Posted October 28, 2002

The Court of Appeal of Gonaives, First Section, in an extraordinary hearing and in its attributions relating to the violation of individual freedom, has rendered the following decision:

On the appeal filed by citizen PROSPER APRIL, resident of Port-au-Prince, identified with No: 003-229-434-5, having as attorneys RIGAUD DUPLAN, REYNOLD GEORGE and EMMANUEL D. CLERSAINT identified, licensed and respectively registered with no. 003-000-147-1, 1477971, B-2046024; 003-000-255-8, 403207, B-2221; 001-112-852-8, 04361722 and B-1743920, with residence at the law offices of Mr. Duplex JEAN BAPTISTE located in Gonaïves at ...(sic) street, the appellant, on the one hand;

Against an ordinance (sic) of the deputy judge fulfilling the functions of Dean of the Civil Court of Saint-Marc, rendered on September nineteen two thousand two, and Mr Frénot CAJUSTE, Government Commissioner at the Civil Court of St-Marc, on the other hand;

Considering the original of the motion dated October 4 2002 for purposes of granting the right to sue and the aforementioned ordinance attached to this request;

Considering the power of attorney dated Tuesday eight (8) October 2002 given by citizen Prosper APRIL to his lawyers, for purposes of following through with the process of appeal;

Considering the declaration of appeal on Wednesday October nineteen two thousand two, made at the Clerk's office of the Civil Court of St-Marc by Mr. Reynold GEORGE, a lawyer as designated above and qualified as stated above to represent Mr. Prosper AVRIL;

Considering the ordinance (sic) dated Thursday September nineteen two thousand two of judge Jean GERMAIN, dean of the Civil Court of St-Marc;

Considering the copy of subpoena dated October first two thousand two, of court messenger Anouald BEAUBRUN of the Supreme court of the Republic;

Considering the photocopy of a subpoena to appear in court, dated March 7, 2002 of investigating judge Henry Kesner NOEL;

Considering the certificate dated October 07, 2002 of the National Police * Department of Penitentiary Administration, signed by René Jean Daniel, Regional Deputy-manager of West Dept. * Head Commissioner * Manager of the National Penitentiary;

Considering the final receipt of the Tax Office attesting the consignment of fine for the appeals;

Considering finally the Conclusions of the Office of the Prosecutor;

THE FACTS

On Thursday September nineteen two thousand two, Judge JEAN GERMAIN, Dean of the Civil Court of St-Marc, who was presented with an habeas corpus request filed by citizen Prosper APRIL, currently held by the National Penitentiary Administration, rendered an ordinance against Mr. Avril, which read as follows:

"The Court, after deliberation according to the law and on the conclusions of the Office of the Prosecutor, hereby declares the complaint filed by Prosper APRIL to be inadmissible."

It is against this ordinance that citizen Prosper AVRIL has filed an appeal for the following reasons:

Unjustified decision of the first judge, inexistence of an arrest warrant nor a committal order served against the appellant by investigative judge Kesner NOEL, and to ask the Court to grant his petition because it is just and supported in fact and in law, to say and declare that the arrest and the detention of citizen Prosper APRIL are completely illegal and arbitrary, that they violate the Constitution and the laws of the Republic in particular articles 24, 24-1, 24-2, 25, 26, 26-1, 26-2, etc. of the Constitution, consequently, to order his immediate release notwithstanding any generally allowed means of recourse.

On his part, the Government Commissioner, following the pleading of the appellant's lawyers, concluded that the petition should be admitted, so that the Court say and declare that the first judge deserves the reproaches which are made to him; consequently, that the Court revokes the lower court's order and reviews the case again, and does what the first judge should have done, that is to accept the complaint filed by Mr. Prosper AVRIL by declaring that his arrest and detention are illegal, order his immediate release, say and declare that the court's final decision will be executed immediately, notwithstanding any grounds for appeal, notwithstanding appeal to the supreme court or defenses to execute, this with all generally legal consequences.

At this phase of the hearing, the Court ordered the deposit of all the documents along with the conclusions of the Government Commissioner and a recess of at least sixty minutes to deliberate.

LAW:

I. - ON THE ADMISSIBILITY OF THE APPEAL

Considering that the quarreled decision was rendered on Thursday September nineteen two thousand two, and served to all parties on October first two thousand two;

Considering that the appeal declaration against that decision took place Wednesday October nine two thousand two, therefore within the legal time;

Considering that a final receipt of the General Tax Office dated 10-9-2002, attests that the fine envisaged by the law was consigned;

Thus considering, that all the formalities required by the law were religiously observed; that the appeal must be admitted.

II. * UNMOTIVATED DECISION OF THE LOWER COURT JUDGE

Considering that the lower court judge stated one of his motives as follows: "because the subpoena to appear before a judge (served to the appellant), was delivered by a qualified officer of the court, in this case an investigating judge, and with regards to article 77 about the Criminal Investigation Code, one cannot consider that the arrest nor the detention of Prosper APRIL were illegal under the pretext that his arrest and his detention were ordered by an investigating judge, and not by an officer of the Prosecutor's Office or one his deputies."

Considering that if the subpoena dated March 7, 2002 signed by Judge HENRY KESNER NOEL bears the name of Prosper AVRIL among the accused, such is not the case for the arrest warrant or the committal order which the lower court judge seems to be referring to in his ordinance to justify the detention of Prosper AVRIL;

Considering that contrary to what the judge stated in his ordinance and with regards to the certificate dated October 07, 2002 obtained from the National Penitentiary, it is precisely under the orders of Mr. Frénot CAJUSTE, Assistant to the Government Commissioner of the city of Saint-Marc, therefore an officer of the Prosecutor's Office; that citizen Prosper AVRIL is incarcerated from this date until today in the National Penitentiary;

Considering therefore that the reproaches thus made to the lower court Judge by Mr. Prosper AVRIL concerning the unmotivated nature of his decision are absolutely justified;

III. * INEXISTENCE OF NEITHER AN ARREST WARRANT NOR A COMMITTAL ORDER

Considering that the appellant has claimed that there is no arrest warrant or a committal order against him, whereas he has been incarcerated since April 12, 2002, which represents more than six months; Considering that there exists only a subpoena dated 7 March 2002 asking Prosper APRIL to appear before investigating Judge Henry Kesner NOEL; That only this judge or another magistrate of this same city, duly appointed to replace him, could have converted this subpoena into a committal order, and not an officer of the Prosecutor's Office as Assistant Government Commissioner Frénot CAJUSTE did it;

Considering therefore that this last magistrate having no jurisdiction to make such a conversion, Mr. Prosper AVRIL is not wrong to complain about a long detention without the existence of a legal warrant against him; that consequently it is necessary to declare this detention to be illegal and arbitrary and to order his immediate release;

FOR THESE REASONS

The Court, on the conclusions of the Prosecutor, receives the petition for appeal dated Wednesday October nine two thousand two against the ordinance of Thursday September nineteen two thousand two; declared that he was wrongfully judged and his appeal is justified; consequently, revokes the ordinance of the lower court referred to above; declares also that this ordinance is not justified, that Mr. Prosper AVRIL is held also arbitrarily and illegally since April twelve two thousand two (April 12, 2002) at the National Penitentiary; Thus orders his immediate release, and that this decision be executed immediately, notwithstanding appeal to the supreme court or defenses to execute; delegates the President of the Court of Appeals of Port-with-Prince to commit an usher of this Court to for the distribution of this decision.

GIVEN BY US, Hugues Saint PIERRE, Moise COQ and Windelle COQ SAINT-LOUIS, respectively President and Judges at the extraordinary hearing held on Tuesday October Twenty-two two thousand two, year 199th of our National Independence, in the presence of Me Roland PAPLIUS, Government Commissioner Close the Court and with the assistance of citizen Roger BRACE, clerk of the court;

In witness whereof, the minutes of this judgment are signed by the President, the aforesaid Judges of the Court of Appeal of the city of Gonaïves and the Clerk.

Thus signed: Holy Hugues PIERRE, President, Brace COCK and Windelle HOLY COCK LOUIS, Judges.

arrest warrant nor a committal order served against the appellant by investigative judge Kesner NOEL, and to ask the Court to grant his petition because it is just and supported in fact and in law, to say and declare that the arrest and the detention of citizen Prosper APRIL are completely illegal and arbitrary, that they violate the Constitution and the laws of the Republic in particular articles 24, 24-1, 24-2, 25, 26, 26-1, 26-2, etc. of the Constitution, consequently, to order his immediate release notwithstanding any generally allowed means of recourse.

On his part, the Government Commissioner, following the pleading of the appellant's lawyers, concluded that the petition should be admitted, so that the Court say and declare that the first judge deserves the reproaches which are made to him; consequently, that the Court revokes the lower court's order and reviews the case again, and does what the first judge should have done, that is to accept the complaint filed by Mr. Prosper AVRIL by declaring that his arrest and detention are illegal, order his immediate release, say and declare that the court's final decision will be executed immediately, notwithstanding any grounds for appeal, notwithstanding appeal to the supreme court or defenses to execute, this with all generally legal consequences.

At this phase of the hearing, the Court ordered the deposit of all the documents along with the conclusions of the Government Commissioner and a recess of at least sixty minutes to deliberate.

LAW:

I. - ON THE ADMISSIBILITY OF THE APPEAL

Considering that the quarreled decision was rendered on Thursday September nineteen two thousand two, and served to all parties on October first two thousand two;

Considering that the appeal declaration against that decision took place Wednesday October nine two thousand two, therefore within the legal time;

Considering that a final receipt of the General Tax Office dated 10-9-2002, attests that the fine envisaged by the law was consigned;

Thus considering, that all the formalities required by the law were religiously observed; that the appeal must be admitted.

II. * UNMOTIVATED DECISION OF THE LOWER COURT JUDGE

Considering that the lower court judge stated one of his motives as follows: "because the subpoena to appear before a judge (served to the appellant), was delivered by a qualified officer of the court, in this case an investigating judge, and with regards to article 77 about the Criminal Investigation Code, one cannot consider that the arrest nor the detention of Prosper APRIL were illegal under the pretext that his arrest and his detention were ordered by an investigating judge, and not by an officer of the Prosecutor's Office or one his deputies."

Considering that if the subpoena dated March 7, 2002 signed by Judge HENRY KESNER NOEL bears the name of Prosper AVRIL among the accused, such is not the case for the arrest warrant or the committal order which the lower court judge seems to be referring to in his ordinance to justify the detention of Prosper AVRIL;

Considering that contrary to what the judge stated in his ordinance and with regards to the certificate dated October 07, 2002 obtained from the National Penitentiary, it is precisely under the orders of Mr. Frénot CAJUSTE, Assistant to the Government Commissioner of the city of Saint-Marc, therefore an officer of the Prosecutor's Office; that citizen Prosper AVRIL is incarcerated from this date until today in the National Penitentiary;

Considering therefore that the reproaches thus made to the lower court Judge by Mr. Prosper AVRIL concerning the unmotivated nature of his decision are absolutely justified;

III. * INEXISTENCE OF NEITHER AN ARREST WARRANT NOR A COMMITTAL ORDER

Considering that the appellant has claimed that there is no arrest warrant or a committal order against him, whereas he has been incarcerated since April 12, 2002, which represents more than six months; Considering that there exists only a subpoena dated 7 March 2002 asking Prosper APRIL to appear before investigating Judge Henry Kesner NOEL; That only this judge or another magistrate of this same city, duly appointed to replace him, could have converted this subpoena into a committal order, and not an officer of the Prosecutor's Office as Assistant Government Commissioner Frénot CAJUSTE did it;

Considering therefore that this last magistrate having no jurisdiction to make such a conversion, Mr. Prosper AVRIL is not wrong to complain about a long detention without the existence of a legal warrant against him; that consequently it is necessary to declare this detention to be illegal and arbitrary and to order his immediate release;

FOR THESE REASONS

The Court, on the conclusions of the Prosecutor, receives the petition for appeal dated Wednesday October nine two thousand two against the ordinance of Thursday September nineteen two thousand two; declared that he was wrongfully judged and his appeal is justified; consequently, revokes the ordinance of the lower court referred to above; declares also that this ordinance is not justified, that Mr. Prosper AVRIL is held also arbitrarily and illegally since April twelve two thousand two (April 12, 2002) at the National Penitentiary; Thus orders his immediate release, and that this decision be executed immediately, notwithstanding appeal to the supreme court or defenses to execute; delegates the President of the Court of Appeals of Port-with-Prince to commit an usher of this Court to for the distribution of this decision.

GIVEN BY US, Hugues Saint PIERRE, Moise COQ and Windelle COQ SAINT-LOUIS, respectively President and Judges at the extraordinary hearing held on Tuesday October Twenty-two two thousand two, year 199th of our National Independence, in the presence of Me Roland PAPLIUS, Government Commissioner Close the Court and with the assistance of citizen Roger BRACE, clerk of the court;

In witness whereof, the minutes of this judgment are signed by the President, the aforesaid Judges of the Court of Appeal of the city of Gonaïves and the Clerk.

Thus signed: Holy Hugues PIERRE, President, Brace COCK and Windelle HOLY COCK LOUIS, Judges.                                                                                                                                                                             

Posted October 2, 2002 

In memory of the eleventh anniversary of the bloody Coup d'Etat of September 30, 1991, the National Coalition for Haitian Rights (NCHR) reflects on the negative impact of this date on the struggle for change and the establishment of democracy in Haiti.

On September 30, 1991, forces, hostile towards the winds of change, overthrew and sent into exile then President Jean Bertrand Aristide, and proceeded to establish a reign of terror across Haiti that lasted for three (3) years. The statistics of those years are overwhelming: death, disappearances, torture, rape, theft, pillaging, and destruction by fire characterize these Coup years.

Eleven (11) years later, despite the return to power of the former priest of Saint Jean Bosco, the demands for justice from the Haitian people remain ignored. Until today, with the exception of the Trial of Raboteau, the people of Haiti have not enjoyed the right to any form of due process. The criminals of the Coup continue to roam the streets.

Furthermore, NCHR is indignant to witness the reality that yesterday's victims have become today's perpetrators. If FRAPH has officially been dissolved, now armed gangs increasing in number benefit from the complicity of the ruling power, terrorizing the country with absolute impunity, just as the members of FRAPH. Threats, political persecution, illegal arrests, arbitrary detentions, summary executions, and disappearances are common practices today, just as they were that long night of the Coup. The recent disappearance of Félix BIEN AIMÉ and his two (2) friends, as well as the suspicious and illegal arrest of Rosemond JEAN, leader of an association for cooperative victims, are clear testimonies to this reality.

NCHR strongly disapproves of these new attempts on the part of the government to destabilized and silence the associative movement, as witnessed in the arbitrary arrest of the spokesman of the Coordination National des Sociétaires Victimes (CONASOVIC), Mr. Rosemond JEAN.

NCHR is extremely concerned by the climate of violence and intolerance that has saturated the country. It is disturbed by the arrogance of armed gangs, political leaders' little concern for justice and the fight against impunity, and the lack of a consented effort on the part of Coup survivors to establish a State of Law in Haiti.

Was the resistance of the Coup d'Etat in vain?

Additionally, the sacrifices of the Haitian people and those of the international community for the purposes of re-establishing constitutional order have not been able to create the stable and secure environment that was hoped for - an environment that is a necessary condition for the socio-economic development of the country.

NCHR vehemently condemns the new wave of threats uttered against the independent press, namely those directed against Radio Kiskeya, Radio Ibo, and Radio Caraïbes FM.

These new threats against the independent press are coming from the head of state, following a partisan meeting at the former ranch of dictator Jean-Claude DUVALIER. During this meeting, members of the independent press were labeled enemies to be defeated, enemies comparable to those who orchestrated the military coup of 1991. Such threats are unacceptable and they are a clear call to violence. Furthermore, NCHR has not forgotten that the repulsive murders of Jean L. DOMINIQUE and Brignol LINDOR were preceded by such threats.

It is equally scandalous to insinuate that all journalists who refuse to carry out government propaganda are from the same cast as those who orchestrated the horrific Coup d'Etat of 1991.

It is NCHR's sincere hope that it is not a methodical, mechanical and subversive force that is driving these repeated attacks against the press and civil society groups.

In conclusion, NCHR invites the ruling power to acknowledge the degree of deception against the majority of the Haitian people, and to listen to their desperate and just demands for justice, freedom, security and democracy.