PETITIONTo the Inter-American Commission on Human Rights
- Bureau des Avocats Internationaux
Mario Joseph, Avocat
No. 3, 2ème Impasse Lavaud
Email : email@example.com
- Institute for Justice and Democracy in Haiti
Brian Concannon Jr., Esq.
P.O. Box 745
Joseph, OR 97846
Petitioners’ identity does not need to be kept confidential.
II. NAME OF THE PERSON OR PERSONS AFFECTED BY THE HUMAN RIGHTS VIOLATIONS
- Jimmy Charles (deceased)
- Jean Charles Déus Charles, Port-au-Prince, Haiti (father of the deceased)
- Mikelsie Jusma, Port-au-Prince, Haiti (wife of the deceased)Address under which persons under 4. and 5. can be reached:
c/o Bureau des Avocats Internationaux
No. 3, 2ème Impasse Lavaud
III. OAS MEMBER STATES AGAINST WHICH THE COMPLAINT IS BROUGHT
- Republic of Haiti, the Interim Government of Haiti (hereinafter, the “IGH”);
- Republic of Brazil
IV. FACTS DENOUNCED
- Jimmy Charles (hereinafter “Charles”), aged 27 years and father of two young children, was discovered by his family dead of 11 gunshot wounds in the morgue of the State University Hospital (Hôpital de l’Université d’État d’Haïti) in Port-au-Prince, Haiti, on January 13, 2005. The following events preceded his death:
- On January 5, 2005, Charles was arrested by Brazilian soldiers of the UN Stabilization Mission in Haiti (MINUSTAH) in front of his father’s home in the Fort National neighborhood of Port-au-Prince, close to his own home at Fort National #108. His arrest was illegal because it was neither based on an arrest warrant, nor was he caught in the act of committing a criminal offense. At the time of his arrest, he was about to unload sand for his father’s mason business from a truck.
- MINUSTAH handed Charles over to the Haitian National Police (hereinafter “HNP”) on the same day and Charles was imprisoned at the Anti-Gang Service holding cell at the commissariat in downtown Port-au-Prince, a single nine by twelve foot cement cell without running water, toilet or furniture where prisoners receive their only food and clean water from family members allowed to visit the cell door in the morning.
- Over the following days, Charles’ wife, Mikelsie Jusma, and his father, Jean-Charles Déus Charles, went to see him daily at the Anti-Gang cell and brought him food.
- On January 10, Charles was transferred before the Justice of Peace at the Tribunal of the South Section of Port-au-Prince, Marc Pascal. Judge Pascal declared that Charles’s file was incomplete, and that he did not belong under his jurisdiction. Charles was thus returned to the Anti-Gang holding cell without a judicial decision approving his arrest and without having been informed by the judge of any formal charges against him.
- On January 11, Charles’ legal representative at the time, Roosevelt St. Jean, went to the Anti-Gang Service to ask about his client and the status of the case. A police inspector by the name of Nazaire told him that another police report had been written, but still needed to be signed by the head of the Anti-Gang Service, who was absent. He further explained that Charles was going to be sent before the Justice of Peace of the East Section and suggested that Charles’ legal representative await Charles at the tribunal of the East Section the next day.
- The last time Jean-Charles Déus Charles saw his son alive was on January 11 in the afternoon. Charles’ wife, Mikelsie Jusma, last saw him alive on the morning of January 12, when she brought him food to the Anti-Gang cell.
- On January 12, Jean-Charles Déus Charles went to the Anti-Gang cell at around 2 o’clock in the afternoon, but his son was no longer there. He was told that Charles had been released earlier that day at around noon. He immediately went to his son’s house in Fort National to see whether his son had returned home. After not finding him there, he next went to the Tribunal of Peace of the East Section where he learned that Charles had not appeared at the tribunal that day.
- The family searched everywhere for Charles. His father once again returned to the Anti-Gang commissariat, where he was told he should look at the National Penitentiary. Hi thus went to the National Penitentiary to see whether Charles had been transferred there, but was informed that he had not. His father finally found his son’s bullet-ridden body in the morgue of the State University Hospital on January 13. The morgue personnel told Jean-Charles Déus Charles that the dead body had arrived in an ambulance at around 2 o’clock in the afternoon on the day before.
- Charles was an employee of Téléco, the Haitian telephone company, and a supporter of ousted President Jean Bertrand Aristide’s Fanmi Lavalas Party.
- In a press statement, police spokeswoman Jessy Cameau Coicou later alleged that Charles was killed during a clash between the police and “bandits” in the neighborhood of La Saline after having been released.
- On January 25, Charles’ father, Jean-Charles Déus Charles, and Charles’ wife, Mikelsie Jusma, filed a criminal complaint with the Chief Prosecutor (Commissaire du Gouvernment) at the Tribunal of First Instance of Port-au-Prince (attached as Exhibit B) and constituted themselves civil party to the criminal proceedings regarding Charles’ murder. The proceedings have not advanced to date (see below at V. (A) (d), para. 51-53).
- Charles’ next-of-kin and petitioners also made repeated requests to obtain an autopsy of Charles body and a forensic analysis to determine, inter alia, the proximity, direction and angle from which the 11 shots that killed Charles were fired. Despite these efforts, no autopsy was performed on Charles’ body.
- Dan Moskaluk, spokesperson for CIVPOL, the civilian police branch of MINUSTAH, later announced that Charles had been killed in a shootout, thus echoing the HNP’s version of the events. When questioned, CIVPOL investigators from the Unité de Crimes Majeurs stated, however, that the investigations were in fact ongoing. To date, Civpol has not made public its final findings.
A. Available Evidence
- Minutes by clerk (greffier) Pancho Lubin on the findings by Justice of Peace Serge Pierre, who examined Charles’ body at the State University Morgue on January 13, 2005 in the presence of Jean Charles Déus Charles; the minutes also include a deposition by Jean Charles Déus Charles (Exhibit A);
- Criminal complaint in the name of Jean Charles Déus Charles and Mikelsie Jusma of 25 January, 2005; includes first autopsy request (Exhibit B);
- Second autopsy request of March 14, 2005, declared before the Huissier du Parquet de Port-au-Prince (Exhibit C).
B. Witnesses to Violations Denounced
- Jean Charles Déus Charles;
- Mikelsie Jusma;
The witnesses’ identity does not need to be withheld. However, their current address and whereabouts are to be kept confidential.
C. Authorities Responsible for the Facts Denounced
- Conseil Supérieur de la Police Nationale, presided by interim Prime Minister Gérard Latortue;
- Haitian National Police, headed by Léon Charles at the time of Charles’ killing;
- Direction Départementale de la Police de l’Ouest (DDO) overseeing the area of Port-au-Prince, headed by Renan Etienne at the time of Charles’ killing;
- Anti-Gang-Service of the Haitian National Police, headed by Commissaire Auguste Mones at the time of Charles’ killing;
- Chief Prosecutor (Commissaire du Gouvernement) at the Tribunal of First Instance of Port-au-Prince; the post was held until recently by Jean Pierre Audain Daniel;
- Brazilian military high command of MINUSTAH, headed by Lieutnant-General Augusto Heleno Ribeiro Pereira at the time of Charles’ killing;
- Brazilian MINUSTAH detachment that arrested Charles in Fort National.
V. HUMAN RIGHTS VIOLATED
A. Violations by the Republic of Haiti
- The Republic of Haiti violated Articles 4, 5, 7, 8 and 25 of the American Convention on Human Rights (the “Convention”) with respect to Charles’ killing.
a. Right to Life (Article 4 (1))
- Article 4 (1) of the Convention states that “every person has the right to have his life respected…. No one shall be arbitrarily deprived of his life.”
- The last time a member of Charles’ family saw him alive was on the morning of January 12, while he was in custody in the downtown Anti-Gang holding cell. In the early afternoon of the same day, his dead body arrived at the State Hospital morgue with 11 bullet wounds, a strong indicator of an execution-style killing. This sequence of events and the available circumstantial evidence suggest that Charles was killed while he was still in police custody or immediately after he was “released” from the Anti-Gang cell only to be seized again and executed either by regular members of the HNP or by irregular police attachés assigned to the Anti-Gang commissariat and answering to its chief commissar, who at the time of Charles’ death was Commissaire Auguste Mones. The body is said to have arrived at the morgue in an ambulance. The HNP has police ambulances on call, which have repeatedly been used to transport victims of extra-judicial executions to the State Hospital morgue.
- Given that the Charles’ dead body reportedly arrived in the State University morgue in the early afternoon of the same day his wife last saw him in the Anti-Gang cell in the morning, the PNH’s claim that Charles was killed in a shootout between police and bandits is not credible. The first thing an individual would do immediately after being released after a week in detention in an overcrowded and unsanitary police cell, is to see his family or go into hiding, not to participate in an armed confrontation in another part of the city quite distant from his neighborhood.
- Where a person, who was last seen alive while being detained by authorities of the state, is found killed soon thereafter, such circumstantial evidence creates a strong presumption that state actors were responsible for the killing. In many such instances, only the detaining authorities themselves are in the position to provide direct evidence about the fate of the detained person. In such a case, it cannot be the exclusive burden of the victim’s next-of-kin to prove the state’s responsibility for the victim’s violent death. Rather the state must exonerate its actors from bearing responsibility for the death of a person they held in custody. As the Inter-American Court of Human Rights found in the Velásquez Rodriguez Case, “the State cannot rely on the defense that the complainant has failed to present evidence when it cannot be obtained without the State’s cooperation.” Especially the authorities’ refusal to conduct an autopsy of Charles’ body, which could inter alia clarify the distance from which he was fired upon, shows the absence of any form of cooperation.
- The case of Jimmy Charles is not an isolated case. It is symptomatic of a practice of police abuse and extra-judicial executions by members of the HNP and irregular police attachés, which has been denounced by numerous human rights reports both during 2004 and 2005, in the Report of the Security Council April Mission to Haiti, and in several reports by the UN Secretary General. Several other cases of summary executions in custody have been widely published: On March 20, 2004, for example, five young men aged 17 to 24 were arrested in the neighborhood of La Saline by a group of policemen and attachés from the Cafeteria Commissariat in Port-au-Prince. Their bullet ridden bodies were found the next day in different areas of the city reportedly bearing signs of torture. On October 27, 2004, police executed four young men in broad daylight in the Carrefour Péan Section of Delmas 2. The victims were reportedly dragged out of police vehicles which indicates that they had previously been arrested. Petitioners have received other credible accounts of family members who found their next-of-kin dead in the State Hospital morgue shortly after they had been arrested by either police or irregular police attachés.
On December 1, 2004 police officers and officers of the prison department executed a number of unarmed prisoners at the National Penitentiary to quell a non-lethal prison uprising. Although MINUSTAH and the PNH both announced investigations, neither has issued a public report.
- The IGH and the leadership of the HNP have not only tolerated, but actively channeled the described practice of extrajudicial executions as part of a systematic effort to silence opposition and penalize citizens – especially young male citizens – of certain popular neighborhoods of the capital by summarily treating them as outlaws.
- The IGH has further created a climate of all-out impunity for police abuse and unlawful killings under its reign. The respect for the right to life obliges the State Parties to the Convention to thoroughly investigate all allegations of extra-judicial executions by state officials, especially allegations of killings in custody. In Charles’ case, no impartial investigation was conducted, neither upon initiative of the IGH, nor by the Haitian judiciary. This failure to investigate by the Haitian government constitutes a violation of the victim’s right to life.
b. Right to Humane Treatment
- Article 5 of the Convention states:“1.. Every person has the right to have his physical, mental, and moral integrity respected.
2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person…”
- Before his death, the HNP detained Charles for eight days under appalling conditions in the notoriously overcrowded and unsanitary cell of the Anti-Gang unit. The Anti-Gang cell was conceived as a short-term holding cell where arrested persons are kept for a maximum of 48 hours in so-called garde à vue until they are seen by a judge and either released or taken to one of the prison facilities upon a judicial order (mandat de dépôt). In practice, however, arrested persons are regularly detained for much longer periods of time at the Anti-Gang cell, some for more than 30 days. Inmates depend on the help of family members or other inmates to obtain food, drinking water, and other basic necessities. They are allowed out of the cell only once a day to wash themselves and use a toilet. Prisoners are deprived of fresh air, and temperatures in the cell can reach 105 degrees Fahrenheit. Especially since September 2004, there was a constant influx of new arrestees to the Anti-Gang unit. At the time of Charles’ detention, the anti-gang cell was so overcrowded that inmates had to take turns to sit on the floor and had no room to lie down.
- The conditions at the Anti-Gang cell at the time of Charles’ arrest and detention deprived Charles and his fellow inmates of their basic dignity, and constituted cruel, inhuman and degrading treatment in violation of Article 5 (2) of the Convention.
c. Right to Personal Liberty and Security (Article 7)
- Article 7 states:
“1. Every person has the right to personal liberty and security.
2. No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto.
3. No one shall be subject to arbitrary arrest or imprisonment.
4. Anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him.
5. Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial.”
- The HNP detained Charles for a week without a judicial warrant and without formal charges. His detention had no basis in Haitian law. Since he had not been apprehended in the act of committing a crime (flagrant délit ), he could only be arrested and detained upon a warrant issued by an investigating judge (juge d’instruction) according to Articles 77 – 80 of the Haitian Code of Criminal Procedure – Code d’Instruction Criminelle (hereinafter CIC).
- Article 26 of the Haitian Constitution of 1987 stipulates that no one may be kept under arrest more than forty-eight hours unless he has appeared before a judge asked to rule on the legality of the arrest and the judge has confirmed the arrest by a well-founded decision. The competent judicial authority under Haitian law to rule on the legality of an arrest is the juge d’instruction. Charles was never deferred before a juge d’instruction before his death. He was not even sent before a justice of peace (juge de paix) until the sixth day of his imprisonment. The justice of peace who saw Charles on January 10, Justice Marc Pascal of the South Section, refused to make any findings and sent Charles back to the Anti-Gang cell. A second hearing scheduled for January 12 before a justice of peace of the East Section apparently never took place.
- The HNP thus unlawfully and arbitrarily deprived Charles of his physical liberty before his death.
- As Charles’ death demonstrates, he was further deprived of his right to personal security while in custody. The lack of judicial oversight over his detention increased his exposure to the police and facilitated his extra-judicial execution.
d. Judicial Guarantees and Judicial Protection (Article 8 (1) and 25 (1))
- Article 8 (1) provides that “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.”
- Article 25 (1) states that “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 judicial guarantees under Article 8 in combination with the right to simple and prompt judicial recourse under Article 25 of the Convention give the closest relatives of a person who suffered a violent death, allegedly at the hands of state agents, the right not only to claim reparations in civil proceedings, but also to request the conduct of a criminal investigation and subsequent proceedings with the aim of bringing the perpetrators to justice. The Inter-American Commission on Human Rights (hereinafter “IACHR”) has held with respect to Article 8 in combination with Article 25 of the Convention that “in those cases in which the violation of a protected right results in the commission of a criminal offense under domestic law, the victims or their next-of-kin have the right to have an ordinary criminal court determine the identity of the perpetrators, prosecute them, and impose the respective sanctions.” According to the Inter-American Court of Human Rights, the state has the obligation to “seriously investigate, by any means available to it, the violations committed within the scope of its jurisdiction, with a view to identifying those responsible, imposing the pertinent sanctions, and ensuring adequate reparations for the victim.”
- On January 25, acting through their attorneys, Charles’ next-of-kin, his father Jean-Charles Déus Charles and wife Mikelsie Jusma, filed a complaint with the competent authority, the Chief Prosecutor (Commissaire du Gouvernement) at the Tribunal of First Instance of Port-au-Prince (attached as Exhibit B). In their complaint, they laid out the facts surrounding their son’s death, requested the opening of criminal proceedings against the responsible state officials, and declared themselves civil parties to the proceedings in conformity with Article 50 CIC, announcing that reparations would be claimed in the course of the proceedings. They further requested that an autopsy of Charles’ body be performed without delay. The family renewed this request on March 14, 2005 in a declaration before the Huissier du Parquet (Office of the Commissaire du Gouvernement) of Port-au-Prince, after two months of apathy on the part of the judiciary.
- According to Article 13 CIC, the Commissaire du Gouvernement has the duty to investigate and prosecute all crimes and offenses except for minor offenses under the jurisdiction of the tribunaux de simple police. Article 51 CIC provides that a complaint filed with the Commissaire du Gouvernement must be submitted to an investigating judge (juge d’instruction) along with the Commissaire’s findings. Despite these provisions, no formal investigation has been launched to date, the criminal complaint has not been deferred to any investigating judge, nor have there been any other efforts on the part of the Haitian executive and judiciary to cast light onto the circumstances of Charles’ death. No autopsy of the body has been performed, although formally requested by the family in their complaint of January 25, 2005 and again in their formal request of March 14, 2005 to the Commissaire du Gouvernement. Instead, Charles’ body lay decaying in the state hospital morgue for three months, awaiting an autopsy order, and the family was in the end presented with a morgue bill equivalent to 800 US Dollars, which is about twice the per-capita GDP of Haiti.
- The refusal of the Interim Government of Haiti to prosecute those responsible for the death of Jimmy Charles and to compensate his family for their loss presents a serious violation of the judicial guarantees and the right to judicial recourse under the Convention.
B. Violations by the Republic of Brazil
- The UN Stabilization Mission in Haiti, MINUSTAH, was established by Security Council Resolution 1542 and began its mission on June 1, 2004. The Republic of Brazil has assumed a leadership role with regard to MINUSTAH’s military component and taken on its military high command. At the time of Charles’ killing, MINUSTAH’s mandate included, inter alia, to ensure a secure and stable environment, assist in monitoring, restructuring and reforming the HNP, assist with the restoration and maintenance of the rule of law, public safety and public order in Haiti through the provision inter alia of operational support to the Haitian National Police, and to monitor as well as support efforts to promote and protect human rights.
a. Although acting under UN flag, the Republic of Brazil remains responsible for the acts and omissions of its force commanders and military personal
- The United Nations Organization as a legal entity is not a party to the American Convention on Human Rights and is thus not subject to the external oversight and jurisdiction of the IACHR and the Inter-American Court of Human Rights.
- In the absence of a functioning, independent human rights oversight mechanism – other than mere ad-hoc arrangements – to hold the United Nations accountable for human rights violations by peace-keeping troops and other UN personal and to provide just redress and compensation to the victims, the only remaining avenue for victims to enforce compliance with human rights standards in peacekeeping missions is to invoke the responsibility of the contributing states for their actions and policies under the UN umbrella and for their troops and personal.
- Under the Status-of-Forces Agreement (SOFA) between the UN and the receiving state of a peace-keeping mission, UN-peacekeepers regularly enjoy immunity from criminal prosecution in the host state. In return, SOFAs provide that peacekeeper-contributing states should exercise jurisdiction over their nationals with respect to violations committed by them while serving on UN peacekeeping missions. The system of immunities thus follows the general principle that the contributing state is itself responsible for monitoring and enforcing compliance of its troops with international human rights.
- The principle of state responsibility for the actions of peace-keeping troops has also been confirmed by the Human Rights Committee with respect to the provisions of the International Covenant on Civil and Political Rights (ICCPR): In its concluding observations on the fourth periodic report of Belgium, for example, the Committee reminded the state party that “the Covenant automatically applies when it exercises power or effective control over a person outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent assigned to an international peacekeeping or peace enforcement operation.” The Committee urged that “The State party should respect the safeguards established by the Covenant, not only in its territory but also when it exercises its jurisdiction abroad, as for example in the case of peacekeeping missions or NATO military missions, and should train the members of such missions appropriately.”
- By acting under the flag of the United Nations, State parties to the Inter-American system thus cannot waive their obligations under the American Convention on Human Rights.
b. Brazil’s state responsibility also applies extra-territorially
- OAS member states, while operating on the territory of another member state, remain bound by the provisions of the relevant human rights treaties of the Inter-American human rights system.
- According to Article 1 (1) of the Convention, States Parties “undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.”
- In the Coard case, the Inter-American Commission on Human Rights stated:
“While the extraterritorial application of the American Declaration has not been placed at issue by the parties, the Commission finds it pertinent to note that, under certain circumstances, the exercise of its jurisdiction over acts with an extraterritorial locus will not only be consistent with but required by the norms which pertain. The fundamental rights of the individual are proclaimed in the Americas on the basis of the principles of equality and non-discrimination — “without distinction as to race, nationality, creed or sex.” Given that individual rights inhere simply by virtue of a person’s humanity, each American State is obliged to uphold the protected rights of any person subject to its jurisdiction. While this most commonly refers to persons within a state’s territory, it may, under given circumstances, refer to conduct with an extraterritorial locus where the person concerned is present in the territory of one state, but subject to the control of another state – usually through the acts of the latter’s agents abroad. In principle, the inquiry turns not on the presumed victim’s nationality or presence within a particular geographic area, but on whether, under the specific circumstances, the State observed the rights of a person subject to its authority and control”
- Similarly, the ICCPR Human Rights Committee found with respect to the latter treaty that “jurisdiction” in the meaning of Article 2 ICCPR “does not imply that the State … cannot be held accountable for violations of rights under the Covenant which its agents commit upon the territory of another State … it would be unconscionable to so interpret the responsibility under article 2 of the Covenant as to permit a State party to perpetrate violations of the Covenant on the territory of another State, which violations it could not perpetrate on its own territory.”
- Control over territory is therefore not a prerequisite for “jurisdiction” in the meaning of Article 1 (1) of the Convention. “Control” or “authority” exercised over an individual is sufficient for the Convention’s applicability.
- When arresting Charles and thus depriving him of his physical liberty, Brazilian MINUSTAH soldiers under Brazilian high command exercised a core function of state power and subjected him to their “authority and control” in the most direct and physical meaning of the words. In addition to the general duties under MINUSTAH’s mandate to monitor and protect human rights, this particular situation of authority and control over Charles created a particular responsibility of MINUSTAH and Brazil to protect his human rights. This responsibility, once taken on, did not simply cede again once Charles was handed over to the Haitian Police. In particular, the duty to protect Charles’ life precluded exposing him to the well-known and imminent risk of becoming the victim of an extra-judicial execution (see below).
c. Rights violated
- The Republic of Brazil violated Article 4, 5 and 7 of the Convention.
(1) Right to life (Article 4)
- MINUSTAH’s Brazilian high command under Force Commander Lieutnant-General Augusto Heleno Ribeiro Pereira and the Brazilian unit which carried out the arrest bear responsibility for Jimmy Charles’ death in detention in violation of Article 4 of the Convention:
- Charles’ violent death was a foreseeable consequence of MINUSTAH’s policy of making arrests during military operations and handing over arrested persons to the HNP without sufficient assurances for their life and safety or compliance with minimum guarantees of due process, without any follow-up, and despite knowledge of a practice of extra-judicial executions by members of the police or irregular police forces attached to the commissariats.
- At the time of Charles’ arrest and murder in January 2005, the occurrence of summary executions and disappearances was a known and well-documented fact. Already before January 2005, human rights organizations and reports had publicly denounced cases of extra-judicial killings at the hands of the police or irregular police attachés, among them cases, in which persons were killed after they had first been taken into custody (see the cases described above under V. (A) (a), para. 37). The killings of unarmed prisoners on December 1, 2004 in the National Penitentiary should have further alerted MINUSTAH officials and forces to the grave dangers for detained persons. MINUSTAH’s military high command was thus positively aware at the time of Charles’ arrest that by handing over arrested persons to the HNP, MINUSTAH soldiers were exposing these individuals to a serious risk to their lives. MINUSTAH’s high command was also aware that the risk was aggravated where the arrested person was a Lavalas supporter or – more broadly – a young man from a popular neighborhood such as Fort National.
(2) Freedom from arbitrary arrest and detention (Article 7 (2) and (3))
- The Brazilian peacekeepers who arrested Jimmy Charles had no legal basis to do so, neither under Haitian law, nor under UN Security Council Resolution 1542. Although MINUSTAH’s mandate also allows for the provision of “operational support” to the HNP, it does not give foreign peacekeepers a legal authority to exercise state authority such as carry out arrests without judicial warrant and outside the scope of unambiguous cases of flagrant délit. MINUSTAH’s Brazilian high command thus ordered and carried out an illegal arrest practice, which arbitrarily deprived Charles of his physical liberty in violation of Article 7 (2) and (3) of the Convention.
(3) Right to humane treatment (Article 5)
- MINUSTAH’s Brazilian high command further knew of the cruel, inhuman and degrading conditions of detention prevailing at the Anti-Gang Service cell as well as at the National Penitentiary, where male arrestees are held in preventive detention after initial referral and until further dealings in their case – which can mean indefinitely. United Nations Development Program official Regis Charron had warned authorities two weeks before the December 1 prison massacre at the National Penitentiary that prison conditions were so appalling that “at one point the system will break down, you will have disruptions, riots, problems.” By handing over Charles to a system of detention that exposes prisoners to cruel, inhuman and degrading treatment, MINUSTAH and Brazil became responsible for this treatment.
(4) Rights to a prompt judicial hearing
- MINUSTAH’s Brazilian command was finally aware that persons detained by the Haitian authorities were routinely deprived of their right to a prompt hearing before an investigating judge who would examine the legality of their arrest and detention, and of their right to trial within reasonable time in violation of Article 7 (5) of the Convention. The act of handing Charles over to an abusive and non-functioning judicial system amounts to complicity in resulting human rights violations.
(5) Brazil bears responsibility for subsequent violations by the HNP
- As has been argued before, Charles’ arrest by Brazilian MINUSTAH soldiers created a particular responsibility of MINUSTAH and Brazil to protect his right to life, to human treatment, and right to a prompt judicial hearing on the legality of his detention and to trial within reasonable time. This special responsibility did not end at the moment MINUSTAH handed Charles over to the HNP. On the contrary, by contributing to his precarious and defenseless situation at the hands of the HNP and by failing to follow up on Charles’ fate and continue to monitor his case and whereabouts, MINUSTAH and Brazil became complicit in the subsequent rights violations committed by the HNP.
VI. LEGAL REMEDIES TO REDRESS THE CONSEQUENCES OF THE FACTS DENOUNCED
A. Domestic remedies against Haitian state agents
- As stated before, the deceased’s father and the deceased’s wife, Jean-Charles Déus Charles and Mikelsie Jusma, filed a criminal complaint before the Prosecutor’s Office (Parquet) of Port-au-Prince on 25 January 25, 2005, in which they declared themselves civil party to the criminal proceedings, claimed reparations and urged that an autopsy of Charles’ body be performed.
a. There has been an unwarranted delay in the conduct of criminal proceedings
- To date, not a single step has been undertaken by the Haitian authorities and the judiciary to investigate the case and proceed with the family’s legal complaint according to the law, especially assign an investigating judge to the case. This constitutes an unwarranted delay in the conduct of domestic proceedings.
- The introduction of separate civil proceedings for damages is not an adequate remedy
- Charles’ next-of kin were not required to introduce separate civil proceedings for damages in order to meet the condition of exhaustion of domestic remedies. A separate civil action for monetary compensation does not constitute an appropriate remedy in the case at issue. Jean-Charles Déus Charles’ and Mikelsie Jusma’s primary demand is that the murderers of their son and husband be brought to justice, a goal that cannot be pursued before a civil courts.
- In the case of Santos Mendivelso Coconubo against Colombia, the Inter-American Commission for Human Rights held that “in the comparative law of the OAS member States, (..) the decision to try individuals on criminal charges generally includes or precedes the decision on reparation for the victims or next-of-kin who participate in the proceedings as a civil party. Therefore, the criminal process, which would constitute the appropriate remedy in cases such as this, offers the possibility of obtaining monetary compensation, in addition to seeking justice through trial and punishment of the persons responsible. One cannot demand that petitioners exhaust a remedy whose sole purpose is to provide compensation when there is another type of process which, in addition to offering the possibility of obtaining compensation, entails the investigation and sanctions that the law requires in a case such as this.”
- Haitian law, which originates from French law, equally provides for the compensation of the victim of a crime or his or her next-of-kin in the course of criminal proceedings (Article 3 CIC) and accords an active standing to the Partie Civile (Article 50 CIC). By submitting a criminal complaint and constituting themselves Partie Civile, Jean-Charles Déus Charles and Mikelsie Jusma thus chose the appropriate domestic legal remedy, given that they claim not only reparations, but that the perpetrators of the crime be punished under the law.
c. The Haitian justice system is ineffective and does not afford due process of law for the protection of the rights that have been violated.
- According to Article 46 (2) (a) of the Convention, the requirement to exhaust domestic remedies shall not be applicable when “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.” The Inter-American Court of Human Rights has applied the due process exception in cases where government practice or policy impedes petitioners from invoking domestic remedies. In Velásquez Rodríguez, the Court reasoned: “if there is proof of the existence of a practice or policy ordered or tolerated by the government, the effect of which is to impede certain persons from invoking internal remedies . . . resort to those remedies becomes a senseless formality. The exceptions of Article 46(2) would be fully applicable in those situations and would discharge the obligation to exhaust internal remedies since they cannot fulfill their objective in that case.”
- The Haitian judiciary is dysfunctional and does not afford due process of law to its citizens. Judges lack resources and proper training and are subject to interference by the executive and intimidation. The government has retaliated against courageous judges willing to rule against the government in politically sensitive cases. Investigating judges (juges d’instruction) fear reprisals if they investigate crimes committed by the police. In July, 2004, the Haitian Judges’ Association, ANAMAH, issued a press release deploring the increase in the politicization of justice over the previous four months. On October 14, 2005, Thierry Fagart, MINUSTAH’s top human rights official called Haiti’s human rights record a “catastrophe,” and singled out arbitrary arrests, illegal detentions and police killings.
- Despite serious and widespread allegations of extra-judicial executions, impunity under the IGH is rampant and victims and their family are regularly denied judicial redress. In its latest Report of July 28, 2005, Amnesty International observes:
“Extrajudicial executions continue and are routinely denied by the police….. Amnesty International believes that there is a lack of political will, resources and mechanisms to establish whether police officers are responsible for human rights violations. An independent commission to investigate police abuses has not been established despite commitments from the interim Prime Minister, Gérard Latortue. Prosecutions for extrajudicial killings, ill-treatment and other human rights abuses remain notional. Investigations more often than not fail to establish who the suspected perpetrator was and do not conform to international standards. The scenes of shootings are not protected; forensic and ballistics evidence is contaminated, removed or disappears. Victims of firearms are normally brought to the Haitian State University Hospital (Hôpital de l’Université d’État d’Haïti, HUEH) morgue but autopsy reports are non-existent. Some parents of victims refrain from going to the morgue for fear of reprisals or because they cannot afford to pay the sum needed to take the corpse away for a proper burial.”
The assassination of Jimmy Charles, the subsequent failure to investigate and collect forensic evidence, and the economic hardships for his family who were faced with a morgue bill far beyond their means, clearly fit into the described pattern.
- There is no avenue to justice within the Haitian domestic system for Charles’ relatives Jean-Charles Déus Charles and Mikelsie Jusma. The requirement to exhaust domestic remedies is inapplicable according to Article 46 (2) of the Convention.
- Domestic Remedies against the Republic of Brazil and its state agents
- In January, MINUSTAH’s spokesperson Damian Onsès Cardona rejected all responsibility for the death of Charles and other persons arrested by UN peace-keepers and subsequently handed over to the Haitian National Police. He declared that the only authorities authorized to follow up on arrests were the Haitian authorities. It therefore cannot be expected that either MINUSTAH or Brazil will undertake any voluntary steps to compensate the family of Jimmy Charles and hold its agents accountable for having played a causal and complicit role in the sequence of events that led to his death in custody.
- Jean-Charles Déus Charles and Mikelsie Jusma directed their criminal complaint of January 25, 2005 not only against the direct perpetrators and the leadership of the HNP and the Haitian judiciary. They also explicitly invoked the responsibility of the MINUSTAH soldiers who arrested Charles and the command responsibility of Lieutnant-General Augusto Heleno Ribeiro Pereira. Nevertheless, no action has been taken on the side of the Haitian Judiciary to investigate and proceed against MINUSTAH’s leadership and personnel. MINUSTAH and its personnel enjoy immunity from criminal prosecution and civil claims under Haitian Law, based on Article 105 UN Charter, the Convention on the Privileges and Immunities of the United Nations of 13 February 1946 and the Status of Forces Agreement between the United Nations and the Transitional Government of Haiti of July 9, 2004. No steps have been undertaken so far in view of lifting these immunities in the case of Charles’ killing.
- A civil action for damages against the Republic of Brazil before Haitian courts is likewise illusionary, given the dire state of the Haitian justice system and the principle of state immunity in international law.
- Within Haitian jurisdiction, Jean-Charles Déus Charles and Mikelsie Jusma therefore have no domestic legal remedy available to invoke the responsibility of the Brazilian MINUSTAH command and its peacekeepers.
- Charles’ family, which struggles to make a living, likewise cannot be reasonably expected to file and sustain a case before a Brazilian court, especially given that the chances of winning the case and obtaining any form of redress are likely to be minimal.
VII. INDICATE WHETHER THE VICTIM’S LIFE, INTEGRITY OR HEALTH IS IN JEOPARDY
- Charles’ family has meanwhile left the area of Fort National, as they judged staying there too dangerous. Although they since have not experienced any direct threats, it cannot be excluded that their life and bodily integrity is at risk for stepping forward and denouncing their son’s murder, first before the Commissaire du Gouvernement, and now before the Inter-American Commission on Human Rights. Menaces and reprisals against family members of killed persons who dare to speak out are frequent, such as in the case of community organizer and journalist Abdias Jean, assassinated by policemen on January 14, in Village de Dieu, whose mother’s and sister’s house was looted shortly after they had denounced his murder before the Haitian media.
VIII. INDICATE WHETHER THE CLAIM CONTAINED IN THE PETITION HAS BEEN FILED WITH THE UNITED NATIONS HUMAN RIGHTS COMMITTEE OR ANY OTHER INTERNATIONAL ORGANIZATION
Mario Joseph, Avocat
Brian Concannon Jr., Esq.
Date: January 18, 2006
See for example International Crisis Group (ICG), “A new chance for Haiti?”, 18 November 2004, p. 15; Amnesty International, “Haiti: Amnesty International calls on the transitional government to set up an independent commission of enquiry into summary executions attributed to members of the Haitian National Police”, 11 November, 2004, AI Index: AMR 36/060/2004; ICG, “Spoiling Security in Haiti”, 31 May 2005, p. 10-12; Amnesty International, “Disarmament Delayed, Justice Denied”, 28 July, 2005, AI Index: AMR 36/005/2005, p. 15; Center for the Studies of Human Rights – University of Miami Law School, “Haiti Human Rights Investigation: November 11-21, 2004”, January 14, 2005, p. 13-14 and 49-50; Harvard Law Students Advocates for Human Rights and Centro de Justiça Global, “Keeping the Peace in Haiti? – An Assessment of the United Nations Stabilization Mission in Haiti”, March 2005, p. 30-32.
Amnesty International, “Breaking the cycle of violence: A last chance for Haiti?”, 21 June 2004, AI Index: AMR 36/038/2004, p. 25; Institute for Justice and Democracy in Haiti, “Human Rights in Haiti, February – May 2004”, http://www.ijdh.org/articles/article_ijdh-human-rights-violations.html.
See Amnesty International, ibid., “Disarmament Delayed, Justice Denied”, 28 July, 2005, AI Index: AMR 36/005/2005, p. 15, Center for the Studies of Human Rights – University of Miami Law School, “Haiti Human Rights Investigation: November 11-21, 2004”, January 14, 2005, p. 13-14.
See the description of the Anti-Gang unit in: Center for the Studies of Human Rights – University of Miami Law School, “Haiti Human Rights Investigation: November 11-21, 2004”, January 14, 2005, p. 25.
The lack of external oversight and accountability for human rights violations by UN peace-keepers or by UN personal within the scope of broadly-mandated administrative missions has recently been identified as a lacuna in international law. See for example Jennifer Murray, “Who will police the peacekeepers? The Failure to establish Accountability for the Participation of United Nations Civilian Police in the Trafficking of Women in Post-Conflict Bosnia and Herzegovina”, 34 Colum. Human Rights L. Rev. 475 (2003); Carla Bongiorno, “A Culture of Impunity: Applying International Human Rights Law to the United Nations in East Timor”, 33 Colum. Human Rights L. Rev. 623 (2002); Elizabeth Abraham, “Sins of the Savior: Holding the United Nations Accountable to International Human Rights Standards for Executive Order Detentions in its Mission in Kosovo”, 52 Am. U.L. Rev. 1291 (2003) .
ibid. Already in its earlier observations on the third periodic report of the Netherlands, the Committee had expressed its concern that “six years after the alleged involvement of members of the State party’s peacekeeping forces in the events surrounding the fall of Srebrenica, Bosnia and Herzegovina, in July 1995, the responsibility of the persons concerned has yet to be publicly and finally determined. The Committee considers that in respect of an event of such gravity it is of particular importance that issues relating to the State party’s obligation to ensure the right to life be resolved in an expeditious and comprehensive manner (articles 2 and 6 of the Covenant).” This reasoning clearly indicates that the Committee invokes the responsibility of the state party under the Covenant for the acts of its soldiers and military commanders in UN peace-keeping missions.
Sergio Ruben Lopez Burgos v. Uruguay, Communication No. R.12/52, Hum. Rgts. Comm., Supp. No. 40, at 176, para. 12.3, U.N. Doc. A/36/40 (1981); Lilian Celiberti de Casariego v. Uruguay, Communication No. R.13/56, Hum. Rgts. Comm., Supp No. 40, at 185, para. 10.3, U.N. Doc. A/36/40 (1981); see also Ralph Wilde, ibid., p. 790.
See for example International Crisis Group “A new chance for Haiti?”, 18 November 2004, p. 15; Amnesty International, “Haiti: Amnesty International calls on the transitional government to set up an independent commission of enquiry into summary executions attributed to members of the Haitian National Police”, 11 November 2004, AI Index: AMR 36/060/2004.
Institute for Justice and Democracy in Haiti, “Report on December 1 Massacre in the Haitian National Penitentiary”, December 20, 2004, p. 3; Toronto Star, “Massacre in the `Titanic,’” December 20, 2004.
ICG Report “Spoiling Security in Haiti”, 31 May 2005, p.16; Report of the Security Council April Mission to Haiti, 6 May 2005 (S/2005/302), para. 52; see also IACHR Press Release of September 7, 2004, after the conclusion of its visit to Haiti.
In November 2004, for example, Judge Jean Sénat Fleury, ordered the liberation of Rev. Gérard Jean-Juste, a Catholic Priest and prominent political dissident. In December 2004, Judge Brédy Fabien, ordered the release of six other political prisoners, 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 Court of First Instance to immediately take all cases from Judges Fleury and Fabien in clear violation of the principle of judicial independence enshrined in the Haitian Constitution.