US embassy cable - 05PORTAUPRINCE1628

C O N F I D E N T I A L SECTION 01 OF 03 PORT AU PRINCE 001628 
 
SIPDIS 
 
SOUTHCOM ALSO FOR POLAD 
WHA ALSO FOR USOAS 
 
E.O. 12958: DECL: 10/05/2014 
TAGS: PGOV, PHUM, PREL, PINR, HA, Security Situation 
SUBJECT: HAITI: BAR ASSOCIATION PRESIDENT ON IGOH'S FAILURE 
TO ADDRESS JUDICIAL REFORM AND SECURITY ISSUES IN THE 
COUNTRY 
 
 
Classified By: Deputy Chief of Mission Douglas Griffiths, REASONS 1.5(B 
) AND (D). 
 
1. (C) Summary: Poloff discussed the deplorable state of the 
judiciary, prolonged pretrial detention, and the 
deteriorating security situation in Haiti with Port-au-Prince 
Bar Association president Gervais Charles.  Charles 
acknowledged that the Haitian judicial system faces inherent 
structural and procedural problems, but he also suggested 
that many flaws could be addressed through a comprehensive 
plan of judicial reform, which the interim government has 
failed to implement thus far.  He offered Bar Association 
initiatives as examples of how reform could be achieved.  On 
security, Charles blamed the interim government for failing 
to respond to the aspirations of those in slum areas like 
Cite Soleil and Bel Air.  In his opinion, the violence which 
began in those areas some months ago was destined to spread 
throughout the capital and that if the trend continued, Haiti 
risked becoming "ungovernable."  Charles claimed that he was 
not seeking the position of minister of justice, but 
acknowledged that Minister Gousse had failed during his 
tenure.  End Summary. 
 
Prolonged Pretrial Detention and Other Judicial Woes 
--------------------------------------------- ------- 
2. (U) Well-versed on the Haitian legal system combined with 
over 20 years of experience, Gervais Charles assumed the 
presidency of the Port-au-Prince Bar Association in September 
2004.  Charles sasserted that the judicial system's 
dysfunction stems from a lack of proper case management at 
Port-au-Prince's court of first instance (parquet).  The 
parquet is where defendants are brought to be charged 
initially by the state prosecutor (commissaire du 
gouvernement), or for simple matters by the justice of the 
peace, before being placed in preventive detention while 
their case is investigated by the investigating judge (juge 
d'instruction).  Ideally this process is not supposed to take 
longer than 48 hours (the 48-hour rule, or garde a vu), but 
people are usually held in police stations (commissariats) 
for months, before ever going to the parquet.  (Note: Even if 
a defendant has gone before the judge of first instance at 
the parquet, it is possible that they might be shuffled back 
and forth between there and the police station, unless they 
have the means to pay off the judge or the police for their 
release. End Note.)  Charles suggested the Ministry allow the 
parquet to function around the clock and on weekends to 
reduce the number of people being held longer than the 
48-hour rule and to dispose of mundane cases in a timelier 
fashion. 
 
3. (C) Charles noted that the staff at the parquet is 
overwhelmed by its caseload and the building, poorly situated 
in downtown Port-au-Prince at the threshold of Bel Air, is 
bursting at the seems.  Recent concerns over violence in the 
area, lack of security, and continuing space deficiencies at 
the parquet have further decreased its capacity to function. 
He reported that the building is so insecure that judges 
sometimes refuse to risk their lives to appear for hearings. 
Charles also pointed out that since the judges handle cases 
on a rotating schedule, one judge's absence can throw off the 
entire rotation and further delay a case.  He proposed 
relocating the parquet to a more secure, existing 
government-owned facility situated between the main 
courthouse (palais de justice) and the National Penitentiary. 
 Charles said he presented his proposal to Justice Minister 
Gousse last month who replied that the ministry lacked the 
funds to effect such a move. 
 
4. (U) Charles also attributed the judicial system inertia to 
lack of judicial staff, from justices of the peace and 
investigating judges, to court clerks, to expedite cases 
through the system.  He used the current pretrial detention 
numbers to demonstrate his argument.  For the 1,500 detainees 
in Port-au-Prince prisons, there are only ten judges on staff 
to investigate their cases, at a ratio of 150 cases per 
judge.  (According to Haitian law, the investigating judge 
has two months to conduct the investigation and make a 
recommendation to the state prosecutor, who then has one 
month to review the case and make a determination on the 
penalty.)  Charles said that the statutory delay is now 
magnified times ten due to staffing deficiencies at every 
level.  He added that for criminal cases, the lack of trained 
forensic experts, in the investigating judge's office and in 
the police, further exacerbates the delay. 
 
5. (U) Charles offered the example of a recent initiative 
sponsored by the Bar Association designed to help alleviate 
the system's burdens.  In February 2005, the Port-au-Prince 
Bar began a legal assistance program which provides poor 
defendants with pro bono legal representation by law 
students.  This program began in conjunction with the special 
sessions targeted at reducing the rolls of those in pretrial 
detention initiated by the dean of the court (doyen).  Since 
February, Charles reported that approximately 100 law 
students have canvassed the prisons and police stations 
throughout the capital, identified those in need of legal 
representation, and assisted in moving several cases at 
various stages through the judicial mechanisms (Note: 
According to the Port-au-Prince dean's office, from March 
through mid-April, 38 cases have been adjudicated through the 
special session, resulting in a mere 10 release orders 
through mid-April.  End Note.)  The recent graduation of 30 
law students from the program and the precarious location of 
certain prisons and police stations (Cite Soleil, Fort 
National) has slowed the pace of the program a bit, but 
Charles insisted that the program would continue.  Charles 
also mentioned that the Bar Association announced last week 
that it would provide legal representation for victims of the 
May 31 Marche Tete Boeuf fire if they decide to pursue legal 
recourse. 
 
IGOH and Security 
----------------- 
6. (C) Charles blamed the government for the recent decline 
in security in the capital.  In his estimation, the interim 
government had never developed a clear strategy on how to 
foster dialogue with Lavalas partisans in the key 
neighborhoods like Cite Soleil and Bel Air.  He said the 
prime minister further aggravated the tensions when he was 
quoted in the press as saying that the violent crime in the 
capital was "localized" in certain neighborhoods.  The IGOH 
further sowed the seeds of resentment in the popular 
neighborhoods by affording tax breaks to the business owners 
who suffered losses during the political crisis in 2004, 
without doing anything to improve the lives of the poor.  He 
pointed to the current trend of violence spreading out from 
Bel Air and Cite Soleil as an inevitable outcome of the 
government's failure to develop a comprehensive approach to 
security. 
 
Ministerial Ambitions? 
---------------------- 
7. (C) Asked how he would address judicial reform if he were 
Minister of Justice, Charles responded that he would prefer 
to retain his position at the bar association and had no 
desire to hold a cabinet level position.  Charles said that 
he has had several discussions with fellow lawyer and bar 
member Justice Minister Gousse concerning Gousse's role.  He 
told Gousse that he did not envy his position and that it 
took a great deal of courage to be minister of justice in 
Haiti, but that he must also "do the job he was selected to 
do."  In Charles' opinion, Gousse had failed to rise to the 
task. 
 
8. (C) Charles criticized Gousse for lacking a clear strategy 
to address the problems with the judicial system.  He said 
that Gousse often made short-sighted decisions without 
factoring in the consequences for the entire judicial system. 
Charles cited the example of Gousse's caseload reassignment 
of two corrupt investigating judges, Fleury and Fabien.  In 
Charles' view, Gousse missed the opportunity to implement 
measures tackling the larger issue of judicial corruption. 
Charles also expressed his disappointment at Gousse's failure 
to make more progress on the judicial independence commission 
and for failing to consult with the Bar Association on the 
commission's agenda. 
 
Comment 
------- 
9.(C) Overall, Gervais Charles presented sound initiatives to 
address key deficiencies in Haiti's justice system.  Given 
the appropriate resources to execute his strategy, he could 
probably make a positive impact on judicial reform.  His 
tenure as Bar Association president has been productive thus 
far and he promised to continue pushing his programs forward. 
 Charles has been mentioned as a possible replacement for 
Gousse, if and when the PM shuffles his cabinet again. 
Businessman Reginald Boulos is one who has pushed this with 
us saying Charles is "clever but not stubborn like Gousse, 
and would listen to those who press him to address the real 
problems of prolonged detention."  Charles, however, was a 
well-known G-184 activist and Andy Apaid's lawyer, so he 
would likely be greeted with skepticism by pro-Lavalas 
partisans here and in the diaspora. 
 
BioNote 
------- 
10. (C) An avuncular figure, Gervais Charles is well into his 
fifties, and speaks perfect English.  He has a warm 
personality and gentle manner, but speaks rather 
authoritatively on legal matters. 
FOLEY