30 May 1996

MICIVIH has prepared a report that analyzes Haitian penal procedure and the penal side of the judicial system and makes a set of recommendations for judicial reform. This report is a product of the human rights observation and institution-building work carried out by the Mission's various regional offices since its return to Haiti in October 1994. Throughout this period MICIVIH was helped by many Haitian judges working in difficult conditions. Their dedication and readiness to cooperate should be seen an asset for judicial reform in Haiti.

The report finds that the principle of judicial independence, although established in the Constitution, is not guaranteed in practice. The Constitution envisages a procedure for appointing judges that has yet to be implemented. The uncertainty of judges about their status adds to the precariousness of a profession already subject to many pressures. The weakness of the judiciary as an institution and the many dismissals without explanation contribute to erode the credibility of judges, whose integrity is often questioned by the public.

MICIVIH notes the slowness of judicial procedures and many cases of prolonged detention. More than 80 per cent of the prison population is awaiting trial. When detainees are released, it is often not as the outcome of a trial but on a provisional release order that is contrary to legal provisions and which, in practice, becomes definitive. Because investigating judges have limited technical training or material with which to work, proper judicial investigations are rare. As a result, trial judges receive dossiers that lack the elements necessary to hand down informed judgments.

MICIVIH has monitored respect for the legal and constitutional provisions concerning arrest and detention: namely, issue of appropriate warrants and appearance before a judge within 48 hours. While an improvement has been observed, many irregularities continue and there is a confusion about warrants which must be clarified when the codes are reformed.

Furthermore, the penal system above all affects the least privileged sectors of the population (60 per cent of prosecuted offenses are cases of theft and assault, the kind of offense usually associated with those who have few economic resources). The right to defense, established in the Constitution and international treaties, does not exist in practice for the many sectors of Haitian society who cannot afford a lawyer.

 Faced by these problems, the ongoing judicial reform should try to modernize the judicial system in such a way as to enhance respect for the human dignity of both suspects and victims. This means that judicial guarantees must be applied in all phases of the penal procedure. It also means there must be a fair and effective system of criminal investigation. Judicial reform must be inspired by a determination to anchor the penal system to values shared by the entire society.

In light of this, the report makes a series of recommendations that could help resolve the problems observed:

On the Status of Judges and other Judicial Officials

• Consider the recommendation of the National Commission for Truth and Justice that a committee should be established to evaluate judges;
• Following the evaluations of this committee, proceed with the appointment of judges under the procedure established by the 1987 Constitution;
• Have justices of the peace appointed for a specific period;
• Draft a law on the status of judges that gives them effective guarantees;
• Modify the 22 August 1955 Decree on the organization of the judiciary in such a way as to guarantee the judiciary's independence, objectivity and impartiality;
• Strengthen and modernize the Superior Council of Judges;
• Provide the Academy of Judges with a statute guaranteeing its role in the recruitment of judges;
• Adopt professional codes for judges and investigating judges based on the texts that have been adopted by the United Nations.

On Penal Legislation

• Initially, prepare draft laws abolishing the imprisonment of debtors, modifying the preventive detention provisions and tackling other penal procedure reforms that are priorities, and ratify as yet unratified human rights treaties whose principles should be applied to improve the administration of justice;
• Subsequently, undertake a thorough overhaul of the Penal Code and the 1825 Criminal Investigation Code, giving priority to penal procedure. In this regard, the MICIVIH report outlines a reform of penal procedure that brings Haitian law into line with the Constitution and the treaties ratified by Haiti.

On the Organization and Functioning of the Judicial System

• In Ministry of Justice circulars, clarify such questions as police custody, use of the urgent criminal court procedure in cases of flagrante delicto, use of preventive detention, the abolition of imprisonment for debtors, etc.
• Continue pilot operations in prisons to monitor the status of individual detainee dossiers in order to verify whether the judicial guarantees are applied;
• Systematically schedule criminal assizes throughout the nation;
• Ensure better coordination between the various judicial authorities, and between judicial, prison and police authorities.

On the Right to Defense, Legal Aid and Access to Justice

• Give the defense lawyer a greater role in penal procedure, especially during the phase of judicial investigation;
• Promote a bill for the creation of a public legal aid system for the poor;
• Increase the use of Creole in the courts;
• Create a program to make the public more aware and better informed about the workings of the judicial system.

On the Training and Retraining of Judicial Officials

• Encourage and reinforce the efforts undertaken with the international community's help to ensure that judges are trained at the Academy for Judges;
• Extend the work of the Academy for Judges to include the training of court clerks and all other judicial officials.

On Minors

• In the short term, ensure that detainees who are minors do not share cells with adults;
• In the long term, create an effective system of justice for minors.

On Help for Crime Victims

• Create a system of financial, psychological and legal support for crime victims in order to mitigate acts of revenge and lower the level of violence in Haitian society.
• Finally, the report underscores the importance of maintaining and increasing the material aid of all sorts accorded to the judicial system (including documentation, equipment, supplies, infrastructure and communications), and the need to pay particular attention to the problem of the judiciary's pay.