Institute for Justice and Democracy in Haiti

Analysis of Ordonnances in Rev. Gérard Jean-Juste Cases


To:  Rev. Gérard Jean-Juste Case File

From:  Mario Joseph, Bureau des Avocats Internationaux
Brian Concannon Jr., Institute for Justice & Democracy in Haiti

Date:  January 22, 2006

Re:  Analysis of Ordonnances in Rev. Gérard Jean-Juste Cases
On January 19, 2005, the Commissaire du Gouvernement (public prosecutor) released two ordonnances thet Juge d’Instruction Jean Pérès Paul had issued in the cases against Fr. Gérard Jean-Juste. The first, regarding Fr. Jean-Juste’s October 2004 arrest for allegedly killing two police officers and plotting against state security, dismisses all charges for lack of evidence. The second ordonnance, regarding Fr. Jean-Juste’s July 21 arrest, dismisses all charges regarding the original stated justification for the arrest, the murder of Jacques Roche. It does require Fr. Jean-Juste to stand trial for association de malfaiteurs, a vague conspiracy charge, and for possession of illegal weapons.
I.  Ordonnance Relative to October 2004 Arrest
The ordonnance relative to the October 2004 arrest (Ordonnance I), is dated December 7, 2005, but was not released until January 19, 2006. Ordonnance I incorporates the findings of the Assistant Commissaire du Gouvernement Joseph Claudet Lamour, dated October 21, 2005, and adopts the Prosecutor’s recommendation that all charges be dismissed against Fr. Jean-Juste.
The investigation of this case took 15 months from arrest to the delivery of the ordonnance. Fr. Jean-Juste was imprisoned in the case for seven weeks in 2004. The investigation consisted of:

  1. one search of  Fr. Jean-Juste’s domicile, in September 2005;
  2. questioning of Fr. Jean-Juste four times;
  3. questioning of four witnesses;
  4. one letter from the police to the prosecutor;
  5. one letter to the police; and
  6. two copies of one newspaper article.

Ordonnance I contains absolutely no indication of wrongdoing by Fr. Jean-Juste, not even an unsubstantiated allegation.


II.  Ordonnance Relative to July 2005 Arrest
The ordonnance relative to the July, 2005 arrest (Ordonnance II), is dated January 12, 2006, but was not released until January 19, 2006. Ordonnance II deals with Fr. Jean-Juste and a co-defendant, Roger Etienne.  It incorporates the findings of the Assistant Commissaire du Gouvernement Joseph Claudet Lamour, dated November 14, 2005, and adopts the Prosecutor’s recommendation that all charges relative to the kidnapping and killing of Jacques Roche be dismissed, but that Fr. Jean-Juste stand trial for possession of illegal weapons and for association de malfaiteurs (criminal conspiracy). Ordonnance II notes that no link has been established between Fr. Jean-Juste and Mr. Etienne, and that Mr. Etienne’s case is the subject of a separate inquiry.
The investigation of this case took almost six months from arrest to the delivery of the ordonnance, during which time Fr. Jean-Juste was imprisoned. The investigation consisted of:

  1. questioning of Fr. Jean-Juste four times;
  2. questioning of three witnesses;
  3. questioning of codefendant Etienne twice; and
  4. review of nine letters and one “information note.”

Ordonnance II contains absolutely no indication that Fr. Jean-Juste was involved in Jacques Roche’s kidnapping or murder, not even an unsubstantiated allegation. The other two charges are based on the facts that a) Fr. Jean-Juste was provided five security guards when he worked at the National Palace under Haiti’s Constitutional authorities; b) the government provided the five security guards a total of three pistols and two shotguns; c) the security guards have not returned those weapons since Haiti’s February 2004 coup d’etat; and d) Fr. Jean-Juste exercised his right to remain silent when asked to identify the security guards.
1.  Association de Malfaiteurs Charge
Association de malfaiteurs is a vague charge under Haiti’s Penal Code, but the Code does require that:

  1. an association is formed targetting people or property; and
  2. there is an organization of bands or correspondence between the bands and their leaders, or agreements for the accounting, distribution or sharing of the fruits of criminal acts.

The association de malfaiteurs charge is entirely based on Fr. Jean-Juste’s failure to name the five security agents or to turn over the guns that were given to his security guards. Ordonnance II does not even contain an allegation that Fr. Jean-Juste or any of his security guards committed or attempted to commit any crime against people or persons, alone or collectively. The Ordonnance does not allege any organizing activity, any correspondence, any agreements whatsoever or any accounting, distribution or sharing of the fruits of criminal acts. To the contrary, Ordonnnance I quotes prosecutor Lamour’s conclusion that “the investigation does not reveal the participation of Fr. Gerard Jean-Juste in any criminal enterprise” (emphasis supplied).
Fr. Jean-Juste’s silence cannot be used against him in court. Article 46 of Haiti’s Constitution prohibits forcing any criminal defendant to testify against himself.
2.  Illegal Weapons Charge
The illegal weapons charges are based entirely on Judge Paul’s findings that a) Fr. Jean-Juste admitted that he had possession of the five weapons in question; b) without the permission of the current authorities; and c) the weapons belong to the National Palace. Ordonnance II does not establish, or even allege, that Fr. Jean-Juste or his security guards do not have a valid license for the weapons. It does not establish, or even allege, that the security guards’ employment has been terminated by any Haitian government, constitutional or not, or that any Haitian government official has requested that the guns be returned. Ordonnance II does not point to a legal obligation for the security guards to return their weapons.

  1. Procedural Matters

The Juge d’Instruction is often called an “investigating magistrate” in English. The magistrate has some roles that the Anglo-American system would call prosecutorial, including pre-trial investigation, and some that it would call judicial, such as issuing warrants. Ordonnances are the first formal levying of charges against a defendant, and are similar to the American system’s indictment. The ordonnance determines what the charges are, and what court will have jurisdiction over the case. The file is then passed on to the prosecutor, who presents the case to the appropriate court.
Ordonnance II referred the conspiracy and weapons charges for trial by a criminel court, which is a single trial court judge, sitting without a jury. Although Judge Paul is a trial court judge, juges d’instruction may not try cases on which they conducted the pre-trial investigation.
Fr. Jean-Juste’s lawyer, Mario Joseph, filed an appeal of Ordonnance II  on January 20.  According to the Haitian procedural code, the prosecutor must submit the appeal, with his position on it, to the Court of Appeals within 48 hours. The appeals court is then required to hear the matter within a week. Even taking into account the Haitian justice system’s ordinary delays, the Court of Appeals should decide the appeal within three weeks.
Fr. Jean-Juste was diagnosed with leukemia in December, 2005. The diagnosis was confirmed by an independent medical exam arranged by the Haitian and U.S. governments on January 10, 2006. The doctors report that the cancer itself could be fatal, or it could compromise Fr. Jean-Juste’s immune system enough that one of the many diseases prevalent in Haitian prisons could kill him. Doctors have also said that the cancer cannot be adequately treated in Haiti.
Fr. Jean-Juste’s lawyer filed two motions before Judge Paul, seeking provisional release for medical treatment. Judge Paul did not, apparently, rule on either motion. The case is now out of his hands, and unless the case is remanded back to him on appeal, he will not have jurisdiction to rule on Fr. Jean-Juste’s release. The Commissaire du Gouvernement, however, does have the right to order Fr. Jean-Juste’s provisional release at any time. In fact, the prosecutor has an obligation to do ensure that Fr. Jean-Juste receives adequate medical care, pursuant to his responsibility to oversee the prison system. Releases for medical treatment are routine in Haiti.
Fr. Jean-Juste was released on his own recognizance in November, 2004. Although he traveled overseas between that release and the July 21, 2005 arrest, Fr. Jean-Juste returned every time, and voluntarily appeared before the police or the judge every time he was summoned.

“Art. 224 – Toute association de malfaiteurs envers les personnes ou les propriétés, est un crime contre la paix publique.Art. 225 – Ce crime existe par le seul fait d’organisation de bandes ou de correspondance entre elles et leurs chefs ou commandants, ou de conventions tendant à rendre compte ou à faire distribution ou partage du produit des méfaits. »

«Nul ne peut être obligé, en matière criminelle, correctionnelle ou de simple police, à témoigner contre lui-même … »

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