The judicial activity of the interested party
With respect to the second point to bear in mind for determining
reasonableness of time, in other words, the judicial activity of the
interested party, the fact that during the proceeding the attempt was
made to reach a friendly settlement agreement between the petitioners
and the State did not release the Haitian court from the obligation to
ensure compliance with the Convention as regards reasonable time.
Moreover, at no time has the State alleged any activity by the
petitioners that prevented the court from carrying out a serious
investigation in the instant case.
The IACHR finds that the petitioners cannot be held responsible
for a delay in the instant case.
The behavior of the judicial authorities
Regarding the behavior of the judicial authorities, the third
point under consideration, the IACHR regards as unreasonable the period
of more than eight years that has elapsed between October 1993, the year
of Mr. Malary’s death, and the present.
In spite of the complexity of the case, the IACHR finds that
there were periods of procedural inaction on the part of the Haitian
authorities that cannot be justified by the difficulties in the
collection of evidence.
Indeed, examination of the body of evidence garnered over more
than eight years since the death of Mr. Malary, reveals periods of
inaction on the part of the authorities in charge of the investigation.
Concretely, in the instant case, according to the allegations of
the petitioners which have not been refuted by the State, after the
events of October 1993, a serious investigation was not opened until the
end of 1994, after the return of constitutional rule in Haiti, in other
words almost a year later. The
IACHR bears in mind that it was not until the end of 1994 that President
Jean Bertrand Aristide returned to the country and constitutional rule
was restored, and that during that time judicial remedies were either
non-existent or ineffective. However,
in accordance with the principle of the continuity of the State,
international responsibility exists regardless of changes of government,
and, therefore, this period of more than one year before the
investigation stage was opened is attributable to the Haitian State.
The petitioners further alleged that it was not until May 1996
that 11 arrest warrants were issued for a number of persons suspected of
the murder. In the opinion
of the Commission the State has not justified the delay between the
opening of the investigation at the end of 1994 and the issue of arrest
warrants in May 1996.
The petitioners have alleged that in July 1996 two new files were
sent to the judge in charge of the investigation in the case.
The files contained the investigations into two other former
military officers accused of the murder of Mr. Malary.
According to the information available to the IACHR, the file was transmitted
to the tribunal in April of 1997 and, in June of the same year, was sent
to the Prosecutor’s Office (the Parquet), so that the last pleadings
be prepared, and that from that date the state of the file is unknown.
However, the State later reported that these files were stolen
from the car of an assistant to the government attorney,
and it was not until January 6, 2000 that the file was reconstructed for
the respective investigation, which, to date, has yet to be carried out.
The IACHR notes that the State has delayed the efforts that it
had initiated. It notes
that it has been informed that most of the accused had fled the country
and that President René Préval, in 1996, had sought the collaboration
of the Government of the United States in the extradition of Mr.
According to the petitioners, the extradition was refused due to
formal defects and this request has not been reiterated.
The State has neither denied nor refuted these facts, nor has it
indicated that it has corrected or reiterated the extradition request,
or that it has attempted to obtain evidence from Mr. Constant.
The IACHR finds that this
delay in expediting efforts to obtain evidence is imputable to
the Haitian State despite the fact that in judicial cooperation between
countries to obtain evidence each government depends on the
collaboration of the other.
Further, the IACHR notes that the State has not provided
information that it has requested the extradition from other countries
of the other persons for whom an arrest warrant has been issued, or, in
the event they are in the country, about any difficulties for their
apprehension and prosecution. The
Commission finds that these delays in taking steps to investigate and
establish who is responsible for the death of Mr. Malary are imputable
to the State and unwarranted.
The petitioners informed the IACHR that on February 2, 2000, the
State sent a communication to the petitioners in which it informed them
about the referral of the file on an unknown person to the judge in
charge of the investigation in the case.
Since that communication, the case has remained at a halt.
The IACHR reminds the Haitian State that states party to the
Convention are under obligation to organize their judicial systems so
that their courts can ensure the right of each person to obtain a final
decision on their rights and obligations within a reasonable time.
Therefore, bearing in mind the three points analyzed above (the
complexity of the matter, the judicial activity of the interested party,
the behavior of the judicial authorities)
the IACHR considers that the elapsed period of more than eight years
between the homicide of Mr. Malary and the date of adoption of the
instant report, without a final judgment issued or the identities of
those responsible determined, exceeds the limits of reasonableness
provided by Article 8(1) of the American Convention.
Right to an impartial tribunal (Article 8(1))
An impartial tribunal is one of the core elements of the minimum
guarantees in the administration of justice.
With respect to the scope of the obligation
to provide impartial tribunals in accordance with Article 8(1) of the
American Convention, the IACHR has said previously that impartiality supposes that the judge or tribunal does not have any
preconceptions on the case sub
Further, the Inter-American Commission, in the same way as other
international organs for the protection of human rights,
has drawn a distinction between two aspects of impartiality, one
subjective and the other objective.
The subjective aspect of the impartiality of the tribunal refers
to the personal conviction of a given judge in a given case, and the
subjective impartiality of the judge is assumed in a given case until
As to the objective aspect of impartiality, the IACHR considers
that this requires that the tribunal or judge offer sufficient
guarantees to exclude any doubt in respect of impartiality in the
If the personal impartiality of the tribunal or judge is assumed
until proved otherwise, an objective evaluation must determine
whether, quite apart from the judge's personal conduct, there are
ascertainable facts which may raise doubts as to his impartiality.
In the instant case, the parties have discussed whether or not
the jury that returned a verdict on the two persons accused of the
murder of Mr. Malary was impartial.
The Commission in the William Andrews v. United States case, examined if
a jury that issues a verdict must comply with the impartial tribunal
requirement provided in Article 8(1) of the American Convention.
Based on the reasoning contained in the aforementioned
jurisprudence, the Commission finds that in the case sub judice
there are a series of facts that raise doubts about the objective
impartiality of the jury that decided whether or not the persons
suspected of the killing of Mr. Malary bore responsibility for the
alleged a series of irregularities in the selection of the jury and in
the way it acted. In their
opinion, they were due to the improper relations that existed between
the jurors and the accused, as well as the connections of said jurors
with the previous government. Specifically,
they alleged that two jurors seemed to be personal friends of the
defense attorney, and one of the jurors was a television reporter
employed by the de facto
government, whom the government attorney assigned to the case allegedly
called an "enemy of democracy"; that the jury allegedly
applauded when one of the accused took the stand; that the attorney from
the Office of the Public Prosecutor assigned to the case is purported to
have said later that the jurors were bribed or expected to receive money
from one of the accused after the trial.
petitioners further said that a large proportion of the jurors
had openly shown contempt for the eyewitnesses presented by the Office
of the Public Prosecutor, who were homeless beggars.
The State did not dispute the allegations of the petitioners.
The State informed that on the day of the trial of one of the
accused, the attorney from the Office of the Public Prosecutor objected
to the composition of the jury for various reasons.
Inter alia, he said that there
were only 27 jurors present, when the law stipulates at least 32 jurors,
and that the judge was aware of that rule, yet he disregarded this fact
and continued to try the case.
With respect to the false verdict of the jury, at the hearing of
March 5, 1999 at the headquarters of the IACHR, the representative of
Haiti gave the following answer to the question of the Commission as to
whether or not the jury was bribed in the above-mentioned trial: “it
is clear that the jurors were bribed. (…) During the trial proceedings
one of the alleged murderers could be seen leaving his place and going
to talk to the jurors.”
80. The IACHR also notes that the state Prosecutor's communication before the superior Court (pourvoi en appel), claimed that only 28 jury candidates were present when 30 were required; the presiding judge accorded to suspend the hearing when one of the defendant was standing before the jury--far from the chair of the defendant--instead of ordering him to go to its place; during the trial, the jury applauded one of the defendant when he was testifying. This information confirms the petitioner's arguments before the IACHR. The IACHR concludes that the jury in this trial of two suspects of Mr. Malary's murder was partial and, therefore there is a violation of the right of due process established in Article 8(1) of the American Convention by the Haitian State.
Right to judicial protection (Article 25)
81. Article 25(1) of the Convention says that "[e]veryone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties.”
The Inter-American Court has found that Article 25 obliges the
State to guarantee to every individual access to the administration of
justice and, in particular, to simple and prompt recourse, so that those
responsible for human rights violations may be prosecuted and
reparations obtained for the damages suffered.
Under Article 25 of the American Convention, the Haitian State
has the obligation to provide an effective judicial remedy against
violations of the fundamental rights it contains.
An effective legal remedy requires an investigation that meets
the due process standards set down in Articles 8 and 25 of the American
Convention. Taken together, Articles 8 and 25 create a positive
obligation “to provide access to justice with guarantees of
legality, independence, and impartiality, within a reasonable period of
time, as well as the general obligation to provide effective judicial
recourse against acts that violate fundamental rights.”
The Court refers to this Article when it finds: "Those
principles refer not only to the formal existence of such remedies, but
also to their adequacy and effectiveness."
83. In the instant case, the Commission finds that, to date, more than eight years and five months have passed since the events described in the petition occurred in October 1993, without a complete investigation carried out that might make it possible to establish responsibility and punish the persons guilty of the murder of Mr. Malary. The Commission has already explained that the effectiveness of a judicial remedy will be “gravely affected” by the “enormous time lapsed” between the death of the victim and the decision on reparations.
The Commission also finds in the instant case that the impetus to
proceed with the investigation of the facts came from the petitioners,
who constantly furnished evidence for the investigations carried out by
the State and by the MICIVIH. The
State displayed a certain amount of activity in that criminal proceeding
by issuing arrest warrants for the multitude of suspects, most of which
were never served. Subsequently,
the State put on trial two of the suspects, who were acquitted of the
charges by a biased jury (supra,
paras. 74 et seq.). After that trial, the State proceeded with the investigations
pending at an increasingly slow pace to the point where currently the
proceeding is halted. The
Inter-American Court is clear when it finds that the duty to investigate
“must be undertaken in a serious manner and not as a mere formality
preordained to be ineffective. An
investigation must have an objective and be assumed by the State as its
own legal duty, not as a step taken by private interests that depends
upon the initiative of the victim or his family or upon their offer of
proof, without an effective search for the truth by the government.”
Accordingly, the Commission observes that the judicial remedies
have not produced any result thus far, and the proceeding has been
delayed for more than eight years without establishing the
responsibility of any of the persons who carried out or planned the
murder. Further no
compensation has been provided to the victim’s next-of-kin.
Therefore, the judicial remedies have been ineffective and the
Haitian State has thus breached its obligation to provide judicial
protection to victims whose fundamental rights have been violated.
86. The petitioners held that the international investigators appointed by President Aristide, and, subsequently, the Lawyers Committee, identified at least 20 persons who were either directly or indirectly involved in the planning and execution of the murder of Mr. Malary, and that warrants were issued for their arrest, yet the authorities of Haiti only arrested three people. In that respect, the State alleged that the other arrest warrants were not served because most of these persons were in exile; that proceedings were instituted against 11 persons in abstencia or for contempt of court; and that the necessary measures had been adopted to determine the whereabouts of these individuals.
87. By the same token, with respect to one of the accused for whom an arrest warrant was issued but who later had been released, the State says that was due to a judicial decision, but that subsequently two arrest warrants were issued for him because of rumors that he was still in the country. The State mentioned that said capture was not achieved because of “enormous problems” finding him, and because the country was in a difficult period of adjustment after the dictatorship. The IACHR finds that the omissions of the Haitian State in finding the people for whom arrest warrants were issued and who it says, are in exile, impair the effectiveness of the investigation.
88. The IACHR also notes that the obligation to carry out an effective investigation can be affected by delays in the adoption of measures to secure the collaboration of other countries in the collection of evidence and the appearance in the domestic courts of persons who have been accused. According to the information supplied by the petitioners, which have not been refuted by the State, the extradition request for Mr. Emmanuel Constant, --the leader and founder of the FRAPH implicated in the murder of Mr. Malary, who currently resides in the United States--, was found to be defective by the United States Government. Therefore it has not been processed and Haiti has made no further effort to correct or renew the request.
Inter-American Court has found that “in certain circumstances, it may
be difficult to investigate acts that violate an individual's rights”
and that "the duty to investigate, like the duty to prevent, is an
obligation of means and is not breached merely because the investigation
does not produce a satisfactory result.
Nevertheless, it must be undertaken in a serious manner and not
as a mere formality preordained to be ineffective.”
The Commission considers that the cover up of the investigations
of Mr. Malary's murder, the delays in adopting measures to move the
investigation forward, the verdict of a biased jury that acquitted the
two accused, constitute actions and omissions that impair the
effectiveness of the domestic remedies as provided in Article 25 of the
American Convention. The
Inter-American Court of Human Rights has ruled that “if the State
apparatus acts in such a way that the violation goes unpunished and the
victim's full enjoyment of such rights is not restored as soon as
possible, the State has failed to comply with its duty to ensure the
free and full exercise of those rights to the persons within its
In the instant case, the murder of Mr. Malary remains unpunished to
date, without responsibilities established or punishment imposed, in
spite of the large amount of evidence in the possession of the State,
which still has several files open on the case.
Therefore, based on the above factual and legal arguments, the
Commission concludes that the State has breached its obligation to
investigate the execution of the victim and to prosecute those
responsible in accordance with the standards provided in Article 25 of
the American Convention.
Duty to respect rights (Article 1(1))
Article 1(1) of the American Convention provides that,
herein and to ensure to all persons subject to their jurisdiction the
free and full exercise of those rights and freedoms, without any
discrimination for reasons of race, color, sex, language, religion,
political or other opinion, national or social origin, economic status,
birth t]he States Parties to
this Convention undertake to respect the rights and freedoms, or any
other social condition.
93. The Commission reminds the Government of Haiti, that as a state party to the American Convention, it has the obligation to carry out investigations, impose punishment, and, as necessary, compensate the victims of alleged violations. The Commission is not oblivious to the difficult situation in the country, and is conscious of the efforts of the constitutional government to strengthen mechanisms for protection of human rights. States have the duty to investigate extrajudicial executions committed by its agents. Measures intended bring about extrajudicial executions of persons, to tolerate them, to not adequately investigate them or punish, as necessary, those responsible, leads to the violation of the duty to respect the rights recognized by the Convention and to ensure the free and full exercise of those rights (Article 1(1)).
According to the provisions contained in Article 1(1), the State
has the obligation to investigate violations committed within its
jurisdiction, to identify those responsible, to impose the appropriate
punishment and to ensure the victim adequate compensation.
The Commission finds that according to the instant Report, the
State violated Article 4 to the detriment of Mr. Guy Malary and Articles
8 and 25 to the detriment of Mr. Malary’s next-of-kin, on which basis
it has breached the general duty to respect the rights and freedoms
recognized in the American Convention and to guarantee the free and full
exercise thereof, in accordance with Article 1(1) of the Convention.
ACTS TAKEN SUBSEQUENT TO REPORT N° 24/02
The IACHR examined this case during its 114° session and
approved its preliminary Report Nº 24/02 on the merits of the case, in
accordance with Article 50 of the American Convention, and makes
proposals and recommendations as it saw fit.
According to Article 51(1) of the Convention, within a period of
three months from the date of the transmittal of the aforementioned
Report to the State, the IACHR shall determine whether the matter has
not either been settle or submitted by the Commission to the Court.
In this case none of these circumstances have taken place.
On one side, the State has not settled the matter.
In fact, since the date of the transmittal of the Report Nº
24/02 to the Haitian State, it has not answered the IACHR’s request,
it has not been in contact with the Commission regarding this case,
neither has taken any measure, in the knowledge of the IACHR, to comply
with the recommendations.
On the other side, the IACHR have not submitted the case to the
decision of the Court. According
to Article 44(1) of the IACHR rules, unless there is a reasoned decision
by an absolute majority of the members to the contrary, the Commission
shall refer the case to the Court.
In the instant case, the IACHR decided by a vote of absolute
majority not to send the case to the Court considering, fundamentally,
that the original petitioner, The Lawyers Committee for Human Rights,
expressed that they did not want to continue the case before the Court.
The IACHR is aware of the nature and seriousness of the violation
of human rights found in the instant case and appreciates the
declarations made by the representatives of the State to the IACHR
delegations during its two in situ
visits to Haiti on 2002. In
their statements, the representatives of the State expressed their
willingness to investigate and pay a compensation to the next of kind of
the victim, in accordance with the principle pacta
sunc servanda, by which
States must comply with their treaty obligations in good faith.
99. Accordingly and pursuant Article 51(2) of the American Convention, the Commission decides to reiterate the conclusions and recommendations contained in the preliminary Report N° 24/02, adopted by an absolute majority and as a final Report, in accordance with Article 45(1) of its Rules.
Based on the factual and legal arguments given above, the
Inter-American Commission on Human Rights concludes that the Haitian
State has violated to the detriment of Mr. Guy Malary and his surviving
next-of-kin, the following rights enshrined in the American Convention:
The Haitian State violated the right to life enshrined in Article
4 of the American Convention to the detriment of Mr. Guy Malary.
The Haitian State violated the right to a fair trial and the
right to judicial protection enshrined in Articles 8(1) and 25 of the
American Convention to the detriment of the next-of-kin of Mr. Guy
The above mentioned violations of human rights involves that the
Haitian State breached the general obligation to respect and guarantee
rights under Article 1(1) of the above-cited international instrument,
to the detriment of Mr. Guy Malary and his next-of-kin, and that the
Haitian State is obliged to investigate the facts, sanction those
responsible and repair the consequences of these violations and pay
compensation to Mr. Guy Malary’s next-of-kin.
Based on the foregoing analysis and the previous conclusions, the
IACHR reiterates the following recommendations:
a) Carry out a full, prompt, impartial, and effective investigation within the Haitian ordinary criminal jurisdiction in order to establish the responsibility of the authors of the violation of the right to life of Mr. Guy Malary and punish all those responsible.
Provide full reparation to the next-of-kin of the victim, inter
alia, the payment of just compensation.
c) Adopt the measures necessary to carry out programs targeting the competent judicial authorities responsible for judicial investigations and auxiliary proceedings, in order for them to conduct criminal proceedings in the accordance with international instruments on human rights.
102. On November 20, 2002, a copy of report Nº 61/02, adopted by the Commission under Article 51 of the Convention, was sent to the State, pursuant to Article 51(2) of the Convention. The Commission gave the State a period of 15 days to notify it of the measures it had taken to follow up on the Commission’s recommendations. On November 27, 2002 a copy of report Nº 61/02 was also sent to the complainants, in keeping with Article 45 of the Rules of Procedure of the Commission. The Commission gave them a period of 15 days to notify it of the measures taken by the State to follow up on the Commission’s recommendations. The State did not submit its observations to the Commission, within the period the latter had established, concerning the measures it had taken to follow up on the Commission’s recommendations. On December 12, 2002 the complainants submitted their observations in this regard to the Commission. They said that the State had not taken any measures with regard to the Commission’s recommendations, notwithstanding the fact that it was in possession of documents seized by the American forces in 1994, which contained information on the FRAPH.
103. In view of the foregoing, the failure of the State to reply, and the observations made by the complainants on report Nº 61/02, the Commission, acting pursuant to Article 51(3) of the Convention and Article 45(3) of its Rules of Procedure, decides to ratify the conclusions and reiterate the recommendations set forth in this report, to publish it, and to include it in its annual report to the General Assembly of the Organization of American States. The Commission, in keeping with the rules established by the instruments governing its mandate, will continue to evaluate the measures taken by the Haitian State in response to the recommendations and will continue to do so until such time as they have been fully implemented.
and signed at the headquarters of the Inter-American Commission on Human
Rights in the city of Washington, D.C., on the 27th day of
the month of December, 2002. (Signed): Juan E. Méndez, President; Marta
Altolaguirre, First Vice-President; José Zalaquett, Second
Vice-President; Robert K. Goldman, Clare Kamau Roberts, Julio Prado
Vallejo and Susana Villarán, Commissioners.
See, Note of Mr.
Bazelais, Director of Judicial Affairs of the Ministry of Justice
and Public Security, to Mr. Beaglehole, attorney of the Lawyers
Committee for Human Rights. February 2, 2000, Port-au-Prince.
See, Report Nº 17/94, Guillermo Maqueda, Argentina, OEA/Ser.
L/V/II.85, Doc. 29, February 9, 1994 para. 28. Not published. The
European Court of Human Rights has found in the same sense in the
Piersack case, Judgment of 1 October 1982, series A, Nº 53, p.14,
para. 30. The “Basic Principles on the Independence of the
Judiciary” adopted by the Seventh United Nations Congress on the
Prevention of Crime and the Treatment of Offenders, 1985, say that
the impartiality of a judge requires, inter alia, that he
must have no preconceptions or bias, nor take the side of any of the
parties in a case before him. It
is a psychological attitude of probity and rectitude for seeking the
truth in the proceeding on the basis of the material truth.
For the European
Court, the impartiality of the judge is composed of subjective and
objective elements. The European
Court has developed extensive case law on this subject.
See, for example, the cases of Piersack, De Cubber, Hauschildt.
See Case of Saint-Marie v. France Report of the European Commission
of Human Rights, 16 E.H.R.R. 116, para. 50, and European Court of
Human Rights, Case of Piersack v. Belgium (1982), 5 E.H.R.R. 169,
The IACHR pronounced
on the impartiality of the jury in Report Nº 57/96, Case 11.139,
William Andrews v. the United States, of December 6, 1996.
Furthermore, the United Nations Committee to Eliminate Racial
Discrimination has held that a reasonable suspicion of bias is
sufficient for juror disqualification, and stated that: "it is
incumbent upon national judicial authorities to investigate the
issue and to disqualify the juror if there is a suspicion that the
juror might be biased". See Case of Narrainen versus Norway, UN
Ctte. Elim. Racial Discrim, Communication Nº 3/1991, views adopted
15 March, 1994. In the Case of Remli versus France (Application No.
00016839/90, Judgment of 23 April 1996), the European Court of Human
Rights referred to the principles laid down in its case-law
concerning the independence and impartiality of tribunals, which
applied to jurors as they did to professional and lay judges and
found that there had been a violation of Article 6(1) of the
Admissibility of the Petition on the Malary Case, Lawyers Committee
for Human Rights and Debevoise & Plimpton, New York, New York,
September 8, 2000, p.5 (hereinafter, Memorandum on Admissibility of
Commission on Human Rights. Report Nº 63/01, Case 11.710, Carlos
Manuel Prada González y Evelio Antonio Bolaño Castro, April 6,
2001, para. 37; Inter-Am. Ct. H.R., Bámaca Velásquez Case,
Judgment of November 25, 2000 para. 191.
Commission on Human Rights,
Report Nº 55/01, Case 11.286, Aluísio Cavalcante et. al.
April 4, 2001 para. 40; See ibid. para. 23 and 167.2 (determination
of delays of 8, 13 and 10 years to constitute violations of Articles
8 and 25); Report Nº 39/98, Case 11.774, Héctor Hugo Boleso, 24
September, 1998, para. 26 (underscores the need to avoid “undue
extensions which constitute an abridgement and a denial of justice”
to the detriment of people who claim that their rights have
Committee carried out an investigation that yielded nine items of
evidence relating to the murder of Mr. Malary, and resulted in the
issue of a series of arrest warrants in May 1996. The list of
suspects included the four persons identified by Mr. Morissaint
along with seven other names.
Velásquez Rodríguez Case, para. 158; Inter-Am. Ct. H.R., Godínez
Cruz Case, Judgment of January 20, 1989 para. 177.
See Principle Nº 18 on the Effective Prevention and Investigation
of Extra-Legal, Arbitrary and Summary Executions, Recommended by the
United Nations Economic and Social Council in resolution 1989/65, of
May 24, 1989: "Governments shall ensure that persons identified
by the investigation as having participated in extra-legal,
arbitrary or summary executions in any territory under their
jurisdiction are brought to justice. Governments shall either bring
such persons to justice or cooperate to extradite any such persons
to other countries wishing to exercise jurisdiction. This principle
shall apply irrespective of who and where the perpetrators or the
victims are, their nationalities or where the offence was