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June 2005


Justice Dodged, Part II.


On April 21, 2005 the Cour de Cassation, Haiti's highest court, threw out the convictions of sixteen people found guilty by a jury in the Raboteau massacre case, Haiti's most celebrated trial ever. The decision of the Cour de Cassation is a remarkable document because it not only reverses a famous, and closely watched trial, but it also invalidates an entire article of the 1987 Constitution, on the basis of a technicality that the defendants had never objected to, in a document that several courts, including the Cour de Cassation itself, had already approved, and in a case that the Court had sat on for over four years.

Twenty-two defendants were tried by a jury in the Raboteau case over six weeks, from September 29 to November 9, 2000. The original determination that the case should have been sent to a jury was made by a trial court judge in 1999, and was confirmed by both the Court of Appeals of Gona´ves and the Cour de Cassation itself in 2000. That determination was never contested by the defendants' lawyers at trial or in any of their three appeals.

The Raboteau trial was the most observed trial in Haitian history. Haitian human rights groups, the UN Civilian Mission in Haiti and journalists observed every day of trial. Most of it was broadcast over national television and radio. The defendants were all represented, by a total of ten lawyers. The defense lawyers adopted a highly aggressive strategy, making numerous challenges throughout the trial. They challenged the selection of jurors, the evidence, the plaintiffs, the jury instructions and the hours of trial. The lawyers did not, however, take exception to the decision to send the case to the jury, and the issue was never mentioned by any of the national or international observers.

On November 8, 2000, the jury convicted sixteen of the defendants. The United Nations called the trial "a landmark in the fight against impunity." Human rights groups in Haiti and throughout the world called it a great victory for justice, because it was fair to defendants and victims alike. The Haitian justice system rightfully took pride in having accomplished one of the most important human rights trials in the Americas over the last twenty years.

Those convicted in the trial appealed it immediately, although not because they objected to a jury- they did not mention it. The victims' lawyer responded to the appeal, and the matter was placed in the Cour de Cassation's hands in early 2001. Everyone expected the Court to decide the appeal quickly, within three months at the most, because the appeal concerned people who were in jail. By the middle of 2001, when there had been no decision, the victims and their lawyer became worried, and urged the Court to act promptly. The Court did not decide the case in all of 2001, nor all of 2002, or 2003. The victims became afraid that the Court was keeping the case open until there was a change of government that would allow an illegal dismissal. So they petitioned the Court, they held press conferences, they pressured the Minister of Justice, they even protested outside of the Palace of Justice. But nothing happened.

By March 1, 2004, when the head of the Cour de Cassation was installed as the interim President, none of the sixteen people convicted at the Raboteau jury trial were in prison. Most had escaped, some had either served their time or died in prison. Despite their absence, and despite Haiti's turmoil, the Cour de Cassation now found time to review the case.

The Cour de Cassation claimed that the case should not have been tried by a jury because a 1928 law requires a trial without jury for all cases of délits connexes (multiple but related crimes). The judge who decided the case should go to a jury back in 1999 knew about the 1928 law, but said that it conflicted with Article 50 of the 1987 Constitution that requires a jury trial for all crimes de sang (literally "blood felonies," in Haitian practice murder, parricide, infanticide and poisoning). In Haiti, as in the U.S., if the Constitution conflicts with an ordinary law, the Constitution takes precedence.

The Court of Appeals, and the Cour de Cassation both examined the document containing this decision in 1999 and 2000. Both approved the document, neither mentioned that the jury issue was even a problem.

After the trial, and a four and one-half year wait, the Cour de Cassation found that the Constitution did not apply, because it "did not include a definition of crimes de sang [or] explain what it meant by crimes de sang." The Court did not try to claim that the massacre was not a crime de sang under Haitian law or practice, only that Article 50 does not define the term.

The Court does not explain why the failure to define crimes de sang makes Article 50 inapplicable, even though the decision appears to void an entire article of the Constitution. The Court does not try to explain what could be a crime de sang if this case of multiple killings and aggravated assaults is not.

The lack of a definition of crime de sang is not unusual. Haiti's Constitution, like the most constitutions, including the U.S. Constitution, does not define such terms, leaving it to the courts and the legislature to work out the details. The Constitution does not define "freedom of association", "private property" or many other terms that can be subject to interpretation, but the Court has not determined that these rights do not exist.

If the Cour de Cassation wanted guidance on the meaning of crime de sang, it could have looked to the very 1928 law that required a judge trial for complex cases. That law required a jury for a set of serious crimes- murder, parricide, infanticide and poisoning. These four crimes are treated together in the Penal Code, all carry the same penalty, and are in fact referred to in Haitian legal usage as crime de sang. The trial court judge, using Haitian practice, determined that the voluntary homicides charged in the Raboteau Massacre case were crimes de sang, and in its 2000 reviews of the ordonnance, the Cour de Cassation never questioned this finding.

Those wondering why the Cour de Cassation made such a curious decision on a case in which everyone who could benefit was already free need only to look at who celebrated the decision. Immediately after the decision became public, the lawyer of Louis Jodel Chamblain, the co-founder of the FRAPH death squad that terrorized Haiti in 1993 and 1994, and a leader of the insurgency that attacked from the Dominican Republic in 2004, announced that his client would be free soon. In fact, a judge in Gona´ves has already written the liberation order, although it has not been implemented.

The problem with Chamblain benefiting from Cour de Cassation's decision is that it never concerned him. Chamblain was not tried in the original Raboteau jury trial, he was convicted later in an in absentia trial of the same case with no jury. The Court's decision, by its own terms, applies only to the jury trial for the Raboteau massacre, not to the in absentia trial. The in absentia trial is not even mentioned in the April 21 decision.

The Raboteau decision is not the first time Chamblain has benefited from a curious legal decision. Last August, the interim government held a retrial in the 1993 killing of Antoine Izmery, Chamblain's other criminal conviction. The prosecution did not present a single witness or any new evidence, and the jury found Chamblain not guilty. Amnesty International called last August's trial "an insult to justice," the Washington Post "sham justice," the New York Times an "ugly example of a Haitian government that shields its political gangster allies from justice." Even the U.S. State Department was "deeply concerned" over the acquittal, and "deeply regret[s] the haste with which their cases were brought to retrial."

In a September 2004 column about Chamblain's acquittal in the Izmery trial, titled "Justice Dodged," I anticipated that an attack on the Raboteau case was next. I was wrong about how it would be done, I predicted there would be a re-trial, not a dismissal by the Cour de Cassation. I called the retrial "a test of the international community's commitment to justice in Haiti," and said that if it does not meet the same high standards of the original Raboteau trial, "the international community must respond decisively, and with actions rather than just words."

The international community has not responded, even with words, to this latest landmark in the systematic dismantling of Haiti's justice system, the elimination of the progress for which so many struggled during nine years of democracy. The conclusion from last September's column, is now even more true: the "Izmery trial started turning back the clock, away from this progress to a time when guns meant more than laws, and trials were theater pieces that confirmed a result pre-ordained by the powerful. The clock will continue to go backwards, until we stop it."

[Source: By Brian Concannon, Boston Haitian Reporter, June 2005. Jr, Brian Concannon Jr. directs the Institute for Justice and Democracy in Haiti (www.ijdh.org). He lived in Haiti from 1995 to 2004, working for the Bureau des Avocats Internationaux, which represented the victims of the Raboteau Massacre.]

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