Institute for Justice and Democracy in Haiti

Analysis of Appeals Hearing for Annette Auguste and Others Accused in December 5, 2003 Violence

Jun 20, 2006

Summary of Appeals Court hearing of June 14, 2006, on behalf of Annette Auguste (S�
Ann), Paul Raymond and Yvon Antoine

Maren Dobberthien
Bureau des Avocats Internationaux
Port-au-Prince, Haiti
June 20, 2006
On Wednesday, 14 June 2006, Annette Auguste (S� Ann), Paul Raymond and Yvon Antoine
(Zap Zap) appeared before the Court of Appeals of Port-au-Prince for a hearing of their appeal
against the April ordonnance de cl�ture by investigating judge Mimose Janvier in the case
concerning their alleged implication in the violent incidents of 5 December 2003 at the Faculty of
Humanities of Haiti�s State University in Port-au-Prince. The complainants in the dossier had
reported that on the said date, students holding a pro-opposition demonstration against the
government of President Jean Bertrand Aristide had been attacked by a group of pro-government
counter-demonstrators. Several people sustained injuries during the incident and doors, windows
and furniture in the faculty building were damaged (for a detailed analysis of the ordonnance see
IJDH-article of April 21, 2006 at http://www.ijdh.org/articles/article_recent_news_4-24-06.html).
The appeals hearing before a three-member bench took place in a packed courtroom and with a
strong media presence. The defense council was composed of Me. Mario Joseph, Me. Jean-
Fr�d�rick B�n�che and Me. Ax�ne Joseph. The Commissaire du Gouvernement (prosecutor) at
the Appeals Court was represented by assistant commissaire Florence Mathieu who was
appointed to the post by the Interim Government earlier this year. The Commissaire du
Gouvernement to the Appeals Court is the representative of the Executive Branch in the appeals
proceedings. In his or her request (r�quisitoire) to the Court, the Commissaire du Gouvernement
is expected to provide an assessment of the admissibility of the appeal and the arguments put
forth by the defendants. Given that pre-trial investigations in the Haitian system are conducted by
an investigating judge and not, as in the Anglo-Saxon system, by the prosecutor�s office, the
representative of the government is not automatically opposed to the defense, but may equally
request that the judge�s ordonnance be rescinded on the grounds that the law and the defendants�
rights were not respected by the investigating judge.1 However, in her written requisitoire prior to
the appeals hearing, Commissaire Mathieu had neither argued on the admissibility nor on the
points of appeal put forth by the defendants, but had merely repeated the wording of the
ordonnance stating that Annette Auguste, Paul Raymond and Yvon Antoine must stand trial
before a criminal tribunal.
The appeals hearing started with a discussion on whether the appeals of Paul Raymond and Yvon
Antoine against the judicial ordonnance had been submitted on time and could be heard by the
Court. Subsitute Commissaire du Gouvernement Mathieu claimed that the appeals writs on behalf
of Paul Raymond and Yvon Antoine were not part of the file. The defense was however able to
present the copies of the appeals writs showing a confirmation of receipt, thus proving that
although their appeals had not been filed at the same time as Annette Auguste�s appeal, they had
1 For example, in the appeals proceedings against the ordonnance de cloture in the La Sci�rie case, charging former
Prime Minister Neptune and others, the Commissaire du Gouvernement of the Gona�ives Appeals Court had
requested the Court to declare well-founded most of the appellants arguments and thus to annul the ordonnance and
to replace it by a new ordonnance stating that there are not charges against the defendants.
still been filed within the legal delay and in due form by assignation to the Parquet (Prosecutor�s
Office) of the First Instance Tribunal (Trial Court), which had to forward them within 48 hours to
the Commissaire du Gouvernement at the Court of Appeals. The Court awarded time for the
clerks to search for the appeals writs and it turned out that they had indeed been forwarded to the
Court and placed in the case file, although they did not figure in the document inventory. It was
thus established that all three appeals had been submitted in time and in due form. The Court
consequently ruled that it would hear the appeals of all three defendants who were present in
court. The Appeals Court however refused to hear the appeals and the arguments put forth by the
defense on behalf of Ren� Civil, Ricardo Etienne and Claudette Estimable, who equally filed an
appeal within the legal delay and were presented in court by BAI�s lawyers. The Court based its
rejection to hear their appeals on the grounds that they had been summoned by the Court to
appear at the hearing, but had not presented themselves (the three are not in custody). This refusal
to hear the appeal of those absent is not supported by the law and constitutes a violation of their
right to defense as their lawyers were present to present their appeals arguments on their behalf.
Next, the defense counsel read out the appeals arguments for Annette Auguste, Paul Raymond
and Yvon Antoine. On behalf of Ms. Auguste, whom the ordonnance charges with complicity in
the offenses of association de malfaiteurs (criminal conspiracy), assault and battery and
destruction of property, the defense noted that she was arrested illegally, without a warrant, in the
middle of the night by US marines on the night of May 9 to 10, which made her detention illegal.
Second, the defense argued that the ordonnance lacks an adequate basis for criminal charges, and
does neither establish with the necessary precision the elements of cited offenses of either direct
participation or complicity. The defense noted that Article 45 of the Haitian Penal Code requires
a specific act of assistance or abetment, which facilitated or provoked the offense.
The defense noted that the ordonnance bases all charges against Annette Auguste on merely two
allegations: That she was responsible for all demonstrations by the Lavalas Party and that �some
persons� (without naming them) had pointed at her as the one who had allegedly distributed
lashes to government supporters in the context of a different incident on Place d�Italie, a year
earlier, on December 3, 2002. On the first allegation, the defense argued that the person
responsible for a demonstration is the one who notifies it to the Police according to the Decree of
23 July 1987 and that the investigating judge had not established that Annette Auguste had signed
such a notification or had in any other capacity prepared or participated in the demonstration of 5
December 2003. On the second allegation, the defense denounced that there was no connection
between the alleged events of December 3, 2002, and those of December 5, 2005, and that the
ordonnance grossly violates the rules on connectivity of offenses as laid down in Article 113 of
the Haitian Code on Criminal Procedure.
On behalf of Paul Raymond, equally charged with complicity in the alleged offenses, the defense
argued that the ordonnance, apart from not establishing the elements of the primary offenses,
does not determine Paul Raymond�s act of complicity in these offenses, but had merely claimed
that he was the leader of a popular organization (organization populaire), that he had made
earlier declarations considered inflammatory by some and that he was among those who had
launched the operation �Etau Bouclier� against the then opposition movement. The defense
observed that the ordonnance neither explains what the judge implies by vaguely referring to the
so-called �Operation Etau Bouclier�, nor shows the required link between Paul Raymond�s
earlier declarations and the events of 5 December 2003 or his connection with any of the alleged
perpetrators (the ordonnance does never even allege that he was himself at the scene of the
incident).
On behalf of Yvon Antoine, whom the ordonnance charges as co-author of the alleged offenses
(in contrast to Annette Auguste and Paul Raymond who were charged as accomplices), the
defense challenged that the investigating judge had based her decision to charge on the allegation
that Yvon Antoine had made seemingly contradictory declarations during different interrogations,
but had neither showed why they were contradictory, nor had respected the principle governing
the burden of proof in penal law according to which the defendant does not need to prove his
innocence and may even make contradictory statements in his defense, which alone cannot not
inculpate him. The defense further argued that the ordonnance does not specify any of the alleged
victims or their injuries, except for State University Rector Jean Marie Paquiot, and that neither
he nor any other witness interrogated by the investigating judge had been able to identify Yvon
Antoine as their attacker or as having been present at the scene of the incident. (The ordonnance
merely states that Yvon Antoine had been accused by �public clamor� (la clameur public) of
having beaten students and broken the Rector�s legs). The defense also observed that the
ordonnance does not establish the organizational elements of the crime of criminal conspiracy
(association de malfaiteur) with respect to Yvon Antoine and replaces these elements with a
vague argumentation based on la clameur publique (for further analysis on the necessary
elements of the association de malfaiteurs charge see see IJDH-article of April 21, 2006 –
http://www.ijdh.org/articles/article_recent_news_4-24-06.html).
After the presentation of the appeals motivation by the defense council, the court then allowed
the three defendants to speak. All three made short, clear and well-founded statements. After each
statement, the audience applauded and many people called out �Justice, Justice!�. S� Ann spoke
in French and declared: �I have been condemned before being judged (�J�ai �t� condamn�e avant
d��tre jug�e�). I request my immediate release because I am innocent.� She challenged that if
anybody in the courtroom had ever been beaten or aggressed by her, they should stand up and
raise their finger. Also, if anybody in the courtroom had seen her at the scene on December 5,
they should equally stand up and raise their finger.
Paul Raymond spoke next. He particularly emphasized that between November 30 and December
7, 2003, he had traveled outside the country and thus could not possibly have been present at the
December 5 incident. He observed that his passport could prove his travel, but that his passport
had been seized by the Haitian police at the time of his deportation and arrest and had never been
released.2
Yvon Antoine (alias Zap Zap) described his illegal arrest during which the police merely showed
him the photocopy of a warrant concerning a different person called �Papi Joe�. He also
mentioned that the police had solicited a large sum of money for his release (which he refused to
pay). He further reminded the court of the fact that during the two years of his pre-trial detention,
2 By request to the investigating judge of 21 November 2005, BAI had asked judge Mimose to address an order to
the immigration authorities to locate Paul Raymond�s passport and communicate it to the dossier. However, the
judge undertook not steps to comply with this request nor any other reasonable measures to retrieve the passport,
although it had been identified as a piece of evidence in the dossier and requesting the passport was part of the
judge�s duty to investigate.
he had never been confronted with University Rector Pierre-Marie Paquiot, and that the latter had
never identified him in person. He finally drew attention to his voluntary return to the National
Penitentiary after the forced mass prison escape of February 19th, 2005. He declared that he
returned because he believed that he would find justice. �But I had to learn that for the poor, for
people like me, Yvon Antoine, there is no justice.�
After the defendants had spoken, substitute Commissaire du Gouvernement Florence Mathieu
made a brief statement where she argued that all three defendants had been denounced by
witnesses (without specifying who these witnesses were) and that, in addition, they had been
denounced by �la clameur publique�. She seemed unprepared, which became obvious when she
asked the Court to �condemn� the defendants, apparently not being aware that the present hearing
was not an appeals hearing on a judgment, but on an appeal against an ordonnance de renvoi
(which corresponds to the mere indictment in the Anglo-Saxon system). The president of the
Court had to correct her. Although it was her role, the representative of the Commissaire du
Gouvernement did not provide any detailed argument on the points of appeal put forth by the
defense and failed to make a coherent request on how the Court should rule on the appeals. The
defense was given a short time window to respond where it denounced this shortcoming by the
representative of the Government. In their statements, the defense lawyers reminded the judges of
the Court of their obligation to rule according to the law and their conscience. Me. B�n�che of
BAI also stressed again that Paul Raymond�s passport was in the hands of the Haitian state and
that it was unacceptable that, despite a request by Paul Raymond�s lawyers, it had not been
produced to be joined to the dossier as a piece of evidence in favor of Paul Raymond�s defense.
At the end, the defense council reiterated their request for provisional release (�mainlev�e
d��crou�) of the three defendants to which the representative of the Commissaire du
Gouvernement opposed without reasoning. The Court decided that it would not rule on the
mainlev�e requests, but that it would directly render its decision on the merits of the appeal. The
hearing was then closed. The decision on mainlev�e is defined in Article 80 of the Code of
Criminal Procedure as a facultative decision (the judge �can� grant a mainlev�e at any point of
the proceedings) so that the Court did not violate the law by discarding the defense�s request for
mainlev�e.. However, it is regrettable that the Court did not grant a provisional release to the
defendants who all have a fix domicile in Port-au-Prince. There is no indication that they would
flee justice and not present themselves at all stages of the proceedings (Yvon Antoine, for
example, provided an impressive demonstration of his willingness to cooperate with the justice
system by voluntarily turning himself in to the authorities after the prison incident of 19 February
2005 when an armed group stormed the prison and hundreds of prisoners escaped).
During the entire hearing, supporters of the three defendants demonstrated and sang near the
courthouse, accompanied by the traditional music of Yvon Antoine�s group Zap Zap. The police
had blocked the area in front of the Palais de Justice, so demonstrators gathered in the adjoining
street. At the moment when Annette Auguste, Paul Raymond and Yvon Antoine were led out of
the courthouse in handcuffs, demonstrators broke through the police cordon and ran towards the
main gate. Some demonstrators lay on the ground to prevent the prison vehicle from leaving. The
vehicle was thus taken inside the gate to pick up the defendants. Officers from the Haitian
National Police�s CIMO (crowd control) unit barred the demonstrators and the vehicle was able
to leave. Overall, CIMO officers exercised restraint and apparently did not hit the demonstrators.
None of the demonstrators appeared to be armed, and none of them threatened the police. Some
demonstrators ran after the vehicle and further on, some stones were thrown. Three cars parked in
the street were reportedly damaged by stones. But overall, the demonstration ended peacefully.
The Court is expected to issue its decision on the appeals within the next weeks. Under Haitian
law, the decision should have been issued within 30 days of the appeal, which was filed in April

Contact IJDH

Institute for Justice & Democracy In Haiti
15 Newbury Street
Boston, MA 02116

Telephone: (617) 652-0876
General Inquiries: info@ijdh.org
Media Inquiries: media@ijdh.org

Givva
Use Giving Assistant to save money and support Institute for Justice and Democracy in Haiti Inc.