Institute for Justice and Democracy in Haiti

PETITION Inter-American Commission on Human Rights: Bob Molière

PETITION

Inter-American Commission on Human Rights

I.          PETITIONERS

 

  1. Immigration and Human Rights Clinic

Center for Social Justice
Jenny-Brooke Condon, Esq.
Seton Hall University School of Law

  1. One Newark Center, Newark, NJ 07102
  1. Institute for Justice and Democracy in Haiti
    Brian Concannon Jr., Esq.
    P.O. Box 745
    Joseph, OR 97846
    Email: brian@ijdh.org
    Telephone: 541-432-0597

 

  1. Bureau des Avocats Internationaux
    Mario Joseph, Avocat
    B.P. 19048
    Port-au-Prince, Haiti

 

II.        NAME OF THE PERSON OR PERSONS AFFECTED BY THE HUMAN RIGHTS VIOLATIONS

  1. Bob Molière, National Penitentiary, Port-au-Prince, Haiti

 

III.       OAS MEMER STATE AGAINST WHICH THE COMPLAINT IS BROUGHT

  1. The Interim Government of Haiti (hereinafter the “IGH”)

 

IV.       FACTS DENOUNCED

  1. On April 18, 2005, Petitioner Bob Molière was on his way to the street vending stand where he sold refurbished mattresses in Port au Prince, Haiti, when officers from the Haitian National Police (hereinafter “HNP”) arrested him without a warrant.

 

  1. The HNP detained Mr. Molière for one month at the local police commissariat, Delmas 33, where they tortured and interrogated him about his political activities.  The police beat him with their guns on his head, face and back, and forced him to lie on the ground while they stomped on his body.  Mr. Molière was handcuffed for three consecutive days.
  1. Officers questioned him about armed groups allegedly supporting former President Artistide’s political party, Lavalas, and tried to force him to state that Father Jean-Juste, a prominent political dissident and political prisoner, was involved in arms transfers to Cité Soleil in Haiti.

 

  1. During the first week at the commissariat, Mr. Molière was held isolated in a small room and concealed from his family and from the UN Civilian Police assigned to the commissariat.  During that first week, Mr. Molière’s wife repeatedly went to the commissariat in search of her husband, but the police denied holding him.  After about a week, the IGH moved Mr. Molière out of isolation to a cell with other prisoners.  There, his family could bring him food and water.
  1. In addition to physical abuse by the IGH, Mr. Molière also endured indirect threats to his life.  One officer told him that he was lucky that an agent of the UN Civilian Police assigned to the commissariat had discovered him at the police station, because otherwise his family would have found his body at Titanyen – an area in north Port-au-Prince where the IGH notoriously abandons the bodies of executed political opponents.

 

  1. In May, a month after his arrest, Haiti’s Judicial Police (Direction Centrale de la Police Judiciaire) interrogated Mr. Molière at Delmas 33.   After he refused to make a statement without the presence of a lawyer, the judicial police made Mr. Molière sign a procès-verbal, which stated that he refused to be questioned.
  1. On May 19, 2005, the Bureau des Avocats Internationaux (hereinafter “BAI”), acting as counsel for Mr. Molière, presented a habeas corpus petition to the Chief Judge of the Trial Court of Port-au-Prince (hereinafter “Tribunal) on the basis of Article 26-1, second paragraph, of the Haitian Constitution.    The petition argued that Mr. Molière’s continued detention without judicial process contravened the Haitian Constitution, the American Convention on Human Rights, and the International Covenant on Civil and Political Rights.

 

  1. That very same day, the HNP transferred Mr. Molière to the prosecutor’s office (Parquet). Without questioning Mr. Molière, the prosecutor issued an order (mandat de dépot) to transfer him to Haiti’s National Penitentiary, where he has lived in inhumane and degrading conditions ever since.
  1. Mr. Molière’s first cell at the National Penitentiary housed approximately 96 prisoners.   He now shares a cell built for four with 17 other individuals.  Conditions are such that Mr. Molière and the other prisoners have to take turns lying on the ground in order to sleep.  There are no indoor toilets or running water in the prison cells; while locked inside their cells, prisoners must use buckets or plastic bags to relieve themselves.

 

  1. Twice a day prisoners have access to the outdoors for a few hours.  There, prisoners may use toilet facilities and unsanitary water taps.
  1. Because prison food is scarce and causes illness and allergic reactions, many prisoners rely on family members for food and clean water.  Mr. Molière’s wife, however, lives far from the prison and recently gave birth.  She has been unable to travel the long distance to regularly visit her husband and she cannot afford regularly sending him food.

 

  1. In June 2005, almost one month after Mr. Molière’s lawyers filed the habeas petition, the Chief Judge of the Trial Court denied his petition for release.  The judge noted that Mr. Molière’s case file had been transferred to an investigating judge, suggesting that his case was moving forward under Haiti’s criminal procedures.
  1. The possession of a case file by an investigating judge, however, has no significance under Haitian law unless the authorities timely present the arrestee, in-person, to that investigating judge.  Under the Haitian Constitution, detainees must appear before a judge within 48 hours of their arrest.   Here, the IGH did not present Mr. Molière to an investigating judge until a hearing on August 11, 2005, nearly four months after his arrest.

 

  1. At that hearing, the IGH failed to disclose any charges against Mr. Molière or evidence justifying his detention.  Instead, the investigating judge questioned Mr. Molière solely about his political activities in connection to Famni Lavalas.  Mr. Molière was also questioned about two individuals, Rémicinthe Ravix, a former military leader, and Jean-Anthony René, alias Grenn Sonnen, who were both killed in April.  Mr. Molière disavowed any association with those persons.
  1. Immediately following the hearing, Mr. Molière’s attorneys filed a request for “main levée d’écrou,”(See Article 80 of the Haitian Code of Criminal Procedure), which permits a prisoner’s provisional release so long as he promises to appear if subsequent proceedings require.   After seven months, the IGH has still not made a determination on Mr. Molière’s request for provisional release.  In addition, even though Mr. Molière finally appeared before the investigating judge in August 2005, still no charges have been filed.

 

  1. Once an investigating judge receives an arestee’s case file, that judge has two months in which to conclude his investigation and deliver the person’s case file with the assembled evidence to the prosecutor.  The prosecutor then must prepare a recommendation on whether to file charges.   In Mr. Molière’s case, the investigating judge delayed nearly five months after that deadline before sending Mr. Molière’s case file to the Prosecutor’s office on December 12, 2005.
  1. Under Haitian law, once the Prosecutor receives the case file from the investigating judge, he has five days in which to prepare and return to the judge his final recommendation (“requisitoire final”) on whether or not charges should be filed.  Here, the Prosecutor’s office returned the file more than two months later, on February 24, 2006, and only upon repeated requests by Mr. Molière’s lawyers.

 

  1. Upon receipt of the final recommendation from the prosecutor, the investigating judge has a month to issue a final decision (“ordonnance de clôture”) on whether to charge the accused and commence trial.  In Mr. Molière’s case, the judge has had the Prosecutor’s recommendation for more than a month, but, to date, the judge has failed to release Mr. Molière or file charges.
  1. Meanwhile, the inhumane conditions of Mr. Molière’s confinement have compromised his health.  He has endured frequent intestinal problems, a rash over parts of his body, high blood pressure, and leg pain, likely due to his inability to move around his crowded cell.  In spite of his repeated requests for medical treatment, the IGH has failed to provide Mr. Molière with access to a doctor.  The nurses at the prison recently explained that they no longer have medicines for treating even the most basic human ailments.

 

  1. For decades Mr. Molière has been an outspoken supporter of the Fanmi Lavalas movement.  As a child, he was a beneficiary of “La famille, c’est la vie,” the welfare organization for orphans and street children created by former President Aristide.
  1. He has participated in and was among the organizers of numerous large and peaceful demonstrations advocating the return of the elected government to Haiti.  Mr. Molière participated in demonstrations in September 2004 and on February 28, 2005, the one-year anniversary of President Aristide’s removal from office.   On March 4, 2005, approximately one month prior to his arrest, Mr. Molière, a member of the so-called “Cellule nationale réflexion base Famni Lavalas,” helped to organize a peaceful demonstration in Bel Air.   Mr. Molière also frequently handled the security aspects of Lavalas demonstrations, notifying the police of planned events and discussing security.

 

  1. Mr. Molière believes that his identity and political beliefs are well known by the Haitian police and Interim Government.  In the course of his political activities, Mr. Molière appeared on television several times.

            A.  Available Evidence

 

  1. Habeas corpus petition of 17 May 2005, presented at extraordinary session before the Chief Judge of the Trial Court on May 19, 2005.
  1. Order of Dean of the Port-au-Prince Tribunal of the First Instance, ordering the Commissioner of Government to appear before the Court on May 18, 2005 to respond to Mr. Molière’s habeas petition.

 

  1.  Procès-verbal of the extraordinary session before the Chief Judge of the Trial Court of May 19, 2005, and of June 13, 2005.
  1. Procès-verbal of visit by Justice of Peace Colbert Gène to the Commissariat of Delmas 33 on May 12, 2005, certifying that Bob Molière was still detained at the commissariat at the time of the judge’s visit.

 

  1. Certificate of the registrar of the Trial Court of Port-au-Prince of May 16, 2005, attesting that until that date, no file concerning Bob Molière had been registered at the court.
  1. Request for main-levée d’ecrou (provisional release) of August 12, 2005, received by the registrar of the Trial Court on August 16, 2005.

 

  1. Affidavit by Mrs. Magalie Molière, wife of Bob Molière.
  1. Affidavit by Mr. Arnold Norbrun, acquaintance of Bob Molière, who was with him before his arrest.B.  Witnesses to Violations Denounced

 

  1. Mrs. Magalie Molière, wife of Bob Molière, #2 Delmas 30, Port-au-Prince, Haiti.
  1. Mr. Arnold Norbrun, #9 Rue Famosa, Delmas 33, Port-au-Prince, Haiti.

 

C.  Authorities Responsible for the Facts Denounced

  1. The Interim Government of the Republic of Haiti

 

  1. Conseil Supérieur de la Police Nationale, presided by interim Prime Minister Gérard Latortue.
  1. Haitian National Police, Direction Départementale de la Police de l’Ouest (DDO), headed by Director Renan Etienne at the time of Bob Molière’s arrest and detention at the commissariat of Delmas 33.

 

  1. Commissaire du Gouvernement (Public Prosecutor) at the First Instance Tribunal of Port-au-Prince, headed by by Fredd’Herck Leny.
  1. Former Commissaire du Gouvernement (Public Prosecutor) at the First Instance Tribunal of Port-au-Prince, headed by Jean Pierre Audin Daniel at the time of Mr. Molière’s arrest and subsequent transferral to the National Penitentiary upon prosecutorial order.

 

  1. Former Chief Judge of the Trial Court of Port-au-Prince, Jean Joseph Lebrun, who ruled on Mr. Molière’s habeas petition.
  1. Investigating Judge at the First Instance Tribunal of Port-au-Prince, Emanuel Lacroix.

 

V.        VIOLATIONS OF THE AMERICAN CONVENTION ON HUMAN RIGHTS

  1. The IGH violated Articles 5, 7, 8, 13, 15, 16, and 25 of the American Convention on Human Rights (the “Convention”), and continues to violate those treaty provisions as Mr. Molière’s unlawful detention persists.

 

  1. The Right to Humane Treatment (Article 5)
  1. Article 5 (1) of the Convention protects every person’s right to “physical, mental, and moral integrity.”  In defining the scope of that right, Article 5 (2) guarantees that “[n]o one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.”

 

  1. The Haitian police subjected Mr. Molière to severe physical abuse that amounted to torture and cruel, inhumane, and degrading treatment under Article 5 of the Convention.  As described above, that physical abuse included beatings, handcuffing him for days at a time, and stomping on his body.
  1. Both the Inter-American Commission and the European Commission on Human Rights have concluded that severe beatings in state custody, like those inflicted on Mr. Molière, contravene international human rights standards.  In a case in which Bolivian intelligence agents handcuffed a prisoner for four days, beat him, and threatened him with mutilation, the Inter-American Commission found that the government violated Article (5) of the Inter-American Convention on Human Rights.   Likewise, the European Commission on Human Rights, in the Greek Case, determined that the severe beating of a prisoner all over his body constituted torture and ill-treatment under Article (3) of the European Convention on Human Rights.

 

  1. Additionally, the Inter-American Commission has noted that, in some circumstances, threats to an individual’s life or bodily integrity may alone constitute inhumane treatment in the form of psychological abuse.   According to the Commission, because indefinite detention often compromises detainees’ psychological well-being, threats of further abuse may cause those detainees acute mental harm.   Here, while holding him without charges, the IGH indirectly threatened Mr. Molière’s life, stating that he was lucky his dead body was not abandoned at Titanyen.  By doing so, the IGH violated Mr. Molière’s right to “physical, mental, and moral integrity” under Article (5) of the Convention.
  1. In addition to that physical and psychological abuse, Mr. Molière’s confinement at the National Penitentiary, in and of itself, is violative of the Convention’s protections for prisoners.  For nearly one year, the IGH has held Mr. Molière in a grossly overcrowded, unhygienic cell without adequate food, water, ventilation, and medical treatment.  The Commission and the Inter-American Court of Human Rights (hereinafter “the Court”) have found that detention under conditions similar to those at the National Penitentiary violate Article 5’s prohibition on cruel, inhumane and degrading treatment.

 

  1. For example, in McKenzie et al. v. Jamaica, the Commission found that the treatment of a victim, who had been held incommunicado in a small, damp and poorly ventilated cell, together with sixteen other persons, without necessary hygiene facilities, constituted cruel, inhuman or degrading treatment or punishment contrary to Article 5(2) of the Convention).
  1. In Cyprus v. Turkey, the European Commission on Human Rights also determined that the “withholding from prisoners of an adequate supply of food and drinking water and of adequate medical treatment constituted ‘inhuman treatment’” under Article (3) of the European Convention on Human rights.

 

  1. In the Sewell case, in applying the guarantee of humane treatment under Article (5) of the Inter-American Convention on Human Rights, the Commission examined the United Nations’ Standard Minimum Rules for the Treatment of Prisoners.   Several of those rules are directly applicable to Mr. Molière’s detention.  Rule 10 provides for adequate space in cells, with respect to cubic content of air and minimum floor space.  Rule 11 provides for ventilation and windows sufficient for fresh air.  Rule 12 provides for “sanitary installation.”  The IGH’s clear contravention of those basic guarantees further indicates a violation of Mr. Molière’s right to human treatment under Article (5) of the Convention.
  1. In addition, Article 5 (4) of the Convention requires that “[a]ccused persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall be subject to separate treatment appropriate to their status as unconvicted persons.”

 

  1. As a matter of course, the IGH does not separate pre-trial detainees like Mr. Molière from convicted prisoners at the National Penitentiary.   Thus, the detention of Mr. Molière, an uncharged prisoner, at the National Penitentiary violates Article 5 (4) of the Convention.
  1. The lack of judicial oversight over Bob Molière’s detention has increased his exposure to torture and abusive treatment by the IGH, in violation of his right to personal security while in custody.  Mr. Molière remains vulnerable to further harm and injustice as long as his unlawful detention continues.

 

  1. The Right to Personal Liberty and Security (Article 7)
  1. Article 7 (1) of the American Convention on Human Rights guarantees “every person . . . the right to personal liberty and security.”  The Convention provides that “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.”  Article 7 (3) further makes clear that “no one shall be subject to arbitrary arrest or imprisonment.”

 

  1. The Haitian Constitution states that no one may be arrested without a warrant “[e]xcept where the perpetrator of a crime is caught in the act.”  In addition, the Haitian Constitution’s Guarantee of Individual Liberty (Article 24) provides that lawfully executed arrest orders must include a statement of the reason for the arrest and advise the accused of his right to counsel.  A copy of the arrest order must also be provided to the accused.
  1. In violation of the Haitian Constitution, the Interim Government of Haiti arrested Bob Molière without a warrant.  Even though Mr. Molière was not engaged in any unlawful activity at the time of his arrest — he was merely walking on the street — the police failed to provide a warrant or a reason for his arrest.  Because the IGH’s extrajudicial arrest of Mr. Molière violated Haiti’s own constitutional standards, the IGH also deprived Mr. Molière of his right to physical liberty under Article 7 of the Convention.

 

  1. Article 7 (5) of the Convention further guarantees that “[a]ny 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. . . .”
  1. The IGH denied Mr. Molière access to a judge for the initial four months of his detention, in spite of Haiti’s constitutional guarantee that persons arrested shall be brought before a judge within 48 hours of their arrest (Article 26 of the Haitian Constitution of 1987).  That constitutional violation also denied Mr. Molière his right to a “prompt” appearance before a judicial officer under Article 7 (5) of the Convention.

 

  1. Moreover, once Mr. Molière finally saw a judge in August 2005, the IGH still failed to present any evidence justifying his arrest and continued detention.  Instead, the judge questioned him about his political activities and whether he associated with the regime’s political opponents— strong evidence that Mr. Molière’s arrest was arbitrary and politically motivated.
  1. In addition, while Mr. Molière languished without charges, the investigating judge waited nearly seven months before transferring his case file to the prosecutor for a “requisitoire final,” a recommendation on charges.  Under Haitian law, that process should have taken no more than two months.  The Prosecutor’s office then delayed another two months before returning his recommendation and file to the investigating judge.  Under Haitian law, that process should have occurred within five days.

 

  1. In yet another delay, the Investigating judge should have filed charges or released Mr. Molière within one month of receiving the Prosecutor’s final recommendation on February 24, 2006.   However, more than a month has passed and Mr. Molière remains detained without charges.
  1. Article 7 (5) provides that if a person is not tried within a reasonable time, he shall “be released . . . subject to guarantees to assure his appearance for trial.”

 

  1. The IGH has not tried Mr. Molière within a reasonable time, and has failed to release him on his own recognizance, as required by the Convention.  As a result, Mr. Molière has now been unlawfully detained for approximately a year.
  1. This arbitrary denial of liberty is a severe violation of Article 7, which has caused the prolonged inhumane and degrading treatment of Mr. Molière in further violation of the Convention.

 

  1. Moreover, the IGH has not responded to, or even acknowledged, Mr. Molière’s August 2005 request for provisional release pending trial.
  1. The interim government has shown its willingness, however, to order provisional release of prisoners when it suits their political aims.  On March 9, 2006, the IGH granted provisional release to at least six police officers accused of participating in the Grande Ravine Football Massacre in Haiti.   During that atrocity, police armed with guns and civilians armed with machetes brutally attacked a crowd at a soccer game, killing at least ten people, and wounding dozens.

 

  1. In contrast, the IGH has not presented any evidence against Mr. Molière, but he remains in prison without charges.
  1. Judicial Guarantees and Judicial Protection (Article 8 (1) and 25 (1))

 

  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 . . ..”
  1. The IGH violated Article 8’s guarantee of due process and a prompt judicial hearing by delaying four months before presenting Mr. Molière to an investigating judge.  Moreover, that hearing did not constitute “independent” and “impartial” review by a “competent” tribunal, given that the judge did not substantiate any criminal charges or accusations against Mr. Molière, and instead inquired into Mr. Molière’s political activities and associations.  Furthermore, the investigating judge cannot be regarded as a “tribunal” in the meaning of Article 8, given that he does not rule on the substance of the accusation.  Rather, the investigating judge merely has a role similar to the police and prosecutor in investigating the case and determining whether there is sufficient evidence to try a person before a competent tribunal.

 

  1. The absence of judicial oversight over the IGH’s ongoing detention of Mr. Molière for nearly a year without charges or trial is a plain violation of Article 8’s fundamental guarantees of judicial protection.
  1. In addition, Article 25 (1) states that “everyone has the right to simple and prompt 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.”

 

  1. By failing to properly address Mr. Molière’s May 19, 2005 habeas petition, the IGH violated Mr. Molière’s right to “prompt recourse” for violations of fundamental rights under Article 25 of the Convention.  Although Mr. Molière’s habeas petition argued that his arbitrary arrest without a warrant and continued detention without charges violated the Haitian Constitution and international human rights law, the Tribunal denied the petition on the basis that Mr. Molière’s file had been transferred to the investigating judge.
  1. That decision ignored the fact that the IGH had not presented Mr. Molière to an investigating judge as required by the Haitian Constitution, and that Haitian law requires any delay by the investigating judge to be justified in a special ordinance communicated within 24 hours to the Chief Judge of the Trial Court and the Prosecutor.

 

  1. By ignoring IGH’s violations of Haitian law and the lack of evidence supporting Mr. Molière’s detention, the IGH’s inadequate response to the habeas petition violated its obligation under Article 25 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 . . . and ensuring adequate reparations for the victim.”
  1. Under Article 25 of the Convention, administrative delay may not defeat an individual’s right to simple and prompt recourse for violations of fundamental rights.

 

  1. Right to Freedom of Thought & Assembly (Articles 13, 16)
  1. Article 13 of the Convention protects each person’s “right to freedom of thought and expression,” including the right “to seek, receive, and impart information and ideas of all kinds.”

 

  1. The Convention also recognizes in Article 15, the “right of peaceful assembly, and, in Article 16, “the right to associate freely” for ideological and political purposes.
  1. Although IGH has failed to present any evidence justifying Mr. Molière’s detention on the basis of criminal wrongdoing, there is strong evidence that Mr. Molière’s arbitrary detention is politically motivated.  The IGH questioned Mr. Molière during the first month of his detention about groups allegedly supporting former President Artistide’s political party, Lavalas, and tried to force him to incriminate Father Jean-Juste, a prominent political dissident and political prisoner.

 

  1. Significantly, only a month before his arrest, Mr. Molière, an outspoken supporter of the Fanmi Lavalas movement for decades, organized a large and peaceful demonstration in Bel Air.  Throughout the past two years, human rights organizations have recorded countless arrests and acts of persecution against members of the Lavalas Party by the Haitian National Police and the former Haitian military.
  1. By targeting him for his political activities and beliefs, the Interim Government of Haiti has violated Mr. Molière’s right to freedom of thought, assembly and association under Articles 13, 15, and 16 of the Convention.

 

VI.       LEGAL REMEDIES TO REDRESS THE CONSEQUENCES OF THE FACTS DENOUNCED

A.        Measures Taken By Petitioner to Redress Violations of His Rights

  1. Attorneys for Mr. Molière invoked domestic remedies on May 19, 2005, when they filed a habeas corpus petition on his behalf, arguing that Mr. Molière’s continued detention without judicial process contravened the Haitian Constitution and international human rights treaties.  As noted, the Judge denied the requested relief, ignoring the lack of evidence implicating Mr. Molière in any crime, as well as the IGH’s violation of the Haitian constitution, domestic criminal procedures, and international human rights law. 
  1. In addition, immediately following his hearing before an investigating judge in August 2005, Mr. Molière’s attorneys filed a request that Mr. Molière be released pending subsequent proceedings.  After seven months, the IGH still has not responded to that request.

 

B.   Given That Mr. Molière Has Already Been “Denied Access” to Domestic Remedies and Suffered “Unwarranted Delay” in Receiving Due Process of Law, Further Attempts to Pursue Legal Remedies in Haiti Would Be Futile

  1. Article 46( 1 )( a ) of the Convention provides that, in order for a petition filed with the Commission to be admissible, it is necessary “that the remedies under domestic law have been pursued and exhausted in accordance with generally recognized principles of international law.”

 

  1. Paragraph 2 of Article 46 states that this requirement shall not apply when “the party alleging the violation was denied access to the remedies under domestic law or has been prevented from exhausting them”; or when “there has been an unwarranted delay in rendering a final judgment on the aforementioned remedies.”
  1. 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.”

 

  1. In spite of the efforts of his attorneys to work within the Haitian judicial system, Mr. Molière has remained detained in inhumane and degrading conditions without charges or any relief for nearly a year.
  1. Although Haitian law, including the Haitian Constitution and Haiti’s Code of Criminal Procedure, as amended by Article 7 of the Law of 26 July 1979, respect the rights of an individual to minimal due process protections, not one of the procedures outlined by Haitian law that would protect against wrongful and unjustified detention have been followed in Mr. Molière’s case.   Unfortunately, the general ineffectiveness of the Haitian legal system is evident in countless other cases of Haitian political prisoners. 

 

  1. The Haitian government has systematically denied political prisoners effective access to the courts.  In most cases, prisoners languish in brutal conditions of confinement without access to a judge for months.    However, even when judges actually review prisoners’ cases, many times the IGH frustrates judicial efforts or ignores orders recognizing prisoners’ rights.
  1. For example, in October 2004, the IGH arrested grassroots activist Jean-Marie Samedí for planning a September 30 demonstration. On November 24, 2004, a judge found his detention illegal and arbitrary and ordered him free. The government, however, did not formally release Samedí for almost a year (he did leave prison in a jailbreak in February, 2005).

 

  1. Another judge ordered political prisoners Harold Sévère and Anthony Nazaire free on December 23, 2004.  In those cases, the prosecutor even agreed to execute the order.  However, both are still in prison under an illegal order from the Minister of Justice.
  1. 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, beyond the jurisdiction of that judge.

 

  1. In addition, the IGH has pressured other Judges who have decided political prisoner cases in compliance with the Haitian Constitution. For example, in December 2004, Justice Minister Bernard Gousse pressured the Chief Judge of the Port-au-Prince trial court to remove cases from two judges who had liberated political prisoners under the purported claim that those judges were too “slow.”
  1. The ineffectiveness, corruption, and lawlessness of the justice system in Haiti is perhaps best illustrated by the March 9, 2006 release of six police officers accused of the brutal killings of at least ten civilians during the Grande Ravine Football Massacre.   While political prisoners remain detained without charges, vicious murderers have been turned loose by their political allies.

 

  1. As demonstrated by Mr. Moliere’s experience and noted by international observers, the Haitian judiciary is dysfunctional.   Judges lack resources and proper training and are subject to interference by the executive and intimidation. Politically sensitive cases, such as those of political prisoners, have been taken away from courageous judges who dared to make independent decisions.  Investigating judges face transfer and reprisals if they investigate crimes committed by the police and its attachés. 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.
  1. There is no avenue to justice within the Haitian domestic system for Mr. Molière. The requirement to exhaust domestic remedies is, therefore, inapplicable according to Article 46 (2) of the Convention.

 

VII.     BOB MOLIERE’S LIFE, INTEGRITY AND HEALTH ARE IN JEOPARDY AND HAITIAN AUTHORITIES HAVE NOT RESPONDED TO REQUESTS FOR ASSISTANCE

  1. Mr. Molière’s health is in grave danger on account of the brutal conditions of his confinement.  He has been malnourished and without sufficient clean water for nearly a year.  He endures frequent intestinal problems, a rash over parts of his body, high blood pressure, and leg pain, likely due to his inability to move around his crowded cell.  The IGH has ignored Mr. Molière’s request for access to a doctor and medical treatment.  Given the systemic failure of the IGH to provide humane treatment to persons detained at the National Penitentiary, as long as Mr. Molière’s unlawful confinement continues, his life and health remain acutely at risk.

 

  1. Moreover, Mr. Molière’s unlawful imprisonment has meant a prolonged and painful separation from his family.  He has never seen his youngest child, who was born at the end of last year.  The IGH’s unlawful actions have also had grave psychological and economic consequences for his family.   Mr. Molière’s street vending stand can no longer operate and Mr. Molière’s daughter can no longer afford to go to school.
  1. In short, Mr. Molière’s life and health, and the well-being of his family remain in jeopardy as long as his unlawful imprisonment continues.

 

VIII.    THIS CLAIM CONTAINED IN THE PETITION HAS NOT BEEN FILED WITH THE UNITED NATIONS HUMAN RIGHTS COMMITTEE OR ANY OTHER INTERNATIONAL ORGANIZATIONS

  1. The Inter-American Commission on Human Rights is the only international body with which Bob Moliere’s complaint has been filed.

 

Joe Mozingo, Hundreds of Bodies, Miami Herald (Mar. 19, 2004) (noting that “after weeks of political violence in the capital . . . three trucks rumbled off in the middle of the night, carrying more than 700 bodies to Titanyen”); Haiti Progres, Masked Men Massacre Slum Dwellers (Nov. 13, 2004), available at http://haitixchange.com/hx/article.asp?article_id=21(describing how victims are “driven to and executed at Titanyen, a desolate dumping ground just north of the capital”).

See Procès-verbal of Visit by Justice of Peace Colbert Gène to the Commissariat of Delmas 33 on May 12, 2005 (certifying that Bob Molière was still detained at the commissariat by May 12, 2005) (Attached).

See Habeas Corpus Petition in the Name of Mr. Bob Molière, detained at the Commissariat at Delmas 33 (filed with the Dean of the Port-au-Prince Tribunal of the First Instance, May 17, 2005) (with English translation) (Attached).

A U.S. federal court has described conditions at the National Penitentiary as reminiscent of a “slave ship.” See Auguste v. Ridge, 395 F.3d 123, 129 (3rd Cir. 2005) (noting that “malnutrition and starvation is a continuous problem” at the National Penitentiary, that prisoners are kept in severely overcrowded cells without basic sanitation facilities where temperatures can reach 105 degrees Fahrenheit during the day, and that prisoners, who are denied medical treatment, suffer from HIV/AIDS, Tuberculosis, and diseases caused by malnutrition).

Overcrowding at the National Penitentiary is a severe problem.  The prison was built to hold 800 prisoners, but currently holds 1800.   See United States State Department Report on Human Rights Practices for Haiti, 2005, available at http://www.state.gov/g/drl/rls/hrrpt/2005/61731.htm. [hereinafter “2005 State Department Report”]

In an undated reply to the habeas petition, the Prosecutor justified Bob Molière’s pre-trial detention, by claiming that his file had been submitted to the Cabinet d’instruction of the first instance tribunal on May 6, 2005, such that his case was following the “normal course.”  Prior to this statement, the Prosecutor had not replied to the habeas petition, in spite of an Order to do so issued by Jean Joseph Lebrun, Dean of the Port-au-Prince Tribunal of the First Instance.  See Procès-verbal of the extraordinary session before the Chief Judge of the Trial court of May 19, 2005, and of June 13, 2005; Order of Dean of the Port-au-Prince Tribunal of the First Instance.  (Attached).

Article 26 of the Haitian Constitution of 1987.

See Request for main-levée d’ecrou (provisional release) filed on behalf of Mr. Molière on August 12, 2005, received by the registrar of the Trial Court on August 16, 2005. (Attached).

Haiti’s Code of Criminal Procedure (“le Code d’Instruction Criminelle”), as amended by Article 7 of the Law of 26 July 1979 Regarding Orders by Investigating Magistrates, limits investigating magistrates to two months for their investigation, and an additional month to prepare the final order. It allows the judge additional time only if the judge issues a special order to the Chief Judge and the Prosecutor justifying the delay.

See Aaron Mate, In the Shadow of Aristide, Toronto Star (Mar. 9, 2005), available at http://www.zmag.org/content/print_article.cfm?itemID=7404&sectionID=55 (discussing violence at February 28, 2005 demonstration).

See MINUSTAH press release at http://www.un.org/Depts/dpko/missions/minustah/pr92e.pdf (confirming the March 4, 2005 demonstration).

Witnesses can be contacted through the Bureau de Avocats Internationaux (petitioner under 3) in Port-au-Prince.

See Inter-Am. C.H.R. Report Nº 33/82, Case 7824 – Bolivia, 8 of March 1982 (finding that beating of a prisoner and threats of further harm constituted “serious violations of the right to humane treatment (Article 5)”).

Eur. Court H.R., Greek Case, 12 YB 1, para. 186 (1969).  In addition to its own jurisprudence, the Commission has found further guidance on what constitutes torture and inhuman and degrading treatment under the Inter-American Convention on Human Rights by reference to the decisions of the United Nations Human Rights Committee and the European Commission on Human Rights.  See Coard et al. v. United States, Case 10.951, Inter-Am. C.H.R. Report Nº 109/99, para. 39.

See Jailton Neri Da Fonseca v. Brazil, Report No. 33/04, Case 11.634 – Brazil, 11 of March 2004 (stating that petitioner “must have experienced extreme fear and terror in finding himself in the hands of the military police, not knowing where they were taking him” and concluding that that such circumstance “brought on . . . a situation of extreme psychological and moral suffering”); see also Eur. Court H.R. Campbell and Cosans Judgment of 25 February 1982, Series A, N° 48, paragraph 26, cited by the IACHR in the case Villagrán Morales et al, Judgment of November 19, 1999, paragraph 165.

See Jailton Neri Da Fonseca v. Brazil, Report No. 33/04, Case 11.634 – Brazil, 11 of March 2004.

  Case 12.023, Annual Report of the IACHR 1999; paras. 270-291.

Eur. Comm. H.R., Cyprus v. Turkey, 18 Y.B. Eur. Conv. Hum. Rgts. 83 (1975).  As the United Nations Human Rights Committee noted in Daniel Pinto v. Trinidad and Tobago, the “obligation to treat individuals deprived of their liberty with respect for the inherent dignity of the human person encompasses the provision of adequate medical care during detention.”  U.N.H.R.C., Daniel Pinto v. Trinidad and Tobago, Communication No. 232/1987, U.N. Doc. CCPR/C/39/232/1987.

Dave Sewell v. Jamaica, Inter-Am. C.H.R. Report Nº 76/02, Case 12.347.

See 2005 State Department Report, supra (noting that “[p]rolonged pretrial detention remained a serious problem” in Haiti in 2005, such that 96 percent of detainees at the National Penitentiary “had not been formally sentenced by a judge”  and that “[o]vercrowding prevented the separation of violent from nonviolent prisoners or convicts from those in pretrial detention”).

See Report No. 33/04, Case 11.634, Jailton Neri Da Fonseca, Brazil (Mar. 11, 2004) (noting “that a person who is unlawfully detained is in an exacerbated situation of vulnerability creating a real risk that his other rights, such as the right to humane treatment and to be treated with dignity, will be violated”).

See Police Accused of Grande Ravine Massacre Released, Haitian Press Agency (Mar. 10, 2006), available at http://www.ijdh.org/articles/article_recent_news_3-14-06b.htm

David Adams, Haiti Police Accused in Soccer Killings, St. Petersburg Times (Aug. 31, 2005).

Article 7 of the Law of 26 July 1979.

Inter-Am. Ct. H.R., Velásquez Rodríguez Case, Judgment of July 29, 1988, par.174; Inter-Am. Ct. H.R., Godínez Cruz Case, Judgment of January 20, 1989, par. 184.

University of Miami School of Law, Haiti Human Rights Investigation: November 11-21, 2004; Joseph Guyler Delva, U.N. to Inventory Detainees, Press for Court Appearance, Reuters (Nov. 11, 2004) (noting that “[u]p to 700 supporters of Aristide, including his former prime minister, Yvon Neptune, are imprisoned”); Amnesty International, Briefing for the Security Council (April 8, 2005), available at http://www.globalpolicy.org/security/mtgsetc/050408ai.pdf  (noting recent “evidence of politically motivated persecution of Lavalas Family party members and supporters, many of whom have been detained for months without charge or trial”).

Inter-Am. Ct. H.R., Velásquez Rodríguez Case, Judgment of July 29, 1998, para. 68

See 2005 State Department Report, supra (noting that “[s]ystemic problems—including underfunding and a shortage of adequately trained and qualified justices of the peace, judges, and prosecutors—created a huge backlog of criminal cases, with many detainees waiting months or in pretrial detention for a court date”).

  Letter from Judge Jean Senat Fleury to Justice Minister Bernard Gousse, January 10, 2005.  (Attached)

See Police Accused of Grande Ravine Massacre Released, Haitian Press Agency (Mar. 10, 2006), available at http://www.ijdh.org/articles/article_recent_news_3-14-06b.htm

ICG Report, Spoiling Security in Haiti, 16 (May 31, 2005); Report of the Security Council Mission to Haiti, 13-16 April 2005, para. 52; IACHR Press Release of September 7 after concluding its visit to Haiti.

See Auguste, supra, 395 F.3d at 129; 2005 State Department Report, supra.

See Affidavit of Mrs. Magalie Molière, wife of Bob Molière, #2 Delmas 30, Port-au-Prince, Haiti.

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