Haiti: Procedures from the time a criminal complaint is filed until a judgment is rendered (2014-June 2016)

Research Directorate, Immigration and Refugee Board of Canada, Ottawa

Criminal complaint procedures are set out in the Code of Criminal Procedure (Code d'instruction criminelle). The code is attached to this Response. For information on the different types of complaints that can be filed with the police or judicial authorities in Haiti, see Response to Information Request HTI104873.

1. General Complaint Process

In correspondence sent to the Research Directorate, a representative of the National Human Rights Defense Network (Réseau national de défense des droits humains, RNDDH), a human rights NGO in Haiti whose headquarters are in PortauPrince (RNDDH n.d.), stated the following:

[translation]

Our legislation sets out three (3) levels of offences that can be grounds for a complaint: petty offences, misdemeanours and felonies. The injured party or victim of a crime (violent or not) may file a complaint at a police station, the peace court or the Public Prosecutor's Office (Parquet) (for a crime considered a serious offence) (ibid. 1 June 2016).

The representative added that [translation] "[complaints] are handled the same way throughout the country (across the 18 jurisdictions)" (ibid.).

2. Investigations and Arrests

In a document on its website, written for Americans who have been victims of crime in Haiti, the Embassy of the United States in PortauPrince states that the police need to obtain an arrest warrant from a judge before anyone can be arrested, unless a perpetrator is caught in the act of committing a crime or when there is a suspicion of a narcotics violation (US n.d.). In correspondence with the Research Directorate, a former investigative judge and academic director of the Haitian School of Magistrates (École de la magistrature d'Haïti) also stated the following:

[translation]

When someone is caught in the act of committing a crime, the case is sent to the [P]ublic Prosecutor's Office, which conducts the preliminary investigation [and proceeds with] the arrest. The case is then forwarded to the investigative judge, the legal authority who decides on charges. The [P]ublic Prosecutor's Office is very often assisted by the [Central Directorate of the Judicial Police (Direction centrale de la police judiciaire, DCPJ)] in serious criminal matters (kidnapping, drugs, etc.). (Former judge 30 May 2016)

According to the US embassy, the DCPJ or the Haitian National Police (Police nationale d'Haïti, PNH) are responsible for investigating crimes (US n.d.). The RNDDH representative said that the DCPJ is an [translation] "active directorate of the National Police," which is "directly ancillary to the judicial authorities" (1 June 2016). Similarly, the former judge noted that the DCPJ [translation] "is an investigative institution attached to the police that serves as an officer of justice to assist the Public Prosecutor's Office in preliminary investigations" (30 May 2016).

The US embassy notes that "many crime investigations never result in the arrest of a suspect," but that there is no time limitation on a case until it is solved (US n.d.). The same source also says that "the [PNH] investigator in charge of the case will be the main contact for the victim to get information about the progress of the investigation" (ibid.).

3. Post-arrest Procedure

The RNDDH representative stated that [translation] "once a case is referred to the police, they must, within 48 hours of a suspect's arrest, bring the suspect before a judicial authority (peace court, Public Prosecutor's Office or investigation office) depending on the circumstances of the arrest" (1 June 2016). Similarly, according to the US embassy, the law requires that "the police present a report to a judge within 48 hours of the arrest" and that "[w]ithin 48 hours after arrest, the accused must appear before a Justice of the Peace (Juge de Paix) or the prosecutor (Commissaire du Gouvernement), and will be preliminarily charged or released" (US n.d.).

The website of the US embassy notes that formal charges must be laid within 48 hours after an arrest (ibid.). The same source also states that the police may deny a prisoner access to a lawyer during the first 48 hours after arrest to take care of administrative matters, but that after 48 hours, the accused must be allowed to see a lawyer and be informed of the charges (ibid.).

The embassy's website explains,

[t]he Haitian judicial system has two courts of first action: the Peace Tribunal (Tribunal de Paix) and the First Action Tribunal (Tribunal de Premiere Instance). The Peace Tribunal is for relatively simple cases, both civil and criminal. The First Action Tribunal has several divisions: the Correctional Court (Tribunal Correctionel) hears cases relating to major crimes such as armed robbery; the Criminal Court (Tribunal Criminel) is devoted to more serious crimes such as drug offenses and murder; and the Civil Court (Tribunal Civil), the Commercial Court (Tribunal Commercial), the Labor Court (Tribunal de Travail) and the Property Court (Tribunal Terrain) hear respectively civil, commercial, labor and property disputes. Trial is normally by judge, although a trial by jury is possible in cases of very serious crimes such as murder. (ibid.)

The same source also reports that a prosecutor generally decides which tribunal should hear a case (ibid.).

4. Minor Offences and Roles of Justices of the Peace

According to the former investigative judge, [translation] "If the complaint involves a petty offence (a minor offence), the justice of the peace hears the case and imposes a sentence" (30 May 2016). The Code of Criminal Procedure provides that the justice of the peace will act as a police court to deal with petty offences (Haiti 1826, Art. 125). The US embassy also notes that "minor offenses can often be dealt with … without action from the Investigative Judge" and adds that "[f]or misdemeanours not submitted to the Investigative Judge, it is the Prosecutor who determines whether the case will go to trial" (US n.d.). An article in the Haitian daily Le Nouvelliste reports that the justice of the peace [translation] "is a fullfledged judge" in civil matters "as well as in criminal matters, but only with respect to petty offences" (Le Nouvelliste 10 Sept. 2015). The article adds that, when [translation] "seized with a misdemeanour or felony case, [the justice of the peace] becomes a judicial police officer, ancillary to the prosecutor" (ibid.).

Similarly, the RNDDH representative specified that [translation] "the justice of the peace, a local magistrate, who is seized with a criminal case has no jurisdiction under the law to decide the case [and] must simply prepare the preliminary information and forward the matter to the Public Prosecutor's Office" (1 June 2016). The US embassy, however, notes the following:

Haitian judges sometimes improperly apply criminal procedures to civil cases. Consequently, arrests are often used in civil cases to compel a second party to appear before a judge or to pay debts or a settlement. (US n.d.)

Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

5. Misdemeanours and Felonies

The website of the US embassy explains that "[t]he Haitian legal system differentiates between correctional offenses or misdemeanors (with sentences ranging from 6 months to 3 years) and serious offenses [felonies] (with sentences ranging from 3 years on up)" (US n.d.). According to the former investigative judge, [translation] "[i]f the matter is a misdemeanour, the prosecutor sends the case to the correctional tribunal to be tried there" (Former judge 30 May 2016). Sources report that, with respect to felonies, the prosecutor sends the matter to the investigation office through an indictment (ibid.; RNDDH 1 June 2016).

According to the US embassy, "[t]he Prosecutor (or 'Commissaire du Gouvernement') is responsible for filing charges against the accused," and "[a]fter the accused has been formally charged, the Prosecutor forwards the case to an Investigative Judge (Juge D'Instruction)" (US n.d.). The same source also states, "in most cases involving serious crimes, the prosecutor will first send the file to an investigative judge (Juge d'Instruction) who will determine if the facts support referral to trial" and that "[f]or serious offenses (as well as more complex misdemeanors), the Investigative Judge has the final say over whether a case goes to trial" (ibid.).

The former investigative judge explained that [translation] "the investigative judge does the investigative work and drafts the final recommendation. The recommendation may be for referral or dismissal" (30 May 2016). Sources note that an investigative judge must conclude the investigation within two months (RNDDH 2 Sept. 2014, 3; US n.d.). The US embassy explains that following the investigation,

the Investigative Judge forwards his findings and recommendations back to the Prosecutor, who has the option to agree with the recommended action, to appeal to the Investigative Judge to alter his opinion, or to ask for further investigation. (ibid.)

Also according to the same source,

Once the investigation is completed and the prosecutor determines there is enough evidence, he makes a recommendation of formal charges to the investigative judge who issues an indictment. A copy of the indictment is served on the accused and a trial is scheduled. The issuance of the indictment can be appealed and an application for provisional release of the accused can be made. (ibid.)

Similarly, the RNDDH representative stated the following:

[translation]

The investigative judge must conduct an investigation to shed light on the matter. In the end, after the file goes back and forth with the Public Prosecutor's Office, the investigative judge [will produce] an order setting out their opinion (dismissal or referral to a trial court) based on the final recommendation of the prosecutor.

This order is forwarded to the prosecutor, who may draft a supplementary recommendation while returning the order to the investigative judge for further investigation if the prosecutor feels that more information is required;

OR

The prosecutor may serve the indictment on which a court is to render a decision and indicate which article of the criminal code was violated. The indictment will also mention the summons to appear before the court named in the order and the appearance procedures for the detained individual.

Finally, in the event of an order for dismissal, the person in custody must be released. However, if it is an order for referral, the file must be forwarded to the trial court (criminal trial with or without a jury). (RNDDH 1 June 2016)

6. Court of First Action

According to the website of the US embassy,

Jurisdiction over criminal cases belongs to The Tribunal de Premiere Instance. While the same court hears the case, the official name of the Court changes depending on the type of case. For example, for misdemeanors, the Tribunal de Premiere Instance will be referred to as the Correctional Court or "Tribunal Correctionel." For serious offenses, it will be referred to as the Criminal Court or "Tribunal Criminel." (US n.d.)

The RNDDH representative explained that the senior judge of the court of first action, [translation] "as the head of this body, works with the Public Prosecutor's Office to organize criminal trials where defendants whose cases are complete are eligible to be judged," but noted that some cases do not go before the criminal courts in the time frames provided for by legislation (RNDDH 1 June 2016). Similarly, the website of the US embassy notes that "[t]he victim can expect the case to spend the longest amount of time in the pretrial period. …[T]he speed with which a case goes to trial is often dependent on the skill of the attorneys" (US n.d.).

7. Trial and Sentencing

The information in this section comes from the website US embassy(US n.d.). Trials are generally conducted by a single judge, although murder cases require a trial by jury. While the judicial process is lengthy, "only the 'audience' [hearing] and the 'judgment' [verdict] are held publicly at the Parquet." The hearing, in which the judge hears the case, "is required to last at least three hours, usually from ten in the morning until one in the afternoon." The verdict and sentencing are pronounced at two in the afternoon, and if the accused is found guilty, they occur at the same time. The prosecutor arranges for the sentence to be carried out, which can take two or three days.

After a decision is rendered by one of the courts of first action, it may be appealed to the Appellate Court (Cour d'Appel) and then to the Supreme Court (Cour de Cassation) and, in some cases, to Parliament itself (Haute Cour de justice). The parties have 10 days to file an appeal.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

Former investigative judge and academic director of the École de la magistrature. 30 May 2016. Correspondence sent to the Research Directorate.

Haiti. 1826 (amended in 1988). Code d'instruction criminelle. [Accessed 10 June 2016]

Le Nouvelliste. 10 September 2015. Jean-Robert Fleury. "Le tribunal de paix et ses attributions." [Accessed 16 June 2016]

Réseau national de défense des droits humains (RNDDH). 1 June 2016. Correspondence sent to the Research Directorate by a representative.

_____. 2 September 2014. Ordonnance du Juge Lamarre BELIZAIRE relative au dossier des frères FLORESTAL : un avilissement pour la justice haïtienne. [Accessed 10 June 2016]

_____. N.d. "Vision & Mission." [Accessed 8 June 2016]

United States (US). N.d. Embassy of the United States, Port-au-Prince, Haiti. "Victim of Crime Assistance." [Accessed 24 May 2016]

Additional Sources Consulted

Oral sources: Bureau des droits humains en Haïti (BDHH); Centre de recherche et d'information juridique; Haiti - Police nationale d'Haïti; Institute for Justice & Democracy in Haiti; Lawyers Without Borders Canada.

Internet sites, including: AlterPresse; Canada - Embassy in PortauPrince; Canada Haiti Action Network; France - Embassy in Port-au-Prince; Front Line Defenders; GlobaLex; Haiti - ministère de la Justice et de la Sécurité publique, Police nationale d'Haïti; Haitian Resource Development Foundation; Haïti lutte contre l'impunité; Haïti Référence; Haiti Press Network; International Crisis Group; Radio Métropole Haïti; Radio Télévision Caraïbes; Scoop FM; United Nations - MINUSTAH; United Kingdom - Embassy in PortauPrince; Vera Institute of Justice.

Attachment

Haiti. 1826 (amended in 1988). Code d'instruction criminelle. [Accessed 10 June 2016]