MEMORANDUM

To:  December 5 Case File

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

Date:  April 21, 2006

On April 13, 2006, the Juge d’Instruction Mimose Janvier issued an ordonnance de clôture in the case known as the December 5, 2003 case. The case deals with the violent incidents and alleged attacks against opposition supporters by pro-government counter-demonstrators during a
December 5, 2003 student demonstration against the government of President Jean Bertrand Aristide. The ordonnance de clôture closes the investigating phase of the proceedings and includes a decision on whether each defendant will be charged and sent to trial (ordonnance de renvoi) or discharged and released if currently held in pre-trial detention (ordonnance de non-lieu).

I. Background:

The complainants reported that on December 5, 2003, student demonstrators who had gathered at the Faculty of Humanities of Haiti’s State University in Port-au-Prince for an anti-government demonstration were confronted by a group of pro-government counter-demonstrators assembled in front of the faculty building. The complainants alleged that some counter-demonstrators were armed and violently attacked the students and stormed the faculty building. Several people were injured during the incident, among them University Rector Jean Marie Paquiot. Doors, windows and furniture inside the building were destroyed.

II. Summary of the Ordonnance:

The case file submitted to the investigating judge by the prosecutor’s office names 11 defendants, many of them former public officials and all of them supporters of the Fanmi Lavalas movement. They were accused of association de malfaiteurs (criminal conspiracy), bodily injury and damage to State property in relation to the December 5, 2003 incidents. The defendants named were:

1. Annette Auguste (Sò Ann) activist and prominent folk singer, arrested illegally without a judicial warrant during the night of 9 May 2004 at her home by US marines and later handed over to the Haitian National Police;
2. Antoine Yvon (Zap Zap), musician and leader of a traditional street music band, arrested illegally (no warrant mentioning his name was presented(1)) on 22 March 2004 by Haitian police;
3. Jacques Antony Nazaire, former head of the presidential security guard, arrested illegally on 12 March, 2004, by members of the Front de Resistance Nationale, a paramilitary organization led by Guy Philippe;
4. Harold Sévère, former adjunct mayor of Port-au-Prince, arrested illegally (no warrant was produced) on March 14, 2004 by Haitian police;
5. Paul Keller, former Director of the Conseil National des Equipements – CNE (a government public works agency), arrested illegally (no warrant was produced) on March 13, 2004;
6. Rospide Pétion, former director of Airport Security, arrested illegally (no warrant was presented) on March 14, 2004;
7. Yvon Neptune, former Prime Minister, who turned himself in to the Haitian police on June 27, 2004, when the press announced that an arrest warrant had been issued against him by a St. Marc judge in the La Sciérie case;
8. Jocelerme Privert, former Minister of the Interior, arrested illegally in the middle of the night on April 6, 2004; also indicted in the case of La Sciérie.
9. Paul Raymond, co-founder of the liberation theology church movement Ti Legliz, irregularly deported from the Dominican Republic on July 22, 2005, and handed over to the Haitian police;
10. Mario Exilhomme, grassroots activist from Belair, irregularly deported from the Dominican Republic on July 22, 2005, and handed over to the Haitian police;
11. George Honoré, grassroots activist from Belair, arrested illegally without warrant in May 2005.

The ordonnance dismisses all charges in the dossier against Jacques Anthony Nazaire, Harold Sévère, Paul Keller, Rospide Pétion, Mario Exilhomme, Yvon Neptune and Jocelerme Privert. It declares that there is sufficient evidence to charge the four other defendants, either as authors or as accomplices, despite the fact that the prosecutor, in his réquisitoire definitif (recommendation to the investigating judge) recommended that the charges be dropped against three of the four, and despite the total absence of witnesses to any wrongdoing by any of the defendants.

Upon her own initiative, i.e. without being requested by the Prosecutor’s Office (Parquet), the investigating judge extended her findings to charge René Civil, leader of the youth organization JPP (Jeunesse Pouvoir Populaire), and former police commissioners Ricardo Etienne and Claudette Estimable – the latter two for not having acted decisively enough to stop the violence. Judge Janvier also charged several persons identified only by their first name or alias.

III. Summary of the investigation:

The investigation phase at the cabinet d’instruction was started by Judge Brédy Fabien, and the case file was later transferred to Judge Janvier. Several students who had filed criminal complaints testified before the investigating judge, but were not able to identify any of the purported attackers. The judge also questioned the University Rector, Jean Marie Paquiot, and Charles Henry Baker, a leader of the Group of 184 opposition organization and recent Presidential candidate. Mr. Baker had not been present at the December 5 incident, but had nevertheless filed a criminal complaint in the name of the Group of 184. The majority of the student plaintiffs had ignored summons to appear before the investigating judge and never testified. None of the victims and witnesses who testified were able to identify any of the defendants as their aggressors or place them at the scene of the incident.

In December 2004, investigating Judge Fabien granted a provisional release (main-levée d’écrou) to Jacques Antony Nazaire, Harold Sévère, Paul Keller and Rospide Pétion, on the grounds that their names did not figure in the students’ complaints and that no witnesses had placed them at the scene of the incident. Paul Keller and Rospide Pétion were freed at the end of 2004 on the condition that they remain in the country and be available for further proceedings. The release orders for Nazaire and Sévère, were blocked by an illegal order of the then Justice Minister Bernard Gousse. Minister Gousse also ordered the Chief Judge of the Trial Court to immediately take away all cases from Judge Fabien. This order was illegal, and a violation of judicial independence. It was issued a few days after Judge Fabien’s main-levée order, which leads to the conclusion that it was a retaliation for the order.

IV. Analysis of the ordonnance with respect to the defendants who were not charged (non-lieux)

The decision to dismiss the charges against Yvon Neptune, Jocelerme Privert, Jacques Antony Nazaire, Harold Sévère, Paul Keller, Rospide Pétion and Mario Exilhomme is based on the undisputed finding that the investigation did not reveal any evidence that implicates the seven defendants in the events of December 5, 2003. There was no evidence that they were present at the incident, nor did the investigation establish any evidence of indirect participation.

The ordonnance also declares that Jacques Anthony Nazaire’s arrest had been illegal as carried out by irregular forces who had no legal authority to exercise state power. The ordonnance failed to address the illegal arrest of Annette Auguste by US Marines or the irregular deportation of Paul Raymond and Mario Exilhomme from the Dominican Republic(2).

Despite being cleared of all charges in the December 5 case, Yvon Neptune and Jocelerme Privert remain in pre-trial detention in the case of La Sciérie, in which they were charged by ordonnance de clôture of September 14, 2005, issued by a different investigating judge in St. Marc. This ordonnance is currently subject to an appeal before the Appeals Court of Gonaïves.

V. Analysis of the ordonnance with respect to the defendants who were charged (renvois)

Despite the fact that no witnesses were able to identify any of the other defendants in the dossier as perpetrators of the December 5 incidents, the ordonnance finds that there are sufficient charges against them to stand trial as authors or accomplices of the alleged offenses, including the crime of Association de malfaiteurs.

Association de malfaiteurs is a vague conspiracy charge under Haiti’s Penal Code. The Code does however 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.(3)

The ordonnance de clôture does not analyze the elements of the crime one by one with respect to each individual defendant, but limits itself to the observation that the individuals who attacked the student demonstrators had constituted themselves as an association de malfaiteurs with the aim to disrupt the demonstration. It does not establish an organizational link between the defendants, nor does it allege any organizing activity among them, any correspondence between them, or any agreements regarding the accounting, distribution or sharing of the fruits of criminal acts.

1. Annette Auguste (Sò Ann)

The ordonnance alleges that singer Annette Auguste had declared during her second interrogation before the investigating judge that she was in charge of all demonstrations organized by the Fanmi Lavalas party. The ordonnance further observes that Annette Auguste had been accused “by rumor” of having been involved in violent attacks against opposition supporters during a different anti-government demonstration a year earlier, on December 3, 2002. Based on these observations alone, the ordonnance concludes that there is sufficient evidence to establish Ms. Auguste as an accomplice to the offenses perpetrated on December 5, 2003. The ordonnance, however, does not establish or even allege that the December 5 counter-demonstration was a demonstration organized by the Fanmi Lavalas Party, nor that Ms. Auguste planned or participated in any way in the incidents.

2. Yvon Antoine (Zap Zap)

The ordonnance observes that Yvon Antoine, alias Zap Zap, was denounced by public outcry (“clameur publique”) as one of the students’ attackers, and specifically as the one who had fractured the legs of Rector Paquiot. Yet not a single witness testified to seeing Mr. Antoine at the scene, and no other evidence was presented linking him to the December 5 incidents. The charges against Mr. Antoine have two bases: First, Rector Paquiot accused Antoine, but he admitted that the accusation was only based on something he had read on the internet, and learned through public rumor. Mr. Antoine was never provided the opportunity to confront his accusers directly, which is a serious shortcoming of the investigation. Second, the judge noted that Mr. Antoine admitted that he and his music group were present at the counter-demonstration of December 5 and, during a second interrogation, that he had tried to help students who had been affected by tear gas. The judge found that these declarations were contradictory and treated this as evidence that Mr. Antoine was involved in criminal activity. The mere presence at a demonstration that turns violent is not  evidence of participation in acts of violence, nor are apparently contradictory statements during two interrogations. Even where it can be shown that a defendant lied on certain aspects during interrogations, this alone cannot be regarded as proof of culpability in the absence of evidence that he actually committed the offense.(4) 

3. Paul Raymond and René Civil

The indictments of Paul Raymond and René Civil for complicity in the offenses committed on December 5, 2005 are based solely on the finding that Paul Raymond and René Civil were both grassroots organizers known for their inflammatory declarations against members of the opposition. The judge asserted that this alone establishes a “narrow link” between the defendants’ actions and the December 5 attacks. The ordonnance does not establish, nor allege that they were present at the scene or participated in any planning activity of the alleged attacks.

4. Georges Honoré

The decision to charge Georges Honoré was based on a police report stating that students had recognized the defendant as part of a group of aggressors on December 5, that he himself was injured during the incidents, and that his face still showed visible scars of the injury. The ordonnance does not confirm that any of this testimony was repeated before the investigating judges. The Investigating Judge also declined to allow a confrontation between Mr. Honoré and the students who allegedly identified him to the police.

VI. Next steps

The ordonnance de renvoi  isthe first formal levying of charges against a defendant, and is similar to the American system’s indictment. Except for the seven defendants who were not charged, Judge Janvier referred the case for trial by a tribunal criminel, which is a single trial court judge, sitting without a jury. The defendants as well as the public prosecutor can appeal against the ordonnance. The defendantsmustappeal within 10 days of receiving the ordonnance. The prosecutor must submit the defendants’ appeal, with his position on it, to the Court of Appeals within 48 hours. During the appeal phase, the trial is postponed. According to the Haitian procedural code, the Court of Appeals must rule on the appeal as quickly as possible, with a maximum delay of 30 days.(5) The Appeals Court has the authority to rescind the ordonnance and either issue a new ordonnance or order an additional investigation. On April 19, 2006, the Bureau des Avocats Internationaux filed an appeal in the name of Annette Auguste. BAI is prepared to extend the appeal on behalf of its other clients who have been charged. Even after the appeals deadline, other defendants can join the appeal and submit their conclusions.

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