May 18, 1995, the
Commission offered its good offices for a friendly settlement procedure, pursuant
to Article 45 of the Regulations of the IACHR.
On May 23, 1995, the Commission reiterated its request to the State
of Haiti for information on the case and at the same time placed itself at
its disposal with a view to reaching a friendly settlement of the matter.
The Government of Haiti replied by note of June 28, 1995 and stated
that the letters that the IACHR had sent referred to acts that occurred during
the period of the coup d’état and
that "the perpetrators of those acts had no power invested in them that
was binding upon the Haitian State, that is to say, the constitutional government.
Accordingly, they would have to answer personally for all their actions, on
both civil and criminal counts."
The Government also mentioned some of the measures adopted by the State
that were intended to strengthen the mechanisms for protecting human rights,
like judicial reform, and a legal aid fund created in March 1995.
On July 15, 1995, the petitioner again wrote to the Commission and
reiterated the facts of the complaint.
He also stated that on July 6, 1994, he and his sister had been granted
asylum in France, and that the person in charge of their affairs was Mr. Juste
In a letter dated October 10, 1995, the Commission wrote to the Haitian
Government in reference to its note of June 28, stating the following:
Commission would remind the Government of Haiti that, as a state party to
the American Convention on Human Rights, it is duty-bound to undertake investigations,
impose penalties, and, if necessary, provide compensation to the victims of
the alleged violations. The Commission is not oblivious to the difficult situation
in the country and is conscious of the efforts that the constitutional Government
is making to strengthen the mechanisms for protecting human rights.
It is for that reason that the Commission grants it a reasonable time
in order to enable it to carry out the investigations relating to the cases
that the Commission is processing.
By note of May 15, 1996, the Government of Haiti reiterated its position
that the acts committed by the de facto
government between September 30, 1991 and October 14, 1994 were not binding
upon the State. The Government
also pointed out that the report prepared by the National Commission of Truth
and Justice (hereinafter CNVJ) had been presented to the Government, and that
the Government was considering measures to implement the recommendations contained
in the CNVJ’s report. Similarly,
the Government referred to the establishment of a Criminology Brigade under
the Ministry of Justice to investigate all the crimes committed and cases
of missing persons reported in the country since September 30, 1991.
On February 2, 1999, the Commission requested updated information from
the Haitian State on the situation of Case Nº 11.378 relating to Jean-Claude
Pierre, Ulrick Pierre and Jerseyla Adrien Juste, granting it a period of 30
days to reply. At the time that the Commission considered the instant report,
the above mentioned deadline had expired without a reply forthcoming from
the Haitian State on the information requested.
POSITIONS OF THE PARTIES
Position of the petitioner
The petitioner alleges that the attack on the Pierre family on May
12, 1994, which resulted in the death of his father, Mr. Jean-Claude Pierre,
the wounds sustained by Ulrick himself in the course of his attempted murder,
and the threats made to his younger sister, Jerseyla Adrien Juste, was perpetrated
by agents of the armed forces, who accused them of being lavalasiens.3
A complaint denouncing the acts was filed with the Justice of the Peace
of Croix des Missions, Jean Alex Civil, and with Corporal Blauture Joissaint
of the Cité Soleil Police Station (Avant Post) situated on the quay.
To date, the Commission is not aware that any investigation has been
carried out. In view of the danger
to their lives, Ulrick and Jerseyla obtained political asylum in France.
The petitioner alleges that, in addition to the duty of the State of
Haiti to protect the right to life and the physical integrity of its nationals,
the State is obliged to ensure legal protection when those rights have been
violated, pursuant to Articles 4, 5, 8, and 25 of the American Convention
on Human Rights.
Position of the Haitian State
During the processing of the instant case the State did not dispute
the facts that prompted the complaint, which refer to the violations of the
right to life and to physical integrity of Jean Claude Pierre, Ulrick Pierre,
and Jerseyla Adrien Juste. The Haitian State maintains that under no circumstances could
it be responsible for the human rights violations committed by the successive
de facto governments in power between
September 30, 1991 and October 14, 1994.
The State avers that the perpetrators, who did not have any power to
bind the State, should answer personally for their actions.
The State did not dispute the events denounced with respect to the
failure to investigate and provide judicial guarantees.
The State merely informed the Commission that a legal aid fund had
been set up in March 1995. The
State mentioned that the judiciary had not taken up ex
officio all the cases of human rights violations recorded in the country
during the three years of terror and complete lack of lawfulness.
However, a National Commission of Truth and Justice had been established
with a mandate to clarify all the crimes committed during that period.
By the same token, the Haitian State limited itself to reporting the
establishment of a Criminology Brigade under the Ministry of Justice to investigate
crimes committed since September 30, 1991.
At no point, however, did the State address the failure to investigate
the case in question. Furthermore, in spite of the fact that the State undertook
on May 15, 1996 to inform the Commission of all the arrangements made by the
government to find and punish the guilty parties in accordance with the law,
to date, it has not done so.
Competence of the Commission
The Commission is competent to take up the instant case, as it concerns
claims involving rights recognized in the American Convention, as provided
for in Article 44 of that Convention, to which the State of Haiti has been
a party since September 27, 1977. These rights include Article 1(1), regarding
the obligation to respect rights; Article 4, right to life; Article 5, right
to physical integrity; Article 8, right to a fair trial; and Article 25, right
to judicial protection.
The petition satisfies the formal requirements of admissibility contemplated
in Article 46(1) of the American Convention and in Articles 32, 37, 38, and
39 of the Commission’s Regulations. Indeed, the petition refers to facts that
tend to establish a violation of the rights guaranteed by the Convention.
25. The Commission finds that the case of Jean
Claude Pierre, Ulrick Pierre, and Jerseyla Adrien Juste is not pending in
another international proceeding for settlement, in view of the fact that
this exception has not been alleged by the parties, nor is the subject of
the said petition substantially the same as one previously studied by the
Commission or by another international organization (Article 47(d) of the
Exhaustion of domestic remedies
As to exhaustion of domestic remedies, the petitioner alleges that
the facts were denounced by MICIVIH observers before the Justice of the Peace
of Croix des Missions, Jean Alex Civil, and before Corporal Blauture Joissaint
of the Cité Soleil Police Station, on May 12, 1994.
The State of Haiti did not dispute expressis
verbis the facts alleged by the petitioner with respect to exhaustion
of domestic remedies. In the
instant case, the Government failed to file within the prescribed time periods
an objection asserting non-exhaustion of domestic remedies.
Only after lengthy delays did the State reply to the Commission’s requests
for information, including those relating to domestic remedies. Moreover,
the information that the State did supply did not answer the questions put
by the Commission. The foregoing
constitutes a tacit waiver by the State of any objection to admissibility
based upon non-exhaustion of domestic remedies.4
The Commission finds that since May 12, 1994, the day the events denounced
occurred, an unreasonable amount of time has elapsed without an investigation
being carried out, as provided by the exception to prior exhaustion of domestic
remedies under Article 46, clause 2, paragraph c, of the Convention and Article
37, clause 2, paragraph c, of the Regulations of the IACHR.
For his part, the petitioner has stated that he denounced the human
rights violations before the authorities under the domestic jurisdiction provided
by the law of the State of Haiti. However,
the recourse to domestic remedies in the case of the Pierre family was fruitless.
In this regard, the Inter-American Court of Human Rights has stated
...when certain exceptions
to the rule of non-exhaustion of domestic remedies are invoked, such as the
ineffectiveness of such remedies or the lack of due process of law, not only
is it contended that the victim is under no obligation to pursue such remedies,
but, indirectly, the State in question is also charged with a new violation
of the obligations assumed under the Convention. Thus, the question of domestic
remedies is closely tied to the merits of the case.5
The Commission further finds that the six-month period contemplated
in Article 38(1) of the Regulations of the IACHR (ratione
temporis) for lodging a petition with the Commission, following the date
on which the party alleging violation of his rights has been notified of the
final ruling (res judicata), does
not apply since the case qualifies for the exception provided in Article 38(2)
of the Regulations. Article 38(2) provides that the deadline for lodging a
petition shall be within a reasonable period of time, in the Commission's
judgment, as from the date on which the alleged violation of rights has occurred,
considering the circumstances of each specific case.
In light of the foregoing considerations, the Commission concludes
that the instant petition satisfies the requirements of admissibility stipulated
in the American Convention and in the Commission Regulations.
Pursuant to the provisions of Article 48, clause 1, paragraph f of
the Convention and of Article 45 of its Regulations, the Commission placed
itself at the disposal of the parties with a view to reaching a friendly settlement
of the matter on the basis of respect for the human rights contained in the
Convention. The friendly settlement
procedure did not succeed, however, owing to the lack of response from the
Analysis of the merits
Liability of the State
The State of Haiti did not specifically dispute the facts denounced
before the Commission. In its responses to the petitioner’s complaint, the State claimed
that in no circumstances could it be responsible for the human rights violations
committed by the successive de facto
governments in power in the country between September 30, 1991 and October
14, 1994. The State indicated
further that the perpetrators, who did not have any power to bind the State,
should answer personally for their actions.
Accordingly, the Commission considers it pertinent to expound a number
of generally recognized principles of international law regarding the liability
of the State.
To begin with, the fact that the violations may have been committed
by a Government lacking democratic legitimacy does not alter the international
responsibility of the Haitian State.
Indeed, international law provides that a change of government outside
the constitutional rules, followed by a coup
d’état, nevertheless stems from the principle of the autonomy of states
to choose their political regime, and therefore that the previous state continues
to exist in spite of any constitutional and political changes to it.
The foregoing stems from the so-called principle of continuity of the
state, according to which the rights and responsibilities of the state are
not affected by a new internal form of government even though the source that
originated it might be illegal. The
Commission has ruled on the continuity of the state on frequent occasions,
in particular in the amnesty cases against the republic of Chile, where it
the regime that issued the law or the state organs that applied it or facilitated
its application, the state of Chile is responsible for the violations incurred
by Decree Law 2191, which was not repealed by the present Legislative and
which was applied by the Judiciary. Although the events occurred under the
previous military regime, the State of Chile still bears responsibility, as
these events have still not been investigated, nor has any punishment been
The Inter-American Court of Human Rights has confirmed that the responsibility
of the State exists independently of changes in government, specifying the
to the principle of the continuity of the State in international law, responsibility
exists both independently of changes of government over a period of time and
continuously from the time of the act that creates responsibility to the time
when the act is declared illegal. The foregoing is also valid in the area
of human rights although, from an ethical or political point of view, the
attitude of the new government may be much more respectful of those rights
than that of the government in power when the violations occurred7.
Consequently, the Haitian State cannot avoid its international responsibility,
on the basis that the acts in violation of human rights were not committed
by its Government, or that the perpetrators had no power to bind the State
and should answer personally for their actions on both civil and criminal
counts. On this point, the Court
has held that:
international law a State is responsible for the acts of its agents undertaken
in their official capacity and for their omissions, even when those agents
act outside the sphere of their authority or violate internal law8.
The responsibility of the State means, however, that acts generating
responsibility can be classed as "acts of the State".
To that end, the generally recognized principles of international responsibility
specify an act of the state as any act by agents of the State or by persons
whose prerogatives are generally attributed to the state.9
Finally, the Commission finds on the question that “the perpetrators
should answer personally for their actions,” that the objective of international
human rights law is not for international organizations to punish those individuals
who are guilty of violations, but rather to protect the victims and to provide
for the reparation of damages resulting from the acts of the states responsible.10/
devolves upon the State to respect the rights and freedoms recognized in the
American Convention, in such a way that any impairment of those human rights
which can be attributed under the rules of international law to the action
or omission of any public authority constitutes an act imputable to the State,
which assumes responsibility in the terms provided by the Convention.11
Violations of Articles 4 and 5 of the American Convention
Article 4 of the American Convention on Human Rights provides that,
"Every person has the right to have his life respected.
This right shall be protected by law and, in general, from the moment
of conception. No one shall be
arbitrarily deprived of his life.”12
Article 5 of the American Convention provides that every person has
the right to have his physical, mental, and moral integrity respected.
The testimonies of three individuals who witnessed the events denounced
(who requested that their names be withheld), which have not been refuted
by the Government, reveal that, on May 12, 1994, at around 3:00 a.m., four
men dressed as civilians (one of them wearing an olive drab army cap) and
heavily armed with revolvers and submachine guns, broke violently into the
abode of the Pierre family (at 0931 Rue Soleil # 17, Cité Soleil).
The assailants, unable to open the steel door of the trading store
owned by Mr. Pierre, made a hole in the cement wall leading to the Pierre’s
The four men then beat two members of the family, namely
Jean Claude Pierre (aged 40) and Ulrick Pierre (aged 19), insulting them and
referring to them as lavalasiens,
while also demanding money from them.
According to the complainant, the assailants then tied the arms of
Jean-Claude Pierre and Ulrick Pierre with a length of electric cable, took
them out into the street, and shot Jean-Claude Pierre in the ear.
Then they shot Ulrick Pierre in the neck and, believing him dead, left
him where he lay. The attackers left Jean-Claude Pierre’s corpse without taking
the two gold rings he was wearing or any goods from the shop. Ulrick’s sister,
Jerseyla Adrien Juste (aged 17), was released after being threatened.
Ulrick was taken to the General Hospital.
Observers with the OAS/UN International Civilian Mission, who were
investigating another case, then took Ulrick to Diquini Hospital in Carrefour
at the request of one of his relatives, who feared that the assailants would
find out where he was and murder him.
At Diquini Hospital, the IACHR lawyer took a statement from Ulrick
and was able to verify the wounds that he had sustained.
During the processing of the case, Ulrick Pierre named two of the persons
who had participated in the attack and murder of Jean-Claude Pierre as Corporal
Louis-Mar, a guard at the National Palace, and Sergeant Linisse, of the Cité
Soleil Police Station (Avant Post).
According to Ulrick, Sergeant Linisse gave the order to kill him and
The events denounced were not disputed by the State. The State’s response
does not specifically address the violations that took place on May 12, 1994,
but rather asserts in a general manner that it cannot be responsible for the
violations committed in Haiti between September 29, 1991 and the October 14,
The absence of a substantive response by the State to the facts alleged
would be sufficient to permit the Commission to take the events denounced
by the petitioner as being true. Bearing
in mind, however, the various circumstantial and conclusive evidence in this
case, particularly the political connotations of the attack on the Pierre
family, which was accused of supporting the political regime of the President
deposed by the de facto military
government, the Commission cannot disregard additional grave facts relating to the de
facto government which pursued or
tolerated a practice of repression and terror against a defenseless people
from 1991 to 1994.15
In its 1995 Special Report on the Situation of Human Rights in Haiti,
the Commission stated that an estimated 3,000 people had been murdered since
the coup d’état on September 29,
1993, following the signing of the Governors Island Agreement, the repression
escalated to alarming levels when the people, encouraged by this agreement,
publicly expressed their support for President Aristide. Cases of arbitrary
arrest, beating, illegal search, confiscation of goods and arson, abduction,
and torture increased, and this forced victims and their family members to
abandon their homes and live underground. President Aristide stated, mid-1994, that the number of
deaths had risen to 5,000..16
On the occasion of its on-site visit to Haiti in May 1994, the Commission received information
on 210 cases of extrajudicial executions recorded between February and May
that year. The OAS/UN International
Civilian Mission established 340 cases reported between February and June 1994.17
The Commission obtained testimonies
that irrefutably established the army's responsibility in the massacre of
defenseless people in March 1994. These attacks all showed similar characteristics:
veritable military campaigns in which army units, assisted by FRAPH and other
paramilitary groups, surrounded and erupted in localities under the pretext
of combating subversive groups and locating illegal arms, indiscriminately
beating up people and committing acts of arson, destruction of their crops
and robberies, followed by arbitrary arrest.18
During the aforementioned on-site
visit, the Commission also observed that most human rights violations
of which it was apprised followed a systematic pattern of repression, which
in turn revealed a political plan of intimidation and terror against the Haitian
people, especially in sectors that supported President Aristide or that
had demonstrated in favor of democracy in Haiti. Thus, in the marginal slums
of Port-au-Prince, such as Cité Soleil, armed paramilitary groups carried
out raids late at night, murdering and robbing its residents.19
In its 1995 Report, the Commission concluded that "the serious
deterioration of the human rights situation was in keeping with a plan of
intimidation and terror against defenseless people and it held the authorities
holding de facto power in Haiti
accountable for these violations."20/
The testimonies and documentary evidence obtained by the Commission
in the course of its on-site visit in Haiti, which took place over the same period as the
murder of Jean Claude Pierre, as well as the manner in which the attack on
the Pierre family’s house was perpetrated (excessive use of force to destroy
a cement wall, late at night, carrying weapons normally used by members of
the army or paramilitary groups, acting with complete impunity), are sufficient
to establish the participation or complicity of the de facto authorities.
Based upon the foregoing, the Commission is convinced that that attack
against the petitioner and his family formed part of a practice of intimidation
pursued by the de facto military
government against anyone who supported the democratic regime. Accordingly,
the Commission concludes that agents of the de
facto military government violated the right to life to the detriment
of Jean Claude Pierre, and the right to physical integrity to the detriment
of Ulrick Pierre, both these rights being contained in Articles 4 and 5, respectively,
of the American Convention.
With regard to Ulrick’s younger sister, Jerseyla Adrien Juste, who
was at the scene of the events, the MICIVIH and the IACHR were able to obtain
an eyewitness statement from her immediately after the violations were committed.
However, the evidence does not establish that she was the victim of
an attack on her person that endangered her physical or mental integrity,
as set forth in Article 5 of the American Convention.
Right to judicial protection
The responsibility of the State of Haiti in this case also relates
to Article 25 of the American Convention, which stipulates that:
1. Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his 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.
The States Parties undertake:
to ensure that any person claiming such remedy shall have his rights
determined by the competent authority provided for by the legal system of
to develop the possibilities of judicial remedy; and
to ensure that the competent authorities shall enforce such remedies
Under Article 25 of the Convention, the petitioner and victims’ relatives
have the right to a simple and prompt recourse, or any other effective recourse,
against acts that violate their fundamental rights recognized by the Constitution
and by the American Convention.
The record before the Commission indicates that on May 12, 1994, the
MICIVIH observers testified before the Justice of the Peace of Croix des Missions,
Mr. Jean Alex Civil, and before Corporal Blauture Joissaint of the Cité Soleil
Police Station on the events underlying the petitioner’s complaint.
However, the competent authorities did not open an investigation, despite
the fact that Article 19 of the Code of Criminal Procedure of Haiti stipulates
established authority and any functionary or official who, in the performance
of their duties, learns of a crime or of an offense, must immediately advise
the Sheriff of the authority under whose jurisdiction that crime or that offense
has allegedly been committed, or in which the suspect may have been found,
and convey to that magistrate all related information, oral proceedings, and
The Haitian State did not refute the lack of judicial protection denounced
in the present case. On the contrary, it stated that, “The judiciary has not taken
up ex officio all the cases of human
rights violations recorded in the country during the three years of terror
and complete lack of lawfulness. However,
a National Commission of Truth and Justice had been established with a mandate
to clarify all the crimes committed during that period.”21
The Commission notes that the State recognized expressis
verbis its incapacity to take up ex
officio every case involving human rights violations.
However, it should also be mentioned that the instant case concerns
a murder offense, which is prosecutable ex
officio, and in respect of which the Commission has repeatedly requested
information from the Government.
The State also refers to Haiti’s National Commission of Truth and Justice
(CNVJ) as an institution designed to remedy human rights violations.
However, the Commission believes that the CNVJ does not constitute
a legal institution or body whose decisions carry the authority of res
judicata. In legal terms, the scope and mission of the CNVJ are relatively
limited, since it does not have the legal competency to mete out punishments
or to award compensatory damages to victims.
Accordingly, this institution cannot reasonably be considered an adequate
substitute for judicial proceedings that ensure an effective recourse.
The Inter-American Court has interpreted Article 25(1)
to ensure not only a simple and prompt recourse, but also an effective recourse
for protection of the rights recognized in the Convention.22
Indeed, Article 25(1) incorporates the principle recognized in international
human rights law of the effectiveness of the procedural instruments or means
designed to guarantee such rights.23
It is not sufficient that the remedy in question be formally recognized
by the system of laws of the State.
Rather, the State must develop the possibilities of an effective remedy,
and that remedy must be substantiated in accordance with the rules of due
process of law.24
Article 25(1) recognizes the procedural institution of
amparo, which is a simple and prompt
judicial remedy designed for the protection of all the rights recognized in
the Convention and in the constitutions and laws of the states parties.
The effectiveness of the remedy provided for under Article 25 can be
undermined if, as the Court has said, the Judicial Power lacks the necessary
independence to render impartial decisions or the means to carry out its judgments,
in any other situation that constitutes a denial of justice, for example,
when there is an unjustified delay in the decision, or when, for any reason,
the alleged victim is denied access to a judicial remedy.25
The facts in the present case reveal the failure of a simple, prompt,
and effective remedy to respond to the victim’s claims to his right to justice.
The time taken by the Haitian authorities to pronounce on the events
denounced (nearly five years), is a further indication of the ineffectiveness
of the judicial system in affording protection of rights contained in the
The petitioners went before the jurisdictional organ provided by the
Law, in order to seek a judicial remedy that would enable them to bring a
criminal proceeding against the persons who violated their rights.
This demonstrates that the petitioner had free access to that remedy.
However, the Commission takes the view that the right to effective judicial
protection provided in Article 25 is not exhausted simply by free access to
and processing of the judicial remedy.
It is necessary that the organ involved reach a reasoned conclusion
on the merits of the claim, and that it establish the admissibility or inadmissibility
of the legal claim that specifically gives rise to the judicial remedy.26
Moreover, the tribunal’s final decision constitutes the basis of the
judicial remedy recognized by Article 25 of the American Convention, as the
decision will entail indispensable individual guarantees and obligations for
In the instant case, the authorities (the Croix des Missions Court)
before which the violations were denounced ignored the claim for justice.
The Commission finds that the inaction of the competent authorities
had the effect of rendering the petitioner unable to obtain an effective judicial
remedy that would enable him to institute a criminal proceeding against alleged
acts in violation of his rights.
The Commission finds that the internal logic itself of any judicial
remedy, especially as provided by Article 25, indicates that Judge must firmly
establish the truth or the error in the claimant’s allegation.
The claimant goes before the judicial organ to allege an infringement
on his rights, and the organ in question, after a procedure to consider evidence
and arguments concerning that allegation, is under obligation to decide whether
the claim is sound or unsound. Otherwise,
the judicial remedy would be incomplete.
Apart from being incomplete, the judicial remedy would be plainly ineffective
since, by not enabling the violation of rights to be recognized, it would
not be adequate to protect the infringed right of the individual nor to provide
him fitting redress in the event that violation were proven.
The Inter-American Court has ruled that:
Article 25 (1) incorporates the principle recognized in the international law of human rights of the effectiveness of the procedural instruments or means designed to guarantee such rights. As the Court has already pointed out, according to the Convention:
"...States Parties have an obligation to provide effective judicial remedies to victims of human rights violations (Art. 25), remedies that must be substantiated in accordance with the rules of due process of law (Art. 8(1)), all in keeping with the general obligation of such states to guarantee the free and full exercise of the rights recognized by the Convention to all persons subject to their jurisdictions."
to this principle, the absence of an effective remedy to violations of the
rights recognized by the Convention is itself a violation of the Convention
by the State Party in which the remedy is lacking. In that sense, it should
be emphasized that, for such a remedy to exist, it is not sufficient that
it be provided for by the Constitution or by law or that it be formally recognized,
but rather it must be truly effective in establishing whether there has been
a violation of human rights and in providing redress. A remedy, which proves
illusory because of the general conditions prevailing in the country, or even
in the particular circumstances of a given case, cannot be considered effective.27
The Commission notes that the provision contained in Article 25, clause
2, paragraph a, itself expressly establishes the right of any person claiming
a judicial remedy to “have his rights determined by the competent authority
provided for by the legal system of the state".28 To
determine such rights involves making a determination of the facts and the
alleged right, that will have legal force and that will bear on and deal with
a specific object. This object is the claimant’s specific claim. When, in
this case, the Court of the Justice of the Peace of Croix des Missions ignored
the petitioner’s claim, it failed to determine the petitioner’s rights or
to analyze his claim’s soundness. As
a result, the State prevented the petitioner from enjoying the right to a
judicial remedy under the terms of Article 25.29
Right to a fair trial
Under Article 8(1) of the American Convention:
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.
As mentioned, the acts in violation of human rights at issue in this
petition were denounced before the Justice of the peace of Croix des Missions
on May 12, 1994. However, the
authorities did not initiate any judicial proceeding.
The Commission finds that the fact that nearly five years have elapsed
since the events occurred without the commencement of a criminal suit demonstrates
that no serious investigation has been carried out.30
The foregoing renders the State responsible on the international plane.
In this respect, the Inter-American Court of Human Rights has stated the following:
duty to investigate, like the duty to prevent, is not breached merely because
the investigation does not produce a satisfactory result. Nevertheless, it
must be undertaken in a serious manner and not as a mere formality preordained
to be ineffective. An investigation must have an objective and be assumed
by the State as its own legal duty, not as a step taken by private interests
that depends upon the initiative of the victim or his family or upon their
offer of proof, without an effective search for the truth by the government.
This is true regardless of what agent is eventually found responsible for
the violation. Where the acts of private parties that violate the Convention
are not seriously investigated, those parties are aided in a sense by the
government, thereby making the State responsible on the international plane.31
Considering that the case was not examined in a judicial proceeding
and that four years and ten months elapsed without an investigation of the
events that would enable the corresponding criminal proceedings to be instituted
to identify and punish the guilty parties, the Commission concludes that Haitian
State failed to satisfy the requirement regarding reasonable time stipulated
in Article 8(1) de the American Convention.
Obligation to respect rights
The correlative obligations of Haiti under Articles 4, 5, 8, and 25
of the Convention relate to the obligations assumed by states parties under
Article 1 to ensure to all persons subject to their jurisdiction the free
and full exercise of the rights and freedoms recognized by the applicable
domestic laws and by the American Convention.
The violations described show that the State of Haiti failed to fulfill
the obligation contained in Article 1, clause 1, of the Convention to respect
the rights and freedoms recognized in the Convention and to ensure to all
persons subject to its jurisdiction the free and full exercise of those rights
ACTIONS TAKEN AFTER REPORT Nº 47/99
On March 12, 1999, the Commission approved Report 47/99 on this case,
pursuant to Article 50 of the Convention, and transmitted it to the Haitian
State, with its respective recommendations.
The Commission set a two-month deadline for compliance with its recommendations.
this deadline has passed, the Haitian State has not presented its observations
on Report Nº 47/99.
75. The Commission concludes that the State of
Haiti is responsible for the violation of the right to life to the detriment
of Jean Claude Pierre, and the right to physical integrity to the detriment
of Ulrick Pierre, these rights being enshrined in Articles 4 and 5 of the
The State of Haiti has not adopted effective measures to ensure the
rights of the victims to a fair trial and to judicial protection.
This omission on the part of the State constitutes a violation of Articles
8 and 25 of the Convention, which together establish the right to those effective
measures. The State of Haiti has failed to fulfill the obligations assumed
under Article 1, clause 1 of the Convention to respect and ensure the free
and full exercise of the rights and freedoms under the Convention.
77. Based on the analysis and conclusions contained
in the instant report,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS REITERATES THE FOLLOWING RECOMMENDATIONS
TO THE STATE OF HAITI:
Carry out a thorough, impartial, and effective investigation to ascertain
the circumstances surrounding the death of Jean
Claude Pierre and the injuries to Ulrick Pierre on May 12, 1994, in order
to identify and punish those responsible in accordance with Haitian law.
Adopt the necessary measures for the relatives of the victims named
in the first paragraph of the instant report to receive adequate and timely
compensation for the violations established herein.
December 8, 1999, the Commission sent Report Nº 116/99--the text of which
is above--to the Haitian State and to the petitioners, in keeping with Article
51(2) of the American Convention; and it set a deadline of one month for the
State to comply with the foregoing recommendations.
In accordance with Article 51(2), the Commission, in this phase of
the process, shall confine itself to assessing the measures taken by the Haitian
State to comply with the recommendations and to remedy the situation under
review. The Haitian State has
not presented its observations on Report Nº 116/99.
Accordingly, and pursuant to Articles 51(3) of the American Convention
and 48 of the Commission’s Regulations, the Commission decides: to reiterate
the conclusions and recommendations contained in Chapters VI and VII supra; to publish this report; and to include it in the Commission’s
Annual Report to the General Assembly of the OAS. Pursuant to the provisions
contained in the instruments governing its mandate, the IACHR will continue
to evaluate the measures taken by the Haitian State with respect to those
recommendations, until the State has fully complied with them.
and signed at the headquarters of the Inter-American Commission on Human Rights,
in the city of Washington, D.C., on this 24th day of February 2000. (Signed):
Hélio Bicudo, Chairman; Claudio Grossman, First Vice-Chairman; Juan Méndez,
Second Vice-Chairman; Commissioners:
Marta Altolaguirre, Robert K. Goldman, Peter Laurie and Julio Prado
1 As a result of the political
crisis and the grave human rights situation in Haiti, the IACHR conducted
several on-site visits to observe
the situation in that country. The
military coup d’état directed
by General Raoul Cédras deposed the constitutional president, Jean Bertrand
Aristide, on September 29, 1991.
Hundreds of President Aristide’s supporters were murdered in the
days following the coup d’état. A campaign of killings and intimidation was instituted against
all those who supported a return to democracy, and was stepped up in the
years that followed.
The Organization of American States, concerned by the
alarming number of human rights violations, used every means to put an
end to those violations and to initiate, in close coordination with the
United Nations, a policy of dialogue with the de
facto authorities. During
the political crisis in Haiti, the IACHR never failed to accord priority
to the human rights situation in that country.
Accordingly, the IACHR made on-site
visits in December 1991, August 1993, May 1994, October 1994, and March
1995. Each year the IACHR
presented special reports on the situation of human rights in Haiti to
the OAS General Assembly.
2 The mandate of the OAS/UN
International Civilian Mission set up in Haiti in 1992 is to observe the
human rights situation in that country.
a term used to refer to those who supported President Jean-Bertrand Aristide’s
4 Velásquez Rodríguez Case, Preliminary Objections, Judgement
of June 26, 1987, Inter-American Court of Human Rights, Series C No. 1,
5 Velásquez Rodríguez Case,
Preliminary Objections, Judgement of June 26, 1987, Inter-American Court
of Human Rights, para. 91, p.40.
6 Report Nº 25/98 on Cases 11.505, Alfonso René Chanfeau
Orayce; 11.532, Agustín Eduardo Reyes González; 11.541, Jorge Elías Andrónico
Antequera and his brother Juan Carlos, and Luis Francisco González Manriquez;
11.546, William Robert Millar Sanhueza and Jorge Rogelio Marín Rossel;
11.549, Luis Armando Arias Ramírez, José Delimiro Fierro Morales, Mario
Alejandro Valdés Chávez, Jorge Enrique Vásquez Escobar, and Jaime Pascual
Arias Ramírez; 11.569, Juan Carlos Perelman and Gladys Díaz Armijo; 11.572,
Luis Alberto Sánchez Mejías; 11.573, Francisco Eduardo Aedo Carrasco;
11.583, Carlos Eduardo Guerrero Gutiérrez; 11.585, Máximo Antonio Gedda
Ortiz; 11.595, Joel Huaiquiñir Benavides; 11.652, Guillermo González de
Asís; 11.657, Lumy Videla Moya; 11.675, Eulogio del Carmen Ortiz Fritz
Monsalve; and 11.705, Mauricio Eduardo Jorquera Encina. See IACHR 1997
Annual Report, OEA/Ser.L/V/II. 98, doc. 6, rev., April 13, 1998, pp.520-559.
See IACHR 1996 Annual Report, Report Nos. 36/96 and 34/96, Chile, pp.162-240.
On this point see also Greek Case, in Yearbook of the European
Convention on Human Rights, 1969, Martinus Nijhoff, The Hague, 1972.
7 Velásquez Rodríguez Case, Judgement of July 29, 1988,
Inter-American Court of Human Rights, para. 184, p.76.
8 Ibid, para.
170, p. 70.
9 See Henkin, Pugh, Schachter, and Smit, International
Law: Cases and Materials, West Publishing Company, St. Paul, Minn,
10 Velásquez Rodríguez Case, Judgement of July 29, 1988,
Inter-American Court of Human Rights, p.51.
11 Ibid, para.
12 Haitian law also protects the right to life, Article
19 of the 1987 Constitution establishing that, "The state has the
overriding obligation to guarantee the right to life, to health, and respect
for the person of every citizen without distinction, in accordance with
the Universal Declaration of Human Rights".
By the same token, Article 20 of the Constitution resolves the
abolition of the death penalty in all matters.
13 Additional information presented
by the petitioner on July 15, 1995.
14 See communications from the
Haitian State of June 28, 1995 and May 15, 1996.
15 See IACHR Special Reports
on the Situation of Human Rights in Haiti, 1993, 1994, and 1995.
16 Report on the Situation of Human Rights in Haiti, doc.
OEA/Ser.L/V/II.88, doc. 10 rev., February 9, 1995, CIDH/OEA, pp.34 and
17 Ibid., p.
18 Ibid., p.
20 Ibid., p.
21 Communication from the Haitian State of June 28, 1995.
22 Judicial Guarantees in States of Emergency (Arts. 27(2),
25 and 8 of the American Convention on Human Rights), Advisory Opinion
OC-9/87 of October 6, 1987, Inter-American Court of Human Rights. (Ser. A) Nº 9 (1987), para. 23.
23 Ibid, para.
24 Velásquez Rodríguez, Fairén Garbi and Solís Corrales,
and Godínez Cruz Cases, Preliminary Objections, Judgements of June 26,
1987, Inter-American Court of Human Rights, paras. 91, 90, and 92, respectively.
25 Judicial Guarantees in States of Emergency (Arts. 27(2),
25 and 8 of the American Convention on Human Rights), Advisory Opinion
OC-9/87 of October 6, 1987, Inter-American Court of Human Rights. (Ser. A) Nº 9 (1987), para. 24.
26 The Commission has expressed its understanding in relation
to Article 25 of the Convention on several occasions. See Case 10.950
27 OC-9/87, para. 24.
28 Article 13 of the European Convention on Human Rights
provides that: "Everyone
whose rights and freedoms as set forth in this Convention are violated
shall have an effective remedy before a national authority notwithstanding
that the violation has been committed by persons acting in an official
capacity.” In the Case of Silver and others, Judgement of March 25, 1983,
the European Court, established in reference to Article 13 that, "The
principles that emerge from the Court's jurisprudence on the interpretation
of Article 13 (art. 13) include the following: (a) where an individual
has an arguable claim to be the victim of a violation of the rights set
forth in the Convention, he should have a remedy before a national authority
in order both to have his claim decided and, if appropriate, to obtain
29 See Case 10.087, Report 30/97, Argentina, OEA/Ser/L/V/II.97
30 See Case of Genie versus Nicaragua, submitted by the
IACHR to the Inter-American Court of Human Rights on January 6, 1994;
see also Report Nº 17-89, Case
Nº 10.037, Mario Eduardo Firminich, in IACHR 1988-1989 Annual Report,
31 Velásquez Rodriguez Case, Judgement of July 29, 1988, para. 177, pp.72 and 73.