ANNUAL REPORT 2009

(Continuation)

CHAPTER IV

HUMAN RIGHTS DEVELOPMENTS IN THE REGION

HAITI

I.         INTRODUCTION

360.          The Inter-American Commission on Human Rights (“the IACHR” or the “Inter-American Commission”) had decided to include Haiti in Chapter IV of its 2009 Annual Report, on the basis that the situation in that country during the year covered by this report falls within the framework set forth to identify the member states of the OAS whose human rights practices merit special attention.  In the case of Haiti, this framework includes structural situations that seriously affect the enjoyment of fundamental rights enshrined in the American Convention on Human Rights (the “American Convention”) or the American Declaration of the Rights and Duties of Man (the “American Declaration”), and more specifically, grave situations of violence that prevent the proper application of the rule of law; serious institutional crises; processes of institutional change which may have negative consequences for human rights; or grave omissions in the adoption of the provisions necessary for the effective exercise of fundamental rights.  The IACHR has based its analysis on information obtained during its visit conducted in May 2009; on hearings held during its 137^th regular period of sessions in November 2009; on information received from different sectors of the civil society as well as on other reliable publicly available sources.  On November 24, 2009 the IACHR transmitted to the State a copy of a draft of the present section of Chapter IV and requested it to submit its observations within thirty days. At the date of the publication of this report, the IACHR has not received observations from the State.

361.          As mentioned, a delegation of the IACHR headed by Sir Clare K. Roberts, in his capacity as IACHR Rapporteur for Haiti, conducted an in loco visit from May 25 to 29, 2009.[475]  The IACHR expresses its appreciation to the Government and people of Haiti for the full support provided in the conduct of this visit.  The main purpose of the visit, conducted jointly with the United Nations Children’s Fund (UNICEF), was to gather information on citizen security as well as on the situation of human rights and juvenile justice, with a view to the preparation of special reports on these issues.  In Port-au-Prince the delegation met with a range of actors including representatives of the Ministry of Foreign Affairs, the Ministry of Social Affairs and Labor, the Institute of Social Welfare and Research (IBESR), the Minors Protection Division of the National Police, the Central Direction of the Judiciary Police, the Penitentiary Administration, and the Office of Citizen Protection.  The delegation visited the offices of the United Nations Stabilization Mission in Haiti (MINUSTAH), and met with the Tribunal for Children of Port-au-Prince, as well as with local and international non-governmental organizations involved in citizen security and juvenile justice issues in Haiti.  Additionally, the delegation held a conference on the IACHR and the inter-American system of protection of human rights at the State University of Port-au-Prince. 

362.          The delegation conducted visits to the National Penitentiary, the Delmas 33 Police Station, the Delmas 33 Detention Center for Minors, the Pétion-Ville Women’s Prison, and the Le Carrefour Shelter.  On May 27, 2J009 the delegation travelled to the city of Gonaïves, where it met with the Government Commissioner, the Chief of Police, as well as with representatives and organizations of civil society.  Following its visit, the IACHR issued a press release[476] where it expressed its grave concern for the overcrowding and inhumane situation to which the persons detained at the police station of Gonaïves (Toussaint Louverture) --especially children-- were subjected.[477]

II.        PRELIMINARY CONSIDERATIONS

363.          In the first place, the Inter-American Commission highlights the Haitian State’s response to its preliminary version of the Report on The Right of Women to Live Free of Violence and Discrimination in Haiti.[478]  The observations made by the State to the preliminary version of the report were very useful to the analysis of the IACHR, and were incorporated –where pertinent-- in the report, enhancing its substance and allowing a more thorough reflection of the situation.

364.          Notwithstanding the foregoing, as it has observed in several reports on admissibility of individual petitions related to Haiti in the pasts,[479] the IACHR must note that the State generally did not respond to the communications sent by the IACHR in 2009, whether they contain allegations of human rights violations, requests for precautionary measures, or requests for information.  The information received by the Inter-American Commission also indicates that the State uniformly ignores its recommendations as well as the judgments of the Inter-American Court of Human Rights.  Consequently, members of civil society informed the IACHR that the filing of petition before the inter-American system is seen as a long and fruitless procedure, and therefore is not considered an effective means to obtain justice in Haiti.  Likewise, beneficiaries of precautionary measures have informed the Inter-American Commission that the situation of risk to their lives and/or personal security remains after that mechanism is granted by the IACHR.

365.          As will be elaborated further in this section, the IACHR recognizes the severe economic conditions within which the Haitian State has to operate.  However, the Inter-American Commission stresses the importance of being able to count on official information regarding cases and general matters in order to better perform its functions as a supervisory body, and also to cooperate with member States in their duties to protect human rights.  In this regard, the Inter-American Court has affirmed that cooperation by member states represents a fundamental obligation within the international procedural framework established by the inter-American system:

The State controls the means to verify acts occurring within its territory.  Although the Commission has investigatory powers, it cannot exercise them within a State’s jurisdiction unless it has the cooperation of that State.[480]

366.          Bearing this in mind, the IACHR hopes that the State’s response to The Right of Women to Live Free of Violence and Discrimination in Haiti might represent a first step toward enhanced collaboration with the organs of the inter-American system of human rights.

367.          The Inter-American Commission acknowledges the progress achieved in various sectors in 2009, such as security and police reform, and reiterates its engagement and full support to the State and the people of Haiti with a view to developing and improving the mutual collaboration, for a better fulfillment of Haiti’s international human rights obligations towards its inhabitants.

III.      OVERALL PROGRESS AND MAIN EVENTS IN HAITI DURING 2009

.

368.          During 2009 the IACHR observed signs of progress in sectors related to human rights in Haiti.  The IACHR particularly encourages the Haitian State to maintain its commitment and efforts in reinforcing the rule of law and institutions charged with the administration of justice, such as the Haitian National Police (HNP), the Magistrate School, and the Tribunal for Children.  Also, the Inter-American Commission strongly supports the State’s efforts to promote national economic and social development and notes that a number of measures were taken to encourage economic investment in Haiti.  In order to achieve stability in any country, security needs to be accompanied by social and economic development.

369.          On April 14, 2009, the Conference of the Economic and Social Development of Haiti took place in Washington, D.C., with participation by international donors and members of the Haitian government.[481]  This conference resulted in an agreement that donors and the government would work together to address poverty reduction, disaster mitigation, and economic growth priorities identified by Haitians.  Donors pledged US $ 353 million in support of this strategy.[482]  Former President of the United States Bill Clinton was appointed United Nations Special Envoy to Haiti and asked donors to honor their commitment in this regard.  Moreover, a number of countries, as well as the International Monetary Fund and the World Bank approved important debt relief for Haiti[483] in 2009, which will allow the State to concentrate its few financial resources on areas other than the reimbursement of its debts.

370.          For its part, the General Assembly of the Organization of American States adopted Resolution AG.RES.2487 (XXXIX-O/09) during its 39^th regular session convened on June 2-3, 2009, in San Pedro Sula, Honduras.  This Resolution calls for the strengthening of coordinating mechanisms within the OAS and deals mainly with support for socioeconomic development and sustainable political stability in Haiti, with a view to maximizing outcomes through coordinated channels and procedures for the delivery of aid.  In this connection, during the Fifth Summit of the Americas that took place in Trinidad and Tobago and at which the heads of government of 34 countries discussed international support for Haiti, the OAS was mandated to coordinate inter-American programming to support Haiti’s development.

371.          From September 3 to 6, 2009, OAS Assistant Secretary-General, Ambassador Albert Ramdin, headed a high-level mission of inter-American institutions and member state officials to Haiti.[484]  The delegation met with a number of State officials and visited several projects financed or executed by participating institutions to witness firsthand how these projects impact the lives of the Haitian people.  Ambassador Ramdin welcomed the “relatively sustained period of political stability and the improved security environment in Haiti” and hoped that “this unique climate can be used to create jobs, generate income and support democratic consolidation”.[485]

372.          On October 29, 2009, the political stability of Haiti was challenged, when the Senate --after a long and conflictive session-- voted a resolution dismissing Prime Minister Pierre-Louis, for “incoherence in her general politics” and “lack of results”.  International organizations and observers urged the President to nominate a new Prime Minister as soon as possible, to keep in line the many objectives requiring political stability set during year. However, the following day, President Préval proposed Mr. Jean-Max Bellerive, former Minister of Planning and External cooperation, for the position of Prime Minister.  On November 6, 2009 the Senate unanimously approved this candidacy by resolution; the lower Chamber of Congress approved the candidacy the following day; and Mr. Bellerive presented his Cabinet in the following week, resulting in a new government for the Republic in less than two weeks.[486]  This quick resolution of the situation reflects a commitment to maintain political stability as a foundation to further strengthen the economic development.

IV.       CONTINUED CONCERNS OF THE INTER-AMERICAN COMMISSION

A.        Citizen security and impunity for human rights violations

373.          Information received in 2009 reveals a consensus from every sector of the society on a general improvement in the security situation in Haiti.[487]  In this regard, a number of countries, including Canada and United States, modified their travel advisory, suggesting that their citizens “exercise caution regarding travel to Haiti”, rather than the previous warning to “avoid nonessential travel”.

374.          Among other factors, this improvement is due to the positive steps toward the professionalization of the Haitian National Police.  The U.N. referred to a public opinion poll showing that 58% of Haitians consider that there has been a positive change in the HNP.[488]  The IACHR acknowledges the concerted efforts of the State, with support of the international community, to strengthen the PNH and reinforce the rule of law.  It also stresses the importance of adopting appropriate measures to ensure long-term peace and stability through the establishment of a public security policy, strategy and plan to address the key factors contributing to the persistence of violent crime in Haiti.  Civil society expressed its grave concern regarding the fact that no measures were taken to strengthen and stabilize the actual situation, leaving the door open for gangs and related insecurity to grow again.[489]

375.          However, in spite of the signs of progress during the year, the security situation in Haiti remains fragile due to institutional weakness, corruption, impunity and the poor quality of living conditions of the majority of the population.  Information received by the IACHR raises serious concerns in some particular areas, particularly regarding police violence and corruption, the increase of civil unrest and the according police reaction, as well as drug trafficking.

376.          With regard to the HNP, it must be noted that 115 police inspectors graduated in August 2009, and that a new class of 468 police officers graduated, including 153 women.  This marked a total of 10,600 HNP agents for the country, which definitely contributes to the improvement of the security situation.  The Inter-American Commission acknowledges the State’s endeavor, together with the international community, to build a strong and efficient police force.  However, the IACHR must point to the inadequate distribution of police personnel throughout the country.  In reality, the broad majority of these 10,600 agents are located in and around Port-au-Prince. On the border zone, a zone greatly in need of police control, the IACHR learned that there are only around 100 police officers in charge of an area more than 360 kilometers wide.  The Inter-American Commission is highly concerned about the increasing climate of insecurity in these zones, characterized by poverty, exploitation, human rights violations, disorder and constant movement of persons as a border area, presence of well organized criminal gangs, and an almost complete absence of police.

377.          Similarly, the information available to the IACHR also indicates that in Cité Soleil, the number of police officers was increased from 31 to 64.[490]  Despite this significant improvement of the situation, the number remains obviously insufficient to fully ensure security and enjoyment of human rights for the approximate 500,000 inhabitants of Cité Soleil.  In the Delmas 33 Police Station, also responsible for a population of around 500,000 persons, the IACHR was informed that only 2 cars were available during daytime, insufficient to ensure transportation for emergency calls, the patrol, and to bring prisoners to court.  In line with the insufficiency of the NHP and the population’s lack of confidence in the institution, information received shows that lynching continues to be a widespread practice in some regions, and that in very few cases is there any form of police or judicial action, resulting in impunity for perpetrators.[491]  The IACHR understands the difficulties related to the investigation of lynching cases, as it often takes place through the anonymity and support of crowds, but underlines the necessity of doing so in order to send a clear message to the population that the ability to seek justice lies within the State’s jurisdiction only.  In this line, Inter-American Commission re-emphasizes the importance of guaranteeing police presence in every region of the country, to reflect the state’s authority throughout and to send a clear message that no region is under-prioritized.

378.          Despite the significant improvements in the professionalization within the HNP, information received in 2009 still indicates that there is an important number of reports of corruption by police officers.[492]  The IACHR observed that arrests are not always carried out in accordance with the law and applicable procedures; that persons often have difficulty in obtaining recourse to a competent court to decide on the lawfulness of their arrest or detention; and that despite release orders, some persons still have to pay for their liberation.[493]  The Inter-American Commission considers that it is fundamental for the police screening process to continue in order to tackle corruption in the force.  Only then will the HNP be able to fulfill its mandated role of law enforcement and avoid further damaging the integrity and credibility of the police as an institution. 

379.          In this connection, the IACHR was concerned to learn that police officers who discuss the idea of setting up a union within the HNP are subject to serious persecution.[494]  The IACHR was also informed that no State officials are present in the funerals of police officers killed in service, which could be seen as a message of lack of support for its own law enforcement.[495]  Also, it must be noted that the vetting process currently carried out by the United Nations is seen by some sectors as another form of intrusion from the international community in Haitian matters.  In this connection, the Inter-American Commission highlights that the vetting process is conducted at the request of the Haitian State itself, and considers that it is an essential step towards the reinstatement of the population’s trust in the HNP.  Accordingly, the IACHR considers that the State must prioritize the vetting process and regularly publicize the results achieved.

380.          During 2009, the IACHR constantly received information regarding the actions of violent and corrupt police officers, especially in the regions of Les Cayes and Petit-Goâve.  According to such information, police officers in these regions allegedly enjoy the latitude to commit serious violent crimes in total impunity.  Even worse, the IACHR noticed a constant pattern of persecution following denunciations, which takes various forms that escalate from threats, beatings, arson, up to murder of victims who decide to denounce their aggressors.  Furthermore, local prosecutors are allegedly reluctant to process complaints against police officers, by fear of being persecuted themselves.  The information indicates that there is total impunity, and that the victims who dare to denounce these acts to the judiciary are ultimately forced to leave their hometown because of serious fear of being murdered, resulting in a profound disillusionment of the Haitian people with the criminal justice system.

381.          The IACHR was informed of an increase in police violence against young adults and teenagers, and was concerned to learn of the murder of Daniel Darius, a local rapper also known as Fantom, who was allegedly killed by officers of the Motorized Intervention Brigade (BIM). The IACHR was particularly shocked to learn of the death of student Dalus Hetlong, reportedly killed by police officer Jean Erick Jean Baptiste within the university campus, during incidents that got out of control following a false publication on the Ministry of Education website related to the access to official exams.[496] 

382.          On April 19 and June 21, 2009, the Senatorial elections took place, delayed by political turmoil and a series of hurricanes.[497]  A vast majority of the population boycotted the elections, mainly because of fear of retaliation from the supporters of the Fanmi Lavalas political party,[498] to avoid incidents of violence or due to a general lack of confidence in the electoral process.  The fact that private vehicles and public transportation were forbidden on election day might have also been a factor to discourage the electorate from concurring to the voting sites.  For example, on April 19, less than 2% of the electoral population showed up at the polls in the capital, and a total of around 11% in the country, while the participation rate at the June 21, 2009 elections was around 10%.[499]  The Provisional Electoral Council (CEP) and representatives of the international community declared that the elections were carried out normally.[500]

383.          Despite a number of measures to enhance security, there were several acts of violence which resulted in many injured persons, at least one death, and serious irregularities, including acts of intimidation and fraud.  In the Center Department, the CEP had to postpone the senatorial election in several voting centers because voting materials had been burned by protesters and at least one person was injured by a bullet.  Moreover, the IACHR learned that some citizens were not allowed to vote because their names did not appear on any of the voting lists.

384.          Following the elections, the senators’ validation session was delayed several weeks, due in part to fraud denunciations made by the former Vice President of the CEP, which convinced many senators to miss the sessions; and to the internal rules of procedure of the Senate, which are ambiguous concerning the quorum required for such validation.  The validation session finally took place on September 4, 2009.

385.          The IACHR recalls that it is essential that the State create optimum conditions and mechanisms to ensure that political rights, as enshrined in Article 23 of the American Convention, can be exercised effectively, respecting the principle of equality and non-discrimination.[501]  Although the Inter-American Commission recognizes the efforts made by the State and the international community to conduct these elections in a democratic and transparent manner, the participation rate reflects a serious disinterest in several regions.  Also, some of the measures taken, such as the prohibition of transportation, seriously prevented an important portion of the population from exercising their right to vote.  All these factors have a direct impact on the population’s confidence in their representatives, required in the establishment of the rule of law.

386.          Statistics show that civil unrest has increased since 2008.  In February 2009 alone, 64 demonstrations were reported in the country, two thirds of which were allegedly motivated by socio-economic concerns.[502]  Turbulent and often violent daily protests in Port-au-Prince made headlines from late April to September, concerning principally the adoption of a law establishing the minimum daily wage at 200 gourdes (U.S.$ 5) and a reform of the Haitian State University.  Protesters were principally composed of students and citizens of popular suburbs of Port-au-Prince.  These protests gave rise to many episodes of violence, leading to people injured, many people arrested, and property damage.  The media also reported excessive use of teargas and warning shots by the authorities, resulting in more people injured.  Many of the arrests were allegedly used by the authorities as a repression tool and denounced by NGOs as arbitrary and violent.[503]  Following a decision from the Haitian Parliament which rejected the claims of the protesters, the Haitian Industry Association had to shut down some of its industries for some days following violent events where workers and police officers were beat up by demonstrators, and many private and public vehicles were damaged.

387.          The reaction of the HNP to civil protests in 2009 was heavily criticized by NGOs and the media.  In August, the IACHR received information alleging that agents of the HNP fired teargas, used clubs and conducted many arrests in order to disperse protesters, mainly recently fired employees of the Haitian Telecommunications Company (TELECO), the National Port Authority (APN) and the Electricity Company of Haiti (EDH).  The city of Lascahobas was also subjected to series of demonstrations related to power cuts and the bad distribution of energy in the Center Department, with a balance of at least one dead person and some ten people injured after MINUSTAH soldiers tried to break barricades and were pelted with stones and later fired at.

388.          According to this information, the demonstrations were characterized by acts of violence or intimidation by certain sectors of society opposed to them, which have limited significantly the exercise of the right to freedom of expression or the right of assembly.  The IACHR reminds the Haitian State of its obligation to effectively guarantee the free and peaceful exercise of those rights, which can only be limited in accordance with the restrictions expressly provided in the American Convention.

389.          Although kidnappings remain a source of preoccupation, as of August 27, 2009, the United Nations Police (UNPOL) registered an average decrease of 74% in kidnappings this year compared to 2008.[504]  The Inter-American Commission was concerned to learn that a Port-au-Prince examining magistrate, in charge of several kidnapping cases, was shot twice near his residence by armed gang members.[505]

390.          During 2009 the IACHR was constantly concerned with the problem of drug trafficking, which continues to threaten citizen security.  According to media reports, the practice of smuggling drugs by air increased by 53 percent over the two last years.[506]  Drug smugglers corrupt Haiti’s police force, judges and politicians, which in turn undermines the efforts of the international and local community to bring security and stability in the country.  The IACHR urges the authorities to renew efforts to advance against drug smuggling and lack of control at the border and the inefficient ports.

391.          The Inter-American Commission was also made aware that in Port-de-Paix, the Government Commissioner, Jean-Frédérick Bénêche, ordered the arrest of the journalist Kerly Dubréus, director of Radio Kon Lambi, who spread information related to his alleged involvement in drug smuggling.[507]  Information received also indicates that the Commissioner Bénêche shut down a radio station, Radio Idéale FM, for “obstruction of justice”, following its diffusion of an interview concerning narco-trafficking involving Port-de-Paix authorities,[508] because the radio station authorities refused to share their source of information.  After ten days, and following massive denunciations by local journalists and international press associations claiming the arbitrariness of their arrest,[509] the journalist was released and the radio station reopened, following an intervention from the Justice Minister.[510]  In this regard, the Inter-American Court has stated that

when an individual's freedom of expression is unlawfully restricted, it is not only the right of that individual that is being violated, but also the right of all others to "receive" information and ideas.[511]

392.          The IACHR encourages the Haitian State to adopt all measures necessary in order to guarantee the exercise of this right since “freedom of expression is a cornerstone upon which the very existence of a democratic society rests”[512] and reminds the Haitian State of the Principle 8 of the Declaration of Principles on Freedom of Expression, which indicates that: “Every social communicator has the right to keep his/her source of information, notes, personal and professional archives confidential.”

393.          The IACHR also recalls Principle 13 of the Declaration, which stipulates that

The exercise of power and the use of public funds by the state for the concession of radio and television broadcast frequencies, among others, with the intent to put pressure on and punish or reward and provide privileges to social communicators and communications media because of the opinions they express threaten freedom of expression, and must be explicitly prohibited by law.  The means of communication have the right to carry out their role in an independent manner. Direct or indirect pressures exerted upon journalists or other social communicators to stifle the dissemination of information are incompatible with freedom of expression.

394.          Moreover, the IACHR received information to the effect that in July 2009, the Hinche residence of Sainlus Augustin, journalist for The Voice of Americas and Radio Kiskeya, was attacked with fire weapons.  The information indicates that Augustin accuses the Deputy and Senate candidate Wilot Joseph, who would have been disturbed by some articles from Augustin.[513]

395.          The IACHR calls the Haitian State to bear in mind the Principle 9 of the Declaration of Principles on Freedom of Expression, which indicates that: The murder, kidnapping, intimidation of and/or threats to social communicators, as well as the material destruction of communications media violate the fundamental rights of individuals and strongly restrict freedom of expression. It is the duty of the state to prevent and investigate such occurrences, to punish their perpetrators and to ensure that victims receive due compensation.”

396.          Finally, as previously mentioned,[514] the IACHR recognizes that the United Nations Stabilization Mission in Haiti is firmly committed to ensuring conditions of peace and security in the country since its creation in 2004.  MINUSTAH has undertaken efforts to improve the public security situation by supporting the HNP in its efforts to prevent crime, and by placing greater emphasis on institution strengthening and reform of the police and the judiciary.

B.        Administration of justice

397.          The IACHR observes that an institutionally strong, qualified and professional police force, accompanied by an efficient justice system, are essential elements in order to establish and maintain the rule of law in any society.  Accordingly, the measures to reform the police force in Haiti must be accompanied by a strengthening of the justice system.  During 2009, the IACHR received information that the justice system continues to be characterized by serious deficiencies, such as insufficiency of judges, ultra vires decisions, corruption and excessive application of pretrial detention.

398.          The IACHR recognizes the efforts made by the Haitian authorities, together with MINUSTAH and international organizations, which led to the re-opening of the school of Magistrates in March of 2009.  The training provided by this school will give the judges the elements required to perform their duties more effectively, and it is hoped that it will constitute an important contribution to the independence and institutional strength of the judiciary.  The Inter- American Commission considers that this is an important step towards compliance with the legal reform that led to the adoption of a series of laws during 2007.[515]

399.          The IACHR was pleased to learn that in 2009 there were several “Justice Houses” (maisons de la justice) in operation.  These are organizations that aim to facilitate citizens’ access to justice by providing information, legal advice, as well as assistance to victims.[516]  The Inter-American Commission hopes that these initiatives will receive the support required not only so that they may continue their activities, but also that the necessary efforts will be deployed to create Justice Houses in every region of the country.

400.          The Inter-American Commission also acknowledges the measures taken by the Ministry of Justice to fight corruption in the justice system.  In this regard, the IACHR learned that from March to May, a number of magistrates were dismissed or suspended for presumption of corruption and/or serious misconduct.[517]  However, the suspended magistrates are waiting for a decision of the Superior Council of the Judiciary Power (CSPJ), which is still not appointed, despite being created by law adopted in 2007.  The Senate provided the President with a screened list of candidates for this position, but the President of Haiti has yet to take action in this regard.  According to Haitian law, the President of the CSPJ will also act as the President of the final Court of Appeal (Cour de Cassation), a position which has been vacant for almost five years.  The Inter-American Commission considers that the prompt nomination of the President of the CSPJ would be a sign of willingness from the authorities to move forward with the legal reform.

401.          The IACHR learned that the monthly salary of a judge will pass from 18,000 gourdes (US$ 450) to 54,000 gourdes (US$ 1,350) by the end of 2009.[518]  However, the IACHR was concerned about the fact that in some cases the judges must personally assume certain costs of the trial, such as the water served to juries or the fuel required for the jury’s transportation.  Even more worrisome is the information that indicates that some judges request bribes in order to move forward with a case and that in some tribunals clerks even refuse to deliver required documents if they are not given a certain amount of money from the parties.  Institutional independence of the courts relates to the structure and organization of the judiciary and its separation from the other branches of government.  In this respect, Article 8 of the American Convention provides for the right to be tried by a “competent, independent and impartial tribunal,” which in the view of the  IACHR requires that courts be autonomous from the other branches of government, free from influence, threats or interference from any source and for any reason, and benefit from other characteristics necessary for ensuring the correct and independent performance of judicial functions, including tenure and appropriate professional training.[519]  The IACHR notes that the lack of -independence of the Judiciary can lead to corruption, which in turn often leads to impunity.  Accordingly, it is important that procedures be put in place to prevent and respond to possible situations of corruption.

402.          In this regard, the IACHR welcomes the decision of the Federal Criminal Tribunal of Bern, Switzerland, to distribute funds held by the family of former Haitian dictator Jean Claude Duvalier to the people of Haiti.  In its considerations, the Swiss Court found that the so-called foundation owned by the ex-dictator’s family could be assimilated to a criminal organization, which used the Chief of State’s absolute power in order to impose a climate of terror in Haiti and bring to his members considerable income by the systematic misappropriation of public funds.[520]  This decision sends a clear message to State authorities in the sense that the practice of misappropriating public funds is a crime and that the chances of impunity are narrowing.

403.          Information received indicates that the justice system has serious needs in terms of transportation and communication, as well as more modern and scientific methods of investigation, such as biological or ballistic analyses.  The lack of such tools is problematic in terms of collecting and analyzing proof, can undermine confidence in the result of judicial processes, and can contribute to the delay in the administration of justice.

404.          The limited capacity of the justice system, the absence of due process in some cases, and the lack of effective legal assistance, are all factors which generate a rise in the prison population.  Persons deprived of liberty continue to live in overcrowded conditions that do not respect the minimum universally recognized standards for detention, in violation of their fundamental rights.  The IACHR continued to receive information to the effect that approximately 80% of the persons detained in Haiti are still waiting for a trial, and that the average time spent in pretrial detention is 22 months.[521]  The IACHR learned that legal assistance is not provided to a majority of the inmates during this period, which generates serious juridical uncertainty.  As identified by the inter-American Court:

[t]he right of access to justice recognizes that, from the outset, any person who is committed to trial must have the effective possibility of obtaining a final ruling, without undue delays resulting from the lack of diligence and care that the courts of justice must guarantee, as observed in the instant case.[522]  Otherwise, in light of the right to an effective recourse embodied in Article 25 of the Convention, it is evident that the person prosecuted cannot resort to the guarantees contained in Article 8 of the Convention, which would be useless if it was impossible to begin the proceedings in the first place.[523] [524]

405.          As previously identified by the IACHR, these deficiencies undermine the ability of the justice system in Haiti to effectively ensure and protect the fundamental rights and freedoms to which the inhabitants of that country are entitled, resulting in a pattern of impunity for violations committed by both state and non-state actors.[525]  In this regard, the Inter-American Commission cannot overemphasize its serious concern for the total impunity following violent crimes committed by police officers in some regions of the country and recalls to the authorities the urgency of resolving the systematic failure to prosecute and punish state agents who commit human rights violations, no matter which part of the society the victims are from.

C.        Situation of particular persons and groups

1.         Persons deprived of liberty

406.          For a number of years, the IACHR, local and international organizations, as well as other civil and political actors, condemned the conditions in which people are kept in custody in Haiti.  As a result of this concern, reports have been published on the issue, commissions have been formed, and many recommendations formulated.[526]  Despite all the efforts to denounce and ameliorate the situation, according to the information received in 2009, as well as to the situation as ascertained by the IACHR during this year, the situation of detainees in Haiti did not improve.  In fact, it is often said that the penitentiary system is more similar to a school of crime than an institution for the correction or rehabilitation of persons.

407.          In 2009, the IACHR continued to receive worrisome information revealing that 80% of the persons in the State’s custody are awaiting trial.  The Inter-American Commission notes that during this period, which can last several years, the persons waiting for a judgment are held together with convicted criminals and treated as such, in violation of their right to the presumption of innocence.  In addition to the conditions prevailing in the prisons, the IACHR is particularly worried about the situation of those detained in local police stations, sometimes for a period extending to several months.  Because these places are not official prisons, no budget is allotted for the food and care of the detainees, and the officers do not receive specific training from the Penitentiary Administration on how to deal with detained persons generally, or with those who have special needs.

408.          The Inter-American Commission welcomes the adoption of a law regulating custody, the attributions and functioning of the judge, and legality of the arrest, detention and habeas corpus procedures.[527]  Among other things, the law provides that persons cannot be placed in custody unless they are caught in flagrante delicto, or under very specific circumstances defined therein; that custody exceeding 48 hours which is not authorized expressly by a judge will be assimilated to arbitrary detention; that the violation of a person’s rights in the course of his arrest, custody or questioning nullifies the procedure, as well as any testimony rendered in such circumstances; and that a person arrested for an offense must be judged within a one-year period.  This period can be lengthened to two years in the cases of serious crimes, otherwise the person ought to be conditionally released subject to appearance for all subsequent phases of the procedure.  Finally, the law sets a period of one year after its adoption for the different authorities involved to comply with the provisions and implement the measures therein.  In this connection, the IACHR recalls the ruling of the Inter-American Court ruling in the Case of Yvon Neptune:

the Convention stipulates that a detention must be subject to prompt judicial review. The Court has understood that immediate judicial control is a measure intended to avoid arbitrary or unlawful detention, bearing in mind that, under the rule of law, the judge must guarantee the rights of the person detained, authorize the adoption of preventive or coercive measures when this is strictly necessary and, in general, ensure that the accused is treated in a manner consequent with the presumption of innocence. [528]”

409.          The IACHR commends the above mentioned initiative, and hopes that the procedural requirements will be facilitated in order for the law regulating custody to enter into force as soon as possible.  The efforts the State may adopt to implement this law will be followed closely by the Inter-American Commission, as a step towards complying with Haiti’s international obligations with regard to the rights of persons deprived of liberty.

410.          In addition to extensive pretrial detention, another issue of concern for the IACHR is that the persons awaiting trial are held together with those convicted.  The American Convention, as well as other international instruments, underlines the importance of separating the accused from the convicted.[529]  In this regard, the inter-American Court noted that:

Article 5(4) of the American Convention imposes on the States the obligation to establish a classification system for prisoners in penitentiary centers, in order to guarantee that accused persons are separated from convicted persons, and receive treatment adapted to their status as unconvicted persons.[530] These guarantees can be understood as a corollary of the right of the accused person to be presumed innocent, while he has not been found guilty in accordance with the law, which is stipulated in Article 8(2) of the Convention. The State must demonstrate the existence and functioning of a classification system that respects the guarantees established in Article 5(4) of the Convention, as well as the existence of exceptional circumstances, if it does not separate accused persons from convicted persons.[531]

411.          The Inter-American Commission received information indicating that the recently built prison of St. Marc in the Artibonite department represents a very important advance in the field of custody.  According to this information, the St. Marc prison contains a section for minors, a section for women and a section for girls; convicted persons are separated from those in remand; and all detainees have access to literacy programs.  However, the IACHR notes that the St. Marc prison is the sole custodial establishment separating convicted persons from those in pretrial detention and urges the authorities to endorse this practice, not as an exception but as a rule.  In this regard the Inter-American Commission welcomes the construction during 2009, with the support of International Trade Canada’s Stabilization and Reconstruction Task Force and various United Nations agencies, of a new detention center in Croix-des-Bouquets, which will accommodate up to 750 inmates, as well as a new building for the HNP Inspectorate General.  The IACHR will pay close attention to the developments in this regard.

412.          The information available to the Inter-American Commission indicates that the Penitentiary Administration, under the aegis of the PNH, is not receiving adequate priority.  This information also reveals that the salary of prison staff is often insufficient; that their sleeping areas are in the same condition as the detainees’ cells; and that the food supplied to staff is often prepared by detainees, all of which represent a source of concern.[532]

413.          A constant concern for the IACHR in 2009 is the degrading and inhumane conditions of the majority of detainees in Haiti.[533]  On average, there are 0.62 m² for each detainee in Haiti, whereas the Standard Minimum Rules for the Treatment of Prisoners set this space at a minimum of 4.5 m².[534]  This situation has been depicted in several previous reports,[535] and on the basis of the direct observation by the IACHR during its visit to Haiti, as well as on information received, it has not improved.  For example, when the IACHR visited the Pétion-Ville Prison for Women, 312 detainees --7 of whom were pregnant-- were held in 19 cells.  Moreover, the detainees informed the IACHR that their health situation was not given serious enough consideration by the authorities.  When the Inter-American Commission visited the National Penitentiary, it found that the infirmary comprises 6 mattresses, including one old dentist chair, for a total of 4000 detainees, more than 50 of which are seriously ill.  The IACHR noticed that there is not enough space for all the prisoners to sleep at the same time. 

414.          The Inter-American Court described the Port-au-Prince National Penitentiary in the following terms:

The State did not dispute the (…) allegations, according to which: [t]he extreme overcrowding, unhygienic and unsanitary conditions and poor inmate diet at the National Penitentiary did not even approximate the standards set in the United Nations Standard Minimum Rules for the Treatment of Prisoners; and [d]espite repeated outbreaks of violence in the National Penitentiary, the State kept its inadequate structure intact.[536] 

415.          The Inter-American Commission was particularly disturbed to learn about the situation of Ronald Dauphin, who was arrested in March 2004 and was still in preventive detention in the National Penitentiary during 2009.  Mr. Dauphin suffers from important health problems such as strong headaches and frequent loss of consciousness, on the basis of which two doctors recommended his transfer to a hospital complex. [537]  The authorities in charge have allegedly denied his transfer without any justification.

416.          The conditions of detention in police holding cells are not better.  In the Gonaïves police station, with capacity for seventy five detainees, more than three hundred persons are held.  They have little or no light or ventilation, inadequate sanitation and no access to medical treatment.  The lack of space requires them to take turns to sleep.  The information received by the IACHR indicates that the situation is just as inadequate in other regions of the country.[538]

417.          The IACHR was encouraged to learn about the implementation of the Development Strategic Plan 2007-2012 prepared by the direction of the Penitentiary Administration, which includes considerations related to infrastructure, personnel, equipment and material, as well as for the physical and psychological well-being of detainees.  The Inter-American Commission encourages the State to invest the necessary resources for the implementation and the success of this strategic plan and recalls that “any person deprived of liberty has the right to live in detention conditions that are compatible with his personal dignity, which must be ensured by the State, because the State occupies the special position of guarantor with regard to such persons, since the penitentiary authorities exercise total control over them.”[539]

2.         Human rights defenders

418.          During its 134^th sessions of March, 2009, the IACHR ruled on the merits of the case of Lysias Fleury, where it established that the victim was illegally detained on June 24, 2002, in Port of Prince, and subsequently subjected to cruel, inhuman, and degrading treatment by State agents, because, among other things, of his role as a human rights defender and the lack of due diligence in the investigation and the lack of punishment of those responsible.  The IACHR concluded that Haiti engaged in the arbitrary detention, torture and inhumane treatment of Mr. Fleury.  Also, the Inter-American Commission found that the State did not ensure Mr. Fleury’s right to a fair trial and to judicial protection.  Accordingly, the IACHR concluded that the Haitian State was responsible for the violations of human rights under Articles 5, 7, 8 and 25 of the American Convention.  After having transmitted the report to the State and notified the petitioners, on August 5, 2009, the IACHR filed an application in the case of Mr. Fleury before the Inter-American Court on Human Rights.

419.          In the section on Haiti of Chapter IV of its 2008 Annual Report, the Inter-American Commission had reported that fewer complaints were received that year relating to violence and threats made in retaliation against human rights defenders.  However, during 2009 the IACHR witnessed a resurgence of such activities, and is specifically concerned about the constant acts of persecution, threats and physical abuse that affect human rights defenders in some regions of the country, ranging from anonymous phone calls to severe beatings.

420.          The Inter-American Commission recalls that human rights defenders, from different sectors of civil society, make fundamental contributions to the existence and strengthening of democratic societies.  Accordingly, respect for human rights in a democratic state in important part depends on human rights defenders enjoying effective and adequate guarantees so that they may carry out their activities freely.[540]  In this sense, the IACHR reminds the State of its duty to ensure the necessary conditions to facilitate the work of defenders.

421.          During 2009, the Inter-American Commission granted precautionary measures for two organizations of human rights defenders.[541] In this regard, the Inter-American Commission expresses its concern for the failure to respond to the requests for information regarding precautionary measures in favor of defenders in Haiti, or to take any action in order to comply with the measures.  It must be emphasized that beneficiaries of precautionary measures who continue to exercise their activities are at extreme risk due to the absence of security measures by the State to ensure their right to life and physical integrity.  Accordingly, the IACHR urges the Haitian State to take the steps necessary to prevent and eradicate any form of persecution against persons who dedicate their efforts to the defense and promotion of human rights.

3.         Women

422.          During 2009, the Inter-American Commission continued to receive information indicating that women remain the target of discrimination, despite a number of recent and specialized State initiatives, particularly those launched by the Ministry of Women, to provide greater protection and services to women victims of violence.[542]  Some steps adopted to address this situation display an understanding of the gravity of the existing problems and the commitment of the State and non-state sectors to consider the specific needs of women in public policies designed to prevent, punish and eradicate acts of discrimination and violence against women.  The IACHR reiterates its commitment to collaborate with the Haitian State in the search for solutions to the problems identified.

423.          In 2009, to highlight the alarming situation of violence and discrimination against women, as a fundamental human right issue, the IACHR published the Report on the Right of Women to Live Free of Violence and Discrimination in Haiti.[543]  The Report indicates that acts of violence against women are an especially extreme and grave manifestation of the discriminatory treatment women still receive in Haitian society.  Discrimination and the resulting acts of violence continue to be tolerated in Haitian society, which in turn perpetuates a climate of impunity towards these acts and their repetition.  The recommendations in the report are geared towards the design of a national State policy that takes into account the existing forms of violence and discrimination against women, during times of peace and political unrest, in order to advance in the diagnosis, prevention and response to these problems and the incorporation of the specific needs of women in the public agenda.  The Inter-American Commission emphasizes the importance of adopting a multi-disciplinary and inter-sectorial approach to these problems, which seeks to integrate gender equality norms in all sectors of government.  The recommendations furthermore call on the Haitian State to adopt urgent measures to eradicate discriminatory socio-cultural patterns based on the concept that women are inferior, as well as to take account of the problem of discrimination and the structural inequalities women experience in the development of public policies with the overall objective of addressing acts of violence perpetrated against women and girls in Haiti.[544]

424.          For as long as the IACHR has been evaluating the human rights situation in Haiti, fundamental deficiencies in the Haitian justice system have been identified among the matters of greatest concern.  In this trend, the Inter-American Commission notes with particular concern that most cases of violence against women are never formally investigated, prosecuted and punished by the justice system.  This pattern of systematic impunity sends the message that forms of violence and discrimination against women are and will be tolerated.  The prevalence of discrimination against women in Haitian society constitutes an additional barrier for women victims of violence to access justice.

425.          An especially serious case which reflects this situation motivated a request for provisional measures to the Inter-American Court of Human Rights.  The Inter-American Commission was informed that a 17-year old female identified as A.J. was raped by a police officer in Haiti on October 4, 2009 after she refused to have sexual relations with him in exchange for liberating her father, identified as B.J.  Subsequent to the rape, A.J.’s family and members of the NGO that represented her were allegedly subjected to several acts of intimidation by the rapist, a local police chief.  On March 28, 2009, B.J. was found dead with bullet wounds and lesions, after being kidnapped by five armed men a few days before.  After the IACHR granted precautionary measures for the protection of A.J., her family, and the NGO, the home of A.J. was burned down and other serious acts of harassment and threats continued against the beneficiaries of the measures.  The IACHR requested provisional measures to the Inter-American Court, which were granted on August 24, 2009.  According to the information available, the State has not reported any measures to implement specific measures for the protection of the beneficiaries.

426.          The IACHR is particularly troubled by the fact that female victims of violence are disinclined to turn to the justice system.  Victims and their families have no confidence in the ability of the justice system to right the wrongs committed, and are often mistreated when attempting to avail themselves of judicial remedies.  This combination of factors leaves the victims with a sense of insecurity, defenselessness and mistrust in the administration of justice.  The Inter-American Commission cannot overemphasized the importance of strengthening the capacity of institutions to combat the pattern of impunity in cases involving violence against women, through effective criminal investigations that bring cases to trial, thereby ensuring that the crimes are properly punished and that the victims receive adequate reparations.

4.         Children

427.          During 2009 some 50,000 children lived in Haiti in shelters and orphanages.  Only one of them, the shelter of Le Carrefour, is partly financed by the State.  Le Carrefour shelters street kids, orphans, children in need of protection, as well as children in conflict with the law, not convicted, but rather placed there by the IBERS (Institute of Social Welfare and Research).  This shelter houses 387 children, and approximately the same number is housed in its two annexes, one of which located at Petite Place Cazeau and the other in the Central Plateau.  The Petite Place Cazeau Center is used as a reinsertion center for young adults and it provides them with assistance to find a job before they leave.  The majority of Le Carrefour’s furniture is built by the Petit Place Cazeau’s adolescents.  The IACHR acknowledges the worth of this initiative, but it must note that during its May visit it was informed that the staff of Le Carrefour did not receive their salary from the State for over eight months, for the second consecutive year.  The Inter-American Commission strongly hopes that this situation will be addressed in the budget adopted in autumn of 2009, so that the project may continue effectively.

428.          The IACHR has taken note that efforts are made within the Minors’ Protection Division (MPD), a specialized unit within the HNP, to deal appropriately with children in conflict with the law and children in need of protection.  This unit was created in 2002, with the support of UNICEF, and it comprises some 35 police officers stationed around the capital city.  During its meeting with the Chief of the MPD, the Inter-American Commission was informed that programs were set to start in other regions to train police officers.  The IACHR strongly supports this initiative and emphasizes the need to station members of this Brigade in all regions of the country so that it may be available to every child, regardless of his or her geographic location.

429.          This unit is particularly important considering the alarming information that indicates children are increasingly targeted by criminal gang leaders for abductions: not only as victims, but also as participants, to perform the most exposed acts, such as feeding the victim or collecting the ransom.  This has resulted in the arrest of more children under the charge of kidnapping or gang association (association de malfaiteurs).[545]  In 2009, some 350 children in conflict with the law were held in custodial institutions in Haiti, the vast majority of which were in pretrial detention.  During its visit to Gonaïves, the Commission was particularly concerned about the situation of minors held together with adults at the Toussaint Louverture Police Station. The Commission had the opportunity to meet with the Government Commissioner to express its concern in this regard.  Subsequently, the IACHR was informed that, with important support from the MINUSTAH, a cell especially for boys was built at the Toussaint Louverture Police Station in Gonaives, ensuring that they are held separately from the adults.[546]  The IACHR wholeheartedly welcomes the construction of this cell.

430.          In the Delmas 33 Detention Center for Minors, the only one exclusively for children in conflict with the law in Haiti, overcrowding is severe.  During the IACHR’s May 2009 visit, the Center, which was built for 72 children, sheltered 174, 13 of whom were convicted, ranging from 10 to 18 years old.[547]

431.          The IACHR is encouraged to learn that the MPD is increasingly considering measures alternative to imprisonment, such as the return of stolen items or reaching agreements with the victim of the illegal act in question.  Although it is clear that these measures cannot be envisaged following a serious crime, but only minor offenses, the Inter-American Commission considers that these alternative measures are a positive way to contribute to the decongestion of crowded cells and to solve the problem of children held together with adults.  The IACHR also acknowledges the project of the Port-au-Prince Bar, together with UNICEF, to finance one attorney entirely dedicated to providing free legal assistance to minors.  However, other regions of the country are apparently not covered by such assistance.

432.          In addition to the situation of the Delmas 33 Center and Gonaïves, the IACHR received worrisome information concerning the situation of minors detained in Jérémie, revealing that pretrial detention generally lasts up to around 5 months; that detention conditions include overcrowding; and that rain causes hazardous conditions; some juvenile are held together with adults; that food, water, access to clothing and medical care are inadequate; no educational resources are available; legal representation is uneven or non-existent; and some judge persistently do not show up for scheduled hearings or that the case file is not available during the hearing.[548]

433.          With regard to the city of Cap Haïtien, the Inter-American Commission was pleased to learn about the opening of the Tribunal for Children and to learn that the judges who will be assigned to this Tribunal will receive specific training from the United Nations Development Program (UNDP), MINUSTAH and UNICEF.[549]  The IACHR considers that the establishment of this tribunal represents an advance in the process of the Haitian judicial system reform and strongly hopes that it will contribute to achieving the advances in this crucial area.  However, during a meeting with the judges of the Port-au-Prince Tribunal for Children, the judges indicated to the IACHR that the institutional resources are not in place in order to allow them to apply the existing law.  As an example, according to this law, if the judge convicts a child, he can only send him back to his parents; send him to an education center under surveillance; or place him or her in a psychiatric institution.[550]  However, as such centers do not exist in Haiti; when the judge sentences a child to be remitted to such a center, he knows that the child will ultimately be sent to the Delmas 33 Center, or worse, remain in his current facility.[551]  The judges also pointed out that there are a high number of children in prison that are not reported to the judiciary and never brought before the Tribunal for Children.[552]  The Inter-American Commission notes that this situation causes a double illegality to the detriment of minors because on the one hand they are held in prisons for adults, and on the other, they are not transferred to the jurisdiction of the Tribunal for Children.

434.          The IACHR continues to be concerned about the situation of thousands of Haitian unpaid child laborers, condemned to living as restavek (“live with” in créole).  The restavek system deprives children of their family environment and subjects them to multiple forms of abuse including economic exploitation, sexual violence and corporal punishment, thereby violating their right to security, education, health and food.  Many of these children have been reported as trafficked within and outside the country.  The U.N. Special Rapporteur on Contemporary Forms of Slavery described the restavek system as a “modern form of slavery”.[553] 

435.          The Inter-American Commission is also concerned by the rising number of street children, who organize themselves in bases in order to survive in the violent street environment.   The leaders often take advantage of the youngest; sexual violence is frequent, sometimes as an initiation ritual; and children are ready to do anything to maintain their belonging to one of these bases, since the alternative of being alone would likely lead to their death.[554]  The only organizations available to provide support to children in these sectors are local or international NGOs, but there is no long term program in place.[555]  The Inter-American Commission urges the Haitian authorities to take concrete measures to provide an alternative for these children.  As the IACHR has noted on previous occasions, children are among the most vulnerable members of society and are entitled to special protection from the State in order to effectively safeguard their rights.  Accordingly, the Inter-American Commission urges the State to take the measures necessary to give full effect to the rights of children under Article 19 of the American Convention; to guarantee that effective measures of protection are in place, as required by their condition as minors; and to ensure their full enjoyment of the rights and freedoms provided for under the Convention on the Rights of the Child, ratified by the Haitian State on July 8, 1995.

D.        Economic, social and cultural rights

436.          Extreme poverty remains one of the most extensive and complex challenges facing Haiti, with consequent effects on human rights.  While the socio-economic context generally improved since 2008, reports show that nearly a third of the population is moderately or extremely insecure in terms of access to food,[556] and that health and education are among the areas where the State’s capacity to deliver basic services is the weakest.[557]  Organizations report that in the first half of 2009 Haiti felt the impact of the international financial crisis.[558] Although statistics related to employment are difficult to pin down in Haiti, some estimates put the country’s unemployment rate as high as 70 percent.[559]  It must be noted that Haiti has no social safety net, no unemployment insurance, no state-supported health care, and that nationally, only three out of five children attend school and twenty five percent of Haiti’s rural district have no school whatsoever.[560]

437.          In Cité-Soleil, which has a population of around 500,000 people, the IACHR was informed that the only hospital available has thirty beds.  Only 2.8% of the adult population has access to drinking water.  While 14% of the families participate in an activity which generates income, 60% of the population eats once a day, 18% twice a day, 3.8% eat three times a day and 19.2% eat only “sometimes”.[561]

438.          Additionally, the IACHR learned that the region of Gonaives still suffers from the devastating consequences related to last year’s consecutive hurricanes.  The IACHR learned that more than nine months after the hurricanes, around 450 families (representing 1,460 persons) still live in shelters, in inadequate conditions with no mattresses, poor hygiene, and insufficient food. Floods still occur every time it rains and although the country was not yet affected by hurricanes this year, it is still a constant source of preoccupation for the population and for the authorities.  In this regard, the Inter-American Commission learned that an important portion of the population left the city of Gonaives to migrate towards the mountains, where they hope to find greater environmental stability.[562]

439.          Haiti was set to ratify in 2009 the International Covenant on Economic, Social and Cultural Rights, but this decision was postponed for unspecified reasons.  The Inter-American Commission strongly encourages the State to ratify the ICESCR since it would represent a commitment to prioritize and ameliorate the socioeconomic situation of the country.[563]  In this regard, the IACHR recalls that the need for security and justice needs to be accompanied by social and economic development in order to achieve durable stability.  The State will not be in a position to guarantee the exercise by the Haitian population of its social, economic and cultural rights, without functional institutions and public services.

440.          Closely linked to the social and economic environment prevailing in Haiti is the massive number of Haitians who decide to leave the country, despite extremely harsh conditions waiting for them.  As in previous years, during 2009, the IACHR was preoccupied to learn about dozens of Haitians, commonly known as “boat people”, who found death on their way out of the country.  These persons pay to board extremely insecure boats to try to find a better living elsewhere, usually the United States.

441.          Another concern of the Inter-American Commission is the situation of Haitians who are deported back to Haiti.  The IACHR first notes that in most cases, the ‘deported’ left Haiti when they were very young, adapted to their welcoming country and often do not speak créole or French.  According to information received by the IACHR, the Dominican Republic alone repatriates some 20,000 Haitians yearly.[564]  Regardless of where the Haitian is deported from, no programs of reinsertion exist within the Haitian State.  Each repatriated person is welcomed back by the National Immigration Office, which provides him or her between 500 and 1000 gourdes (U.S.$12 to U.S.$24) and then left on their own.[565]  Without programs in place to help them to get reaccustomed to Haiti, these persons are in most cases not only poor and unemployed but also stigmatized by the rest of the population, who often associate them with criminality and blame them for the insecurity in the country.  Repatriates usually attempt to leave Haiti again as soon as they have an opportunity, even if it is to the Dominican Republic, where they continue to be the target of acts of violence.  These acts can be as extreme as the reported May 2, 2009 beheading of Haitian Carlos Nérilus in the city of Buenos Aires in the Dominican Republic, before a crowd applauding in approval and the reported October 22 beheading of Haitian Tony Charlis, in similar circumstances.[566]

442.          The IACHR invites the Haitian authorities to be more proactive with respect to this situation; bringing criminal charges against those responsible for transporting boat people when it endangers the lives of persons; negotiating migratory labor agreements with neighboring island countries;[567] and implementing programs of reinsertion for repatriated Haitians.

V.                 CONCLUDING OBSERVATIONS

443.          First of all, the IACHR notes that 2009 was characterized by relative stability in Haiti, a general improvement in the security situation and an important commitment from the international community to engage in numerous social and economic development projects.  These achievements remain fragile and the Inter-American Commission, while recognizing them, will continue to closely monitor the situation of human rights in Haiti.

444.          Despite the specific advances identified, the IACHR must also note that many of the problems it observed in Haiti during 2009 arise from the same unsolved situations of the past, which have been identified in its previous reports regarding this country.  In effect, the Inter-American Commission has previously expressed concern about public security, administration of justice, impunity and the situation of particular persons and groups (women, children, human rights defenders and journalists) in Haiti.  These concerns remain present, and Haiti continues to suffer from structural and institutional deficiencies requiring reforms and long-term assistance.  The failure of the system to effectively and promptly administer justice, the prevalence of corruption and important lack of financial and human resources all contribute to create an environment of general impunity affecting the State’s capacity to guarantee and respect the fundamental rights of the inhabitants of Haiti.

445.          The Inter-American Commission must again emphasize the importance of developing a long term strategy and policy of reform to address structural and legislative weaknesses in these areas.  In this connection, the IACHR reiterates the importance of the international community’s role in providing critical financial and technical assistance to Haiti’s mission to address longstanding issues and to achieve long-term change and stability, and in particular the need to develop programs in collaboration and coordination with the Haitian government and other key stakeholders.

446.          On the basis of the information and analysis of this report, In light of its conclusions, the Commission recommends that the Republic of Haiti take the following measures:

1.                  To implement the series of laws adopted in 2007 on the independence of the judiciary, such as nominating the President of the Superior Council of the Judiciary Power. 

2.                  To ensure that the courts are capable of fulfilling their role, especially the duty to investigate, prosecute and punish persons responsible for human rights violations. 

3.                  To fully and promptly engage in the implementation of the Penitentiary Administration Development Strategic Plan and the recently adopted Law regulating custody. 

4.                  To continue the HNP vetting process, with the full support of the State. 

5.                  To ensure adequate prevention and punishment of violent crimes, and to reinforce accountability mechanisms in order to effectively hold perpetrators accountable for their crimes.

447.          In the resolution of the problems identified in this report, the IACHR reiterates its commitment to collaborate with the Haitian State and offers its assistance to the government and people of Haiti in their endeavor to address these deficiencies.