Republic of Haiti
Haiti is a party to a number of international treaties that support the human rights and individual liberties of Haitian citizens. Haiti’s Constitution and its criminal laws also explicitly address these rights and protections related to pre-trial detention, specifically. However, even though Haiti recognizes the importance of providing human rights safeguards through its constitution, domestic laws and as a signatory to international treaties;, numerous reports and at least one judgment by an international tribunal have found that extended pre-trial detention is still common in Haiti. Haiti’s criminal justice system is rife with corruption and is known for targeting economically disadvantaged Haitians and political dissidents, the extreme overcrowding conditions within its prisons, and prolonged pre-trial detention times. See statistics infra.
The problem of pre-trial detention times appears the result of systemic deficiencies in Haiti’s criminal justice system. Haiti’s justice system is grossly under-staffed, under-trained, and under-funded. “[T]he slow pace of proceedings, the paucity of the legal aid . . . [to] facilitate habeas corpus proceedings . . . and the lack of judicial oversight” contribute to the back-log of cases. The record-keeping is all done by hand, which further contributes to the long wait times.
As of a 2014 report by the United Nations Human Rights Committee, there remains a “[d]isproportionate use of pretrial detention for excessive periods and [a] lack of alternatives to pretrial detention.” The Committee further noted that an organized approach is still lacking to address the problems with Haiti’s judicial system and that “there is no specific information on the approach and work of the High Council of the Judiciary and judges to address effectively the issue of prolonged pretrial detention.”
General Status of Rights in The Republic of Haiti
Haiti has a long history of human rights violations and political struggles. Haiti’s population has gone through significant turmoil over the last several decades as it has recovered from the alleged crimes against humanity committed by former dictator Jean-Claude Duvalier. Following the exile of Duvalier to France, a new Constitution of the Republic of Haiti was approved in March, 1987. During the late 1980s and early-to-mid 1990s Haiti developed its democratic election system, but suffered setbacks through a coup d’etat, resulting embargos, and civil unrest.
Today, “Haiti is a constitutional republic with a multi-party political system.” Although most of the Haitian population speaks Creole, both French and Creole are the official languages in Haiti and judicial proceedings are almost always conducted in French.
In 2011, Michel Martelly was elected President through what “international observers deemed [a] generally free and fair” electoral process. Although many of the principles are in place to provide Haitian citizens individual liberties, the system, in practice, fails to meet the ideals as outlined in the laws and treaties below.
Domestic Laws Governing Pretrial Detention
Relevant provisions of the Constitution of Haiti with respect to pre-trial detention rights are listed below. (See French language version of the Constitution of the Republic of Haiti and the 2009 Amendment; the Creole language version of the Constitution of the Republic of Haiti; and the English language version of the Constitution of the Republic of Haiti.)
Section B of the Constitution of the Republic of Haiti is devoted to protecting individual liberties.
- According to Article 24, “individual liberty is guaranteed and protected by the State.”
- Article 24-2 requires a “written order of a legally competent official” to detain a person, except where “the perpetrator of a crime is caught in the act.”
- Article 24-3 lists the requirements for executing a lawful order. A lawful arrest must (a) notify the detained person of the reason for the detention and the governing law, (b) provide notice to the accused, (c) provide notification of right to counsel, (d) only detain persons during lawful hours for executing a search and arrest, and (e) arrest only that person accused (no person may be arrested in the place of another).
- Article 25 prohibits the use of unnecessary force during apprehension or detention.
- Article 26 specifically addresses the time allowed for a person to remain in pre-trial detention: “No one may be kept under arrest more than forty-eight (48) hours unless he has appeared before a judge asked to rule on the legality of the arrest and the judge has confirmed the arrest by a well-founded decision.”
Section J of the Constitution of the Republic of Haiti is devoted to protecting the right to security.
- Article 44 states that persons in pre-trial detention must be held separately from convicted criminals.
- Article 44-1 also notes that “[p]risons must be operated in accordance with standards reflecting respect for human dignity . . . .”
Penal Code of Haiti
Haiti’s criminal code is available here in multiple languages.
Code of Criminal Procedure
Haiti’s Code of Criminal Procedure, or Code d’Instruction Criminelle, was originally enacted in 1826.
“The Code of Criminal [Instruction] allows for release on bail pending trial.” [Source: See Chapter VIII, Articles 95-108.] However, a 2011 review of human rights in Haiti by Amnesty International reports that “this measure is seldom applied. Detainees remain in prison during the investigation of the crime they are alleged to have committed. This often exceeds the three-month time limit provided by law.” [Source: See p. 6.] Under Haitian law, “[d]efendants are entitled to a trial within four months, or they have the right to contest their detention in court.” [Source: See tit. II, art. 7, Institute for Justice and Democracy.] Haiti’s criminal laws also require that prisons house men and women, adults and juveniles, and accused and convicted persons in segregated living areas. However, in spite of these laws, persons of different ages, as well as the accused and the convicted, are reportedly still being housed in the same cells of some prisons. A 2012 report by the Institute for Justice and Democracy in Haiti found that, “[a]ccused persons are not segregated from convicted persons and are subjected to the same prison conditions and treatment as the convicted . . . Outside of Port-au-Prince there are no separate prisons for children, and children are often put in the same cells as adults.” Note, however, that accurate reporting of whether or not persons of different gender and age are appropriately segregated varies. A 2014 United States Department of State report also found that because of the lack of proper documentation within Haiti’s criminal justice system, the exact ages of persons being detained is not always ascertainable.
Other Law Resources
Finding searchable, up-to-date versions of Haiti’s laws is particularly challenging. The following resources serve as additional guides, but note that many of the sources available through the links are only in French.
- The Digital Library of the Caribbean has a collection of Haitian law and general legal materials.
- The Library of Congress Guide to Law Online has multiple resources for directing the reader Haiti’s laws.
International or Multilateral Treaties Concerning Arbitrary Detention
Haiti is a party to numerous international agreements regarding human rights and pretrial detention including:
- The International Covenant on Civil and Political Rights (ICCPR), ratified 06 February 1991
- The American Convention on Human Rights, ratified 14 September 1977
- The Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, signed 16 August 2013
The International Covenant on Civil and Political Rights (ICCPR)
Click here to see Pretrial Rights International’s summary of pretrial detention rights under the ICCPR.
In 2012, the United Nations’ Human Rights Committee reviewed reports regarding the Haitian Government’s efforts to fulfill its obligations under the ICCPR. The committee found the following state of affairs with respect to relevant ICCPR articles.
Article 7 – Prohibition of torture and other cruel, inhuman or degrading treatment: Even though “Article 25 of the Haitian Constitution prohibits the use of any unnecessary force or restraint in the apprehension of a person or in keeping him under arrest . . . torture is not defined as an offence under Haitian law.” The report highlights a case in 2011 where a prisoner in pre-trial detention died during interrogation.
Article 9 – The right to individual liberty: The report describes the individual liberties guaranteed to Haitians under Chapter II, Section B, of Haiti’s Constitution. See supra. However, the report found that these individual liberties are not fully respected in Haiti. The Haitian government has taken some administrative and legislative steps to address the problem, but extended pre-trial detentions are still common.
Article 10 – Persons deprived of liberty: Although Haiti’s Constitution requires that persons awaiting trial must be housed separately from those convicted (see supra), the dilapidated conditions of Haitian prisons and the size of existing facilities do not allow for universal compliance. The report found, however, that “young persons are separated from adults, except in the case of girls, who share the same prisons as women.”
The Centre for Civil and Political Rights, based in Geneva, Switzerland, also monitors the ongoing progress of ICCPR compliance by country.
American Convention on Human Rights
The American Convention on Human Rights was ratified by Haiti in 1977. The following portions of articles are relevant to pre-trial detention rights:
“Article 5 – Right to Humane Treatment:
- Every person has the right to have his physical, mental, and moral integrity respected.
- No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.
- Punishment shall not be extended to any person other than the criminal.
- Accused 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.
- Minors while subject to criminal proceedings shall be separated from adults and brought before specialized tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors.”
“Article 7 – Right to Personal Liberty:
- Every person has the right to personal liberty and security.
- 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.
- No one shall be subject to arbitrary arrest or imprisonment.
- Anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him.
- Any 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 or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial.
- Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished. The interested party or another person in his behalf is entitled to seek these remedies.”
Article 8 – Right to a Fair Trial:
- “Every person has the right to a hearing, with due guarantees and within a reasonable time . . . .”
The Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment
The Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment was signed by Haiti on 16 August 2013. While the majority of this agreement refers to prohibitions against torture, its principles are also applicable to other forms of cruel, inhuman, or degrading treatment.
Article 16(1): “Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.”
Case Examples / Practical Observations
Yvon Neptune v. Haiti
The Inter-American Court on Human Rights’ case of Yvon Neptune v. Haiti, May 6, 2008, was the first case of its kind to be tried before the Court. Haiti’s signature to the American Convention on Human Rights (see supra) in 1977 and subsequent acceptance of the Inter-American Courts’ jurisdiction in 1998 allowed the Court to hear this case. (The Court’s decision is also available in French and Spanish.)
Mr. Neptune was Prime Minister of Haiti when he was accused of the massacre of numerous persons on February 11, 2004, the arson of houses and vehicles, the rape of two women, and assault and battery. He was arrested and detained until his release in July, 2006. The accused and other witnesses testified about the conditions that Mr. Neptune endured during his detention and about the criminal proceedings against him.
The Court reviewed the relevant evidence to determine whether the pre-trial detention conditions Mr. Neptune endured, and the actions of the government of Haiti in bringing criminal proceedings against him, were consistent with the American Convention on Human Rights. The Court held that The Republic of Haiti violated the following articles of the American Convention: Articles 8(1) and 25 (Right to a Fair Trial and Judicial Protection); Article 7 (Right to Personal Liberty); Article 9 (Freedom from Ex Post Facto Laws); and Article 5 (Right to Humane Treatment).
The Court found that Haiti violated Mr. Neptune’s right to a fair trial and judicial protection because Mr. Neptune was criminally prosecuted and imprisoned for more than two years by order of a court that was not legally competent to review his case. [Source: Id. at 15-28.] Haiti violated Mr. Neptune’s right to personal liberty because the State’s failure to promptly take him before a judge or to try him within a reasonable time constituted unlawful and arbitrary detention. [Source: Id. at 28-37.] Haiti violated Mr. Neptune’s right to be free from ex post facto laws because it charged him with “massacre,” which is not an enumerated crime under the Haitian Criminal Code. [Source: Id. at 37-39.] Haiti violated Mr. Neptune’s right to humane treatment because the conditions he was subjected to in prison were unsanitary, his freedom of movement was restricted, and the state failed to separate him from convicted criminals. [Source: Id. at 39-45.] In finding that reparations were owed to Mr. Neptune, the Court awarded $60,000 in pecuniary damages (payable within two years of the judgment) and an additional $30,000 in non-pecuniary damages (payable within one year of the judgment). [Source: Id. at 47-49.] Even though the United Nations Human Rights Council reiterated the findings of the decision in 2011, as of 2013, Haiti still has not paid these judgments to Mr. Neptune.
The Institute for Justice and Democracy in Haiti (IJDH) is a partnership organization between Haitian and United States human rights activists. Their work addresses a variety of human rights issues in Haiti, including prisoners’ rights. The Health and Human Rights in Prisons Project (HHRPP) “combines the organizations’ recognized expertise in law and healthcare, in both delivery of services and advocacy, to holistically address the violations of prisoners’ civil, political, social and economic human rights.”
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The government of Haiti has available in some locations representatives from the Office of the Citizen Protector (OPC). Persons assigned to this post are responsible for maintaining “a presence at several prison facilities and advocat[ing] for the rights and better conditions of prisoners.”
As of October, 2014, there were approximately 10,400 persons being detained in Haitian prisons. The devastation caused by the 2010 earthquake exacerbated Haiti’s problems with respect to prison overcrowding and caused major setbacks for reform to Haiti’s justice system. The earthquake destroyed many facilities forcing inmates into already overcrowded prisons, jails, and other detention facilities. Some of the sites with the worst reported overcrowding include: the National Penitentiary, the Petionville women’s prison, and the prisons in Jeremie, Les Cayes, Port de Paix, Hinche, Petit-Goave, Cap Haitien, Fort Liberte, and Gonaives.
According to a September, 2014, report on prison conditions and pre-trial detention in Haiti, most prisoners wait over a year to see a judge. This wait time translates to approximately fifty to ninety percent of the Haitian prison population waiting to see a judge at any given time. According to the same report, it is also not uncommon for women in pre-trial detention to wait anywhere from three to seven years before going to trial. However, note that the estimates of pre-trial detention times vary by reporting source and also vary by prison location.
A 2012 report by the Institute for Justice and Democracy in Haiti found that “[b]etween 80-90% of all prisoners in Haiti have not been tried.” [Source: See p. 10.] “Some prisoners are held longer than the maximum allowable sentence for their offense, whether convicted or in prolonged pretrial detention. Others remain incarcerated even after they have been acquitted of all charges.” [Source: Id.] The United States Agency on International Development (USAID) conducted an audit of Haiti’s justice system in 2007. Amongst other metrics, it specifically evaluated whether progress had been made in reducing pre-trial detention times by streamlining the flow of cases through the justice system. It found that “the average time spent in pre-trial detention has been consistently increasing since 2004 rather than declining.” [Source: Id. at 5, 7-10.] One effort to address this problem was the creation of a “computerized national system for tracking the movements and status of detainees . . . [for the purpose of alerting] prison officials when a detainee has been in pre-trial detention for a period longer than the maximum possible sentence that they could receive for the crime they were charged for.” [Source: Id. at 6.] The conditions prisoners must endure while awaiting trial is also appalling. “International standards call for 4.5 m2 under normal circumstances and 2.5 m2 in restricted circumstances; in Haiti, however, the space occupied per detainee is less than 0.6 m2 . . . .” This overcrowding frequently results in rodent infestation, poor ventilation, outbreaks of deadly diseases, and countless other sanitation problems, sometimes resulting in death. Pregnant and menstruating women face special problems as a result of the overcrowding – at the Petionville women’s prison, “one pit latrine served 296 inmates.” These conditions case pregnant inmates to reportedly run a high risk of miscarriage.
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