III. The Proceedings against Duvalier
Shortly after Duvalier fled the country in 1986, the new government established a commission to investigate the financial corruption of the Duvalier government and later instituted criminal proceedings against Duvalier for financial crimes. In 2008, another investigation was opened and included crimes against persons. The government re-instituted these pending cases when Duvalier returned in January 2011. Under Haitian law and procedural rules, the government has until May 19, 2011, to complete its investigation and charge Duvalier.
The 1986 proceedings began on April 18, 1986, when the state prosecutor (Commissaire du gouvernement), Ulrick Rosarion, issued instructions for the investigation of members of the Duvalier government, referred to as the “Duvalier criminal organization.” Investigating judge (juge d’instruction) Emmanuel Dutreiuil was assigned to the case. The same year, cases were instituted against several of the members of his government, including Luc Desir, an official in Duvalier’s government who also served as chief of the secret police under Duvalier-père, for crimes including murder and torture. On January 15, 1987, the governor of the Bank of the Republic of Haiti issued a report concluding that sufficient evidence existed that Duvalier alone stole over $120,000,000 from the public coffers of Haiti and that members of his family and government stole hundreds of millions of dollars more.
On June 9, 1999, a supplemental instruction enumerating the allegations in the original 1986 instruction was sent to a new investigating judge on the case, Pierre Josiard Agnant, who brought charges against Duvalier and Frantz Merceron for bribery and corruption, Duvalier’s wife Michèle Duvalier for corruption and as an accomplice to bribery, and several other named defendants for corruption.[139] On April 29, 2008, another investigation against Duvalier was opened by the state prosecutor (Commissaire du gouvernement), Claudy Gassant; it included the allegations of financial crimes and added crimes against persons, including potential crimes against humanity. This case was referred to investigating judge (juged’instruction) Bernard Saint Vil, and was open when Duvalier returned to Haiti after his 25-year exile.
Commissaire du gouvernement Harycidas Auguste re-instituted this pending criminal case when Duvalier returned in January 2011. Saint Vil was no longer available to handle the case, and it was referred to investigating judge Carvés Jean on January 19, 2011, with instructions to investigate both alleged financial crimes and crimes against persons, including murder, torture, arbitrary detention, and disappearances. On January 19, 2011, Duvalier submitted to questioning on corruption and embezzlement allegedly committed during his 15-year rule. In addition, several victims of the Duvalier government came forward and filed complaints with the government. Their complaints formed the basis of further instructions by the commissaire to investigate Duvalier for human rights violations, including crimes against humanity. As of March 28, 2011, 16 Haitian victims of Duvalier had filed complaints with the state prosecutor related to crimes against humanity and human rights violations, including extrajudicial killings, torture, and enforced disappearances.[140]
The procedural clock for the investigation began on January 19, 2011, giving the investigating judge three months to determine whether charges should be brought against Duvalier. The investigating judge may request an additional month, though these time limits are rarely adhered to in practice. During this time, the judge may call in witnesses and carry out other investigative acts. As of March 19, 2011, a number of victims had been brought before the judge for questioning, as well as two former finance ministers. At the end of the investigative period, the investigating judge will issue a notification to the commissaire (“Soit communiqué”), alerting him that the investigation is complete. The commissaire may then provide the judge with a final resubmission (“Requisitoire definitif”) on the charges. The judge will consider the evidence and will ultimately decide if charges will be brought.
[139] On interlocutory appeal, the Cour de Cassation, Haiti’s highest court, found on July 24, 2001 in favor of appellants Jean Sambour and Alexandre Paul , who argued that the Cour lacked jurisdiction over the case until the Cour Supérieure des Comptes etdu Contentieux Administratif issued an avis de débit in the case.
[140] According to representative of the government of Haiti, Andre Antoine, before the Inter-American Commission for Human Rights, March 28, 2011. See “Impunity for Human Rights Violations during the Duvalier Dictatorship in Haiti,” Hearing of the Inter-American Commission for Human Rights, available at http://www.cidh.oas.org/prensa/publichearings/Hearings.aspx?Lang=En&Session=122&page=1 (accessed April 1, 2011).
