Institute for Justice and Democracy in Haiti

AFFIDAVIT OF MARIO JOSEPH IN SUPPORT OF CONTENTION THAT DOMESTIC REMEDIES IN HAITI ARE NOT AVAILABLE FOR PETITIONERS

INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
PETITION OF HAITI CITIZENS AGAINST THE INTERIM GOVERNMENT OF HAITI, THE UNITED STATES AND BRAZIL

 

AFFIDAVIT OF MARIO JOSEPH IN SUPPORT OF CONTENTION THAT DOMESTIC REMEDIES IN HAITI ARE NOT AVAILABLE FOR PETITIONERS

 

I, MARIO JOSEPH, hereby declare that the following statements are true to the best of my knowledge:

1.  I am a citizen of the Republic of Haiti and a member of the bars of St. Marc and Port-au-Prince. I am the managing attorney for the Bureau des Avocats Internationaux (BAI), in Port-au-Prince, Haiti. In that capacity, I defend and assist victims of human rights abuses, including political prisoners.

2.  My knowledge of Petitioners’ case and my experience representing victims of human rights abuses over the last two years leads me to the conclusion that Petitioners do not have an adequate and effective domestic remedy available under the Interim Government of Haiti (IGH), because: 1) the IGH has systematically denied political prisoners and victims of police abuse due process of law since March 2004; 2) even if Petitioners obtain an order or judgment in their favor from a court, past experience shows that it is unlikely that the IGH will permit the order or judgment to be enforced; and 3) the IGH has systematically attacked the independence of judges, especially in political cases, making it unlikely that a judge would dare to rule against the government in such a high-profile case. Requiring Petitioners to continue to pursue their case in Haitian courts under these circumstances would be a senseless formality.

3.  The cases of political prisoners demonstrate that the IGH pursues a policy and practice of intimidation and obstruction of judicial procedures with respect to political dissidents, which prevents the effective resort to domestic remedies. The IGH routinely refuses to allow arrestees to appear before a judge for the hearing that Article 28 of Haiti’s Constitution guarantees within 48 hours. This practice has been criticized by human rights groups, the UN Security Council and the Commission. Other dissidents were afforded an initial hearing, but after that there have been no further proceedings in their cases, in violation of Article 7 of the Law of 26 July 1979. For example, grassroots activist and folksinger Annette Auguste was arrested illegally on May 10, 2004 and brought before a judge within 48 hours. She has never been formally charged, there is no apparent movement in her case, and she remains in jail.

4. When political detainees are allowed before a judge, the IGH often ignores orders for their release. Grassroots activist Jean-Marie Samedi was arrested in October 2004 for planning a September 30 demonstration. On November 24, 2004, a judge found his detention illegal and arbitrary, and ordered him freed. The government refused to allow him out, although he escaped during the February 19, 2005 prison break. On December 23, 2004, political prisoners Harold Sévère and Anthony Nazaire were ordered by another judge to be freed after ten months of illegal detention. In those cases, the prosecutor even agreed to execute the order, but over one year later both are still in prison under an illegal order from the Minister of Justice.

A judge in Les Cayes, Haiti, indicated in a hearing in July 2004 that he would release former local official Jacques Mathelier for lack of evidence. Before the order could be issued, the IGH transferred Mathelier to the National Penitentiary, out of the judge’s jurisdiction. The judge was then replaced by a new judge who has kept him in prison.

5.  The IGH has systematically intimidated judges, especially in high-profile political cases. In July 2004, the Haitian Judges’ Association, ANAMAH, issued a press release deploring the increase in the politicization of justice and illegal arrests over the previous four months. Later that month, the IGH transferred Jacques Mathelier away from the judge who began the process to free him. On November 24, 2004, Judge Jean Sénat Fleury, one of Haiti’s most respected judges, ordered the liberation of Rev. Gérard Jean-Juste, a Catholic Priest and political dissident, who had spent a month in jail without seeing a judge. The IGH eventually gave in to international pressure and released Fr. Jean-Juste. Just before Christmas 2004, Judge Brédy Fabien ordered the release of six more dissidents, including Harold Sévère and Anthony Nazaire, for lack of evidence. On December 30, Minister of Justice Bernard Gousse instructed the chief judge of the Port-au-Prince Trial Court to immediately take all cases from Judges Fleury and Fabien. This was a clear violation of the principle of judicial independence, enshrined in Haiti’s Constitution. Judge Fleury, unwilling to serve in such a corrupt system, resigned.

On December 9, 2005, the IGH illegally forced five Justices of the Cour de Cassation, or Supreme Court, off the court, because they issued a decision that the Executive Branch disagreed with. Since then, the entire justice system has been closed down for a strike.

6.  Although lawyers are permitted to represent people in political cases, they are subject to intimidation by both the IGH and armed groups. On October 2, 2004, attorney Axène Joseph went to Radio Caraibes to represent three current and former members of Parliament that the police were trying to arrest without a warrant, following a radio debate. The police arrested attorney Joseph and held him until the next day, even though there were never any accusations made against him in the police file. Human rights defenders, including me, have been subject to intimidation through telephone calls and other means. Amnesty International issued an urgent action alert on October 11, 2004 for my safety and that of lawyer Renan Hédouville. When American human rights lawyer Ira Kurzban traveled to Haiti on March 7 to visit a client and to document his health and the conditions of his detention, he was not allowed to enter the country.  All these attacks do not make finding a lawyer impossible, but they do greatly decrease lawyers’ ability and willingness to zealously represent parties in political cases.

7.  For the foregoing reasons, I conclude that adequate and effective domestic remedies are not available to Petitioners in the Haitian courts.

 

 

___________________________
Mario Joseph, Av.
Bureau des Avocats Internationaux

January 23, 2005

 

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