WIKILEAKS June 13th, 2005 & March 23rd, 2005 On Bernard GOUSSE and the Interim Gouvernment

ID: 34539 date: 6/13/2005 13:52 refid: 05PORTAUPRINCE1628 origin: Embassy Port Au Prince classification: CONFIDENTIAL destination: header: This record is a partial extract of the original cable. The full text of the original cable is not available. ------- header ends ---------------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 asserted 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 Portau-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 =======================CABLE ENDS============================

id: 29453 date: 3/23/2005 20:48 refid: 05PORTAUPRINCE795 origin: Embassy Port Au Prince classification: CONFIDENTIAL destination: 05PAP666 header: This record is a partial extract of the original cable. The full text of the original cable is not available. ----------------- header ends ---------------C O N F I D E N T I A L SECTION 01 OF 03 PORT AU PRINCE 000795 SIPDIS WHA/EX PLEASE PASS USOAS SOUTHCOM ALSO FOR POLAD E.O. 12958: DECL: 03/17/2015 TAGS: PGOV, PHUM, PREL, HA SUBJECT: SUPREME COURT REJECTS TRANSFER OF NEPTUNE/PRIVERT CASES TO PORT-AU-PRINCE REF: PAP 666 Classified By: AMBASSADOR JAMES B. FOLEY, REASONS 1.5(B) AND (D).

1. (C) Summary: The Haitian Supreme Court rejected March 18 a motion to transfer from St. Marc to Port-au-Prince the linked cases of former Prime Minister Yvon Neptune and co-defendant former Interior Minister Jocelerme Privert. Both are charged with involvement in the February 2004 massacre in Saint-Marc of Aristide opponents and civilians. The decision short circuited the IGOH's efforts to find a quick resolution to Neptune's case, which poses grave dangers for the IGOH in the event Neptune should die (which would result in international condemnation) or in the event Neptune is freed without a judicial reckoning. Internal criticism of PM Latortue's handling of the case and of the international community's perceived meddling is narrowing the IGOH's options. IGOH leaders told Ambassador they will undertake another effort to effect the change of venue and are prepared to take huge political risks to make it happen. Should this effort fail we will be looking at extra-judicial solutions whose political cost to the fragile IGOH will be even higher. End Summary. The IGOH Gameplan... ---------------------2. (C) The IGOH's gameplan last week was to get Neptune's case transferred from St. Marc to the capital and thereby arrange for him a swift hearing from a Port-au-Prince judge. Since Neptune's case is linked to Privert's, approval of Privert's pending changeof-venue request would have accomplished this. The alternative was to persuade the St. Marc investigating judge to relinquish the case and the St. Marc state prosecutor (Commissaire de Gouvernement) to request a change-of-venue on that basis. PM Latortue told us that his government had identified a judge in Port-au-Prince who would be willing to interview Neptune and evaluate the charges against him. Latortue expressed concern, however, that the judge and prosecutor might be reluctant to act given the possibility of a violent reaction in St. Marc.

3. (C) On March 16 PM Latortue informed Ambassador that Commissaire Jules had traveled to the capital and been persuaded to accept the plan and to transmit the appropriate communications to the Supreme Court. Latortue explained to Ambassador that he had "moved heaven and earth" in his home base in the Artibonite to persuade Commissaire Jules to write the necessary letter, and said that President Alexandre was expected to discreetly weigh in with his former colleagues on the Supreme Court. By Thursday March 17, the Supreme Court had before it the letter from Jules stating his opinion on the Privert change-of-venue request. In a meeting that day with embassy human rights officer, Justice Minister Gousse said that he had personally called the vice-president of the Supreme Court, Georges Henry, to urge the court to make a decision before the judicial Easter recess. ...goes awry ---------------4. (C) In the end, neither the Commissaire nor the Supreme Court played ball. President Alexandre's Chief of Staff Michel Brunache attributed the judges' decision to fear of the likely violent reaction in the event they had decided to grant the change of venue request. (Note: This is underscored by the fact that the members of the court had apparently tried to flee the country on an early Easter break in order to avoid having to render a judgment in the case. Latortue slapped a travel ban on the members and forced them to act on the case before departing on vacation. End Note.) In the event, it turned out that the Commissaire actually recommended against Privert's change of venue request and the Supreme Court readily endorsed this recommendation, thus dealing a sharp blow to the President and the Prime Minister -- and to our hopes of achieving a legal resolution to the Neptune case that shields the IGOH from a political backlash it can ill afford. 5. (C) It is not clear where things go from here. MINUSTAH officials are looking urgently for a legal and defensible solution that would ensure a modicum of respect for the judicial process. The investigating judge could still request a recusal which, if the state prosecutor endorsed it, could be presented to the Supreme Court, but that seems unlikely given the public pressure in St. Marc. Latortue has floated the idea of taking Neptune to St. Marc under heavy guard for a hearing; any public disorder would then be used to justify another request to the Supreme Court to transfer the case on security grounds. (Justice Minister Gousse in fact indicated that this was the government's intent in a March 22 radio interview.) Neptune said last week that, regardless of the court's decision, he would neither see a judge nor cooperate in the judicial process (although he could be compelled to at least appear in court). SRSG Valdes barely persuaded Neptune to temporarily halt his hunger strike prior to the Supreme Court's decision, and Neptune has said that he is prepared to resume the strike unto death if the IGOH does not capitulate and simply free him. All is not lost? --------------

6. (C) Ambassador met with the President, Prime Minister, and Brunache late in the afternoon of March 21 to discuss other possibilities for resolving Neptune's case. Latortue indicated acceptance of the Ambassador's argument that it was too dangerous to take Neptune to a hearing in Saint-Marc. Instead, the President and the PM agreed to make another push to persuade the Commissaire in Saint-Marc to petition the Supreme Court for a change in venue, on the basis of security concerns (last week's Privert petition was based on the potential for bias among a jury in St. Marc). They plan to fire him and name a new Commissaire in the likely event he refuses to comply. They also eagerly embraced a UN proposal, conveyed by the Ambassador, to put Neptune in a house that would be designated as an Annex to the National Penitentiary once he is released from the Argentine military hospital. 7. (C) The Ambassador, stressing the utter unacceptability of Neptune dying in IGOH custody, explored other options in the event that legal remedies are exhausted. He suggested for example that the IGOH might consider declaring a pause in the legal process on the grounds that the situation in Haiti was too fragile for the IGOH to handle a case of this magnitude; it could be left for the elected government in 2006. The President and Prime Minister did not rule this out, noting that it might be sustainable if the house/annex idea comes to fruition. Second, the Ambassador conveyed a suggestion from Deputy SRSG Medili that the IGOH consider allowing an international or "mixed" tribunal to deal with Neptune's case, as well as with a number of other outstanding controversial cases. After initial hesitation, the IGOH leaders went farther, proposing that the Security Council itself establish an international tribunal for Haiti. They felt that this approach would be more politically palatable and represent the only possibility for Haiti to escape from the decades-old cycle of impunity. Latortue suggested that an international tribunal could tackle the toughest oustanding cases, including the murders of Jean Dominque and Brignol Lindor. Latest Developments ----------------8. DSRSG Medili was pleased with the Ambassador's readout of the meeting, and set the wheels in motion to effect an eventual transfer of Neptune to a house in Port-auPrince. In a subsequent conversation after consulting with SRSG Valdes (who is in the U.S.), Medili threw cold water on the idea of the Security Council formally establishing an international tribunal, saying the view in New York was that it would be too costly and time-consuming. Instead, MINUSTAH would seek to pay for international jurists or legal experts to assist IGOH authorities in handling Neptune and other difficult cases. (OAS Special Rep Modeste told Ambassador March 22 that the OAS would be willing to assist in such an effort as well.) 9. Brunache told the Ambassador at a palace dinner March 22 that he had indentified a succcessor Commmissaire for Saint-Marc. Now the PM would have to decide whether to make another go at the current Commissaire or simply fire him without further ado.

Brunache expected a negative political outcry over this (and Neptune's transfer to a residential "prison" annex) that would rock the government. Whether the IGOH could survive the reaction he thought would depend on the context -- notably whether MINUSTAH was taking military-type action against the pro-Aristide criminal gangs (MINUSTAH's recent action against the renegade ex-FADH was largely playing against the IGOH, according to Brunache). Ambassador conveyed (and echoed) this perspective to DSRSG Medili March 23. Medili responded that MINUSTAH was aware of the perception and was "planning steps to change that perception." Medili and Guindo were expecting to meet with Latortue on the Neptune issue later March 23rd. Comment -----10. (C) The Supreme Court decision was a spectacular blow against our efforts to promote a resolution of the Neptune case in conformity with Haitian constitutional and legal procedures. The IGOH is faced with an almost impossible dilemma -- the choice of international opprobrium if Neptune dies in prison, or a heavy-handed, political intervention that may produce a collapse of what little domestic support it enjoys. The incendiary criticism of Neptune's previous transfer to the Argentine military hospital leveled by the G-184, most political parties and the human rights community has reduced the IGOH's maneuvering room to a minimum. The IGOH needs cover for its next move. We are endeavoring to work with business leaders, political parties and human rights groups to create space for an eventual solution. Whether Minister of Justice Gousse (whose wife's bodyguard was assassinated yesterday) is willing to be a part of that solution or an obstacle to it remains to be seen. The good news is that the President and Prime Minsiter seem united and determined to assume the considerable political risks that any resolution will entail. FOLEY =======================CABLE ENDS=======================