Wednesday, January 16, 2013

IJDH’s Take on Recent Délille Probe

by Kim Ives (Haiti Liberte)

Brian Concannon is a founder and director of the Institute for Justice and Democracy in Haiti (IJDH). He has had a ring-side seat to legal affairs in Haiti for almost two decades, acting as a UN Human Rights Officer, helping to prosecute human rights crimes in Haiti following the 1991-1994 coup d’état, representing former Prime Minister Yvon Neptune before the  Inter-American Court of Human Rights, and presently acting as a lead lawyer in the suit of 5,000 Haitian cholera victims against the United Nations.

            In an interview with Haïti Liberté, Concannon said that he views Port-au-Prince District Attorney Lucmane Délille’s recent opening of an investigation of former President Jean-Bertrand Aristide “in the context of a long history of baseless complaints against Aristide.”


            One of the first of these legal offensives was a civil complaint for financial malfeasance filed in a U.S. Court in Miami in November 2005 by the de facto regime of Prime Minister Gérard Latortue. “That complaint was filed with great fanfare, and was widely reported,” Concannon said. “The Interim Government of Haiti (IGH) and its U.S. supporters went on tour, to Washington, New York, and other places, with speaking engagements to discuss the complaint, which generated lots of press coverage.”

            “When you sue someone in the US, the first thing you do is file the complaint with the courthouse,” Concannon explained. “The second thing you do, typically immediately, is to engage a process server to actually serve the complaint on the defendants. The service is what actually starts the case going, requiring the defendants to respond, activating the case scheduling deadlines and so forth. It also gives the defendant the opportunity to do ‘discovery,’ to force the plaintiff to present its case. Although the Haitian government spent a lot a lot of money to hire a large Chicago firm to prepare and publicize the complaint, it never actually served the complaint on anyone. Aristide was in South Africa, which might have caused some obstacles, but many of the co-defendants were living openly in South Florida. Courts always have a deadline for serving the complaint after filing. The law firm obtained one extension to file, but again never served anything. Right before that extension expired in July 2006, the law firm asked the judge to voluntarily dismiss the case, ‘without prejudice’ – meaning they could refile... But the claim has never been refiled. The complaint did force several of the defendants to engage lawyers to prepare their defense, and to suffer significant anxiety about being dragged into an expensive, if baseless, suit. I have never seen a plaintiff fail to serve a defendant, other that one case. I cannot see any explanation other than that the whole case was a cynical public relations strategy, and a way for the IGH to apply pressure on and discredit Aristide.”

            In February 2012, there was another complaint prepared against Aristide in the Haitian justice system (see “The Curious Case of the ‘Warrants’ against Aristide,” Haïti Liberté, Vol. 5, No. 33, Feb. 29, 2012). The complaint was based on a report drawn up by the Central Unit for Financial Inquiry and Research (UCREF), which was the same document that formed the basis of the unserved U.S. complaint. The prosecutor drew up papers, but apparently never filed formal charges.

            Concannon feels that the filing of specious claims against Aristide is a tactic used by his political opponents and that the current probe may be part of this strategy.

            “It is important for citizens to be able to use the justice system to force current and former government officials to respect the law,” Concannon said. “But these cases are simply not serious. I have not seen the complaints, so cannot know for sure, but it appears that they are both factually and legally deficient on their face, and that the prosecutor should not have pursued them. The prosecutor’s refusal to produce the complaints leads me to believe that he knows they are deficient. It is now easy enough for him to pass the file on to the ‘juge d’instruction’ (investigating judge) and wash his hands, saying ‘justice is taking its course.’ That will allow Aristide’s opponents many months of saying he was charged with stealing money and abusing boys. The investigating process is secret, so there will be no way for Aristide’s lawyers to cross examine the witnesses against him, or otherwise disprove the case. He will spend many months fighting charges that are, apparently, completely baseless, and the investigating judge will invest scarce public resources investigating obviously empty charges. That is not justice. Justice is a prosecutor doing his job by declining to pursue a complaint that has no basis.”

Brian Concannon of the IJDH says that it is possible that Aristide will have to “spend many months fighting charges that are, apparently, completely baseless, and the investigating judge will invest scarce public resources investigating obviously empty charges.”

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