RIGHT OF PROTECTION FROM ARBITRARY ARREST AND RIGHT TO DUE PROCESS OF LAW
The American Declaration of the Rights and Duties of Man
No person may be deprived of his liberty except in the cases and according to the procedures established by pre-existing law.
No person may be deprived of liberty for nunfulfillment of obligations of a purely civil character.
Every individual who has been deprived of his liberty has the right to have the legality of his detention ascertained without delay by a court, and the right to be tried without undue delay or, otherwise, to be released. He also has the right to humane treatment during the time he is in custody.
Every accused person is presumed to be innocent until proved guilty.
Every person accused of an offense has the right to be given an impartial and public hearing, and to be tried by courts previously established in accordance with pre-existing laws, and not to receive cruel, infamous or unusual punishment.1
1. Articles 17, 18, 19, 20 and 21 of the Haitian Constitution protect the Haitian people against violations by government agents of the right referred to in the present chapter. These articles read as follows:
Article 17. Individual liberty shall be guaranteed. No one may be prosecuted, arrested of detained except in the cases determined by law and in the manner which it prescribes.
In addition, no one may be arrested or detained except by order of a legally competent official.
For the execution of such an order it is necessary:
1. That it formally state the reason for the arrest and the law that punishes the act charged;
2. That legal notice of it be given and that a copy of the order be left with the accused at the time of its execution, except in cases of flagrante delicto.
No one may be kept under arrest more than forty-eight hours unless he has appeared before a judge who is assigned to rule on the legality of the arrest and the judge has confirmed the arrest by a decision giving reasons.
In the case of a petty offense, the arrested person shall be referred to the Justice of the Peace, who will then pronounce a final decision.
In the case of more serious offenses, an appeal may be filed, without prior permission, simply by addressing a petition to the presiding judge of the relevant Civil Court, who, on the basis of the prosecutor’s oral statement, shall rule on the legality of the arrest in a special session of the court, without postponement or rotation of judges, all other cases being suspended.
In each case, if the arrest is judged illegal, the arrested person shall be released, any appeal to a higher court or to the Supreme Court (Cour de Cassation), notwithstanding. Any unnecessary force or restraint in the arrest or detention of a person, any moral pressure or physical brutality is forbidden.
All violations of these provisions shall be considered arbitrary acts against which the injured parties may, without prior authorization, appeal to the competent courts, prosecuting either the authors or the perpetrators, regardless of their rank or the body to which they belong.
Article 18. No one may be denied access to the judges to whom the Constitution or the law assigns him. A civilian may not be tried by a Military Court, nor may a military person be denied access to a court of ordinary law, in an exclusively civil matter, except when a state of siege has been declared by law.
On December 7, 1979, the government informed the Commission that it is interpreting Article 17 in such a way that when detention follows an arrest made pursuant to an arrest warrant, the forty-eight hour requirement within which the accused must be taken before a judge is deemed satisfied by the initial judicial determination of issuance of the warrant.
Article 19. House searches and seizures of papers shall be prohibited except pursuant to the law in accordance with legally prescribed procedures.
Article 20. No law shall be applied retroactively, except in criminal cases and only when it is favorable to the offender.
The law shall be retroactive in effect whenever it takes away vested rights.
Article 21. No penalty may be established except by law or imposed in the cases provided by law.
2. Over the last two years, the Commission has received denunciations of violations of these constitutional provisions. For example, a communication dated December 6, 1975 estates as follows:
On May 9, 1974, Mr. Marc Romulus was arbitrarily arrested in Port-au-Prince by government authorities, and was detained under inhuman conditions in Fort-Dimanche, Port-au-Prince, Haiti. Since his arrest one year and six months ago, he has not been brought to trial, nor has he had legal counsel. He has not been permitted to communicate with his family or a priest.
At first, the Government denied that Mr. Marc Romulus had been detained but it then acknowledged openly that he had been kept in secret detention without trial for more than two years.
Later, at its 41st session in May 1977, the Commission applied Article 51 of its Regulations, and decided to take the events thus denounced as having been confirmed.
Mr. Romulus was released as part of the general amnesty decree issued by President Duvalier in September 1977.
Also at the 41st session, the Commission took up a case (Nº 1944) concerning 72 individuals who, according to the denunciation, were not given due process of law, even though they had been detained for a number of years. Following an exchange of correspondence with the government of Haiti, the Commission decided to apply Article 51 of its Regulations, and to take the events thus denounced concerning 54 of these persons (whose names appear in an appendix to the resolution) as having been confirmed.
The resolutions in these two cases appear in the 1977 Annual Report of the Commission presented to the OAS General Assembly in June 1978, prior to the Special Commission’s visit to Haiti.
In its preliminary observations of the Commission’s Report, the government itself admits that there are serious problems in the administration of justice in Haiti. The Commission finds it appropriate to cite some of these remarks:
Many of the accused persons held in Port-au-Prince (and of course in other urban areas) are poor and illiterate, hardly speak or understand French (which is the official language of the Court), and have a very poor understanding of how Haitian justice works. Moreover, despite the government’s efforts in this regard, the Haitian people are not always fully aware of the rights guaranteed to all citizens by the Penal Code and the Constitution of Haiti. The accused can therefore languish in prison for minor infractions as well as for serious crimes without being brought to justice, because they have been arrested arbitrarily, due to delays in drawing up the reasons for the accusations, due to delays in bringing the accused before the judge, or due to the limited number of sessions.
In the opinion of the government, most of the problems in the administration of penal justice in Haiti stem from a lack of resources that would enable the accused to be brought before the competent judicial authorities as prescribed by the Constitution and Penal Code. Even though the law is still violated at every level, despite the improvements introduced over the last seven years, violations are most often due to the fact that this administration is overburdened, understaffed, or does not act unless pressure is applied, not to mention that the number of accused to be brought before the courts is very substantial. Moreover, even though the administration of penal justice has been revived from the period prior to 1971, it is still basically based on the 19th Century French model established several decades ago before the populations of Port-au-Prince and the rest of Haiti had increased considerably and reached their present level.
Since the services of the Public Prosecutor’s Office and of the Examining Magistrate are overburdened, there is strong pressure to get around the procedures designed to ensure that the accused are dealt with fairly. For example, the rule whereby a person under arrest must be brought before a judge within 48 hours is often the first to be violated. The rule for a speedy trial is another such example. Since there are simply too many accused, the government knows that many of them are judged out of court. Whether or not the prisoners appear before the court, each case is often dealt with on an individual basis, and imprisonment is determined by a whole set of factors such as the seriousness of the crime, the time already spent in prison, the accused’s socioeconomic position and/or nationality, the number of detainees waiting to appear, and—an important factor—whether the accused has an attorney to look out for his interests.
Given the nature of the problems set forth above, the government of Haiti has approved a plan proposed by the Bar Association of Port-au-Prince whereby it will establish a free legal aid service for defendants who face a prison sentence and who lack the means to pay an attorney.
Although establishment of this service does not guarantee that all defendants will have a speedy hearing or be judged impartially, it will surely make it possible to reduce the cases of unjustified and prolonged detention. In the long run, it will also make it possible to make the administration of Haitian criminal justice more efficient and more equitable.
The government has also approved another plan for the administration of criminal justice whereby a Legal Bureau would be established at the Central Police Station of Port-au-Prince. This office will be modeled after the legal counsel offices which have been created in the United States during the last 15 years in most central police stations. In the United States, their purpose has been to provide the police chiefs with the legal assistance they need and to assist the police stations in their relations with the courts and with the entire judicial system.
3. During its visit to detention centers in a number of places in Haiti, the Special Commission heard prisoner complaints about their lack of access to attorneys. Prisoners in the National Penitentiary in Port-au-Prince showed considerable lack of confidence in the few legal aid attorneys available to them.
During its visit to the towns in the interior of the country, the Special Commission interviewed prisoners in local jails, who informed it that a large number of prisoners had been condemned to between three and six months imprisonment without the benefit of due process.
The prisoners, notable those in Jacmel, declared that while they had not been mistreated in the local prison, they had been subjected to physical abuse at the time they were arrested by the section chief. This official seems to be responsible for maintaining order in the rural section under his control, and for arresting all persons accused of serious crimes.
Another aspect of the situation observed by the Special Commission during its visit was, as has been observed, the interference of the Executive in the affairs of the Judiciary.
4. Special mention should be made of the State Security Tribunal, which was created by an Act of August 25, 1977 of the Legislature. This special court, established to punish offenses affecting national (internal and external) security, covers “infractions whose ends or motives are political.” The judges are appointed by Presidential Decree, as is an active-duty military officer to aid the public prosecutor of the State Security Tribunal. According to Article 15 of the law, the indictment is served on the accused three days before he is scheduled to appear in court. Article 18 states that the court hearing shall begin only at the order of the public prosecutor, following the decision of the State Secretary of the Department of Justice. In addition, any one accused of a felony or a misdemeanor who has not yet been judged was given over to the jurisdiction of the newly created State Security Tribunal.
On December 7, the government informed the Commission that the law had been amended in March 1979 in order “to integrate the Tribunal into the normal judicial structure of the Port-au-Prince Court System, and to assure defendants the rights to counsel and to appeal both in timely fashion.”
5. In conclusion, it should be pointed out that after the Special Commission’s visit, the Haitian Legislature, since its closing session on September 19, 1978, has again given full powers to the President-for-Life and has suspended Articles 17, 18, 19 and 20, thus restricting the protection given under the Constitution.
1 American Convention on Human Rights
Article 8 – Right to a Fair Trial
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.