Responses to Information Requests - Immigration and Refugee Board of Canada Canada.ca Services Departments Français Immigration and Refugee Board of Canada Refugee Claims Refugee Appeals Admissibility Hearings Detention Reviews HomeImmigrationResearch Appeals Program Responses to Information Requests National Responses to Information Requests Documentation Packages Recent Research Responses to Information Requests (RIR) respond to focused Requests for Information that are submitted to the Research Directorate in the course of the Responses to refugee protection determination process. The database contains a seven-year Information Requests archive of English and French RIRs. Earlier RIRs may be found on the UNHCR's Refworld website. Please note that some RIRs have attachments which are not electronically accessible. To obtain a PDF copy of an RIR attachment, please email the Knowledge and Information Management Unit. 16 June 2016 HTI105534.FE Haiti: Procedures from the time a criminal complaint is filed until a judgment is rendered (2014-June 2016) Research Directorate, Immigration and Refugee Board of Canada, Ottawa Criminal complaint procedures are set out in the Code of Criminal Procedure (Code d’instruction criminelle). The code is attached to this Response. For information on the different types of complaints that can be filed with the police or judicial authorities in Haiti, see Response to Information Request HTI104873. 1. General Complaint Process In correspondence sent to the Research Directorate, a representative of the National Human Rights Defense Network (Réseau national de défense des droits humains, RNDDH), a human rights NGO in Haiti whose headquarters are in PortauPrince (RNDDH n.d.), stated the following: [translation] Our legislation sets out three (3) levels of offences that can be grounds for a complaint: petty offences, misdemeanours and felonies. The injured party or victim of a crime (violent or not) may file a complaint at a police station, the peace court or the Public Prosecutor’s Office (Parquet) (for a crime considered a serious offence) (ibid. 1 June 2016). The representative added that [translation] “[complaints] are handled the same way throughout the country (across the 18 jurisdictions)” (ibid.). 2. Investigations and Arrests http://www.irb-cisr.gc.ca/Eng/ResRec/RirRdi/Pages/index.aspx?doc=456583&pls=1[11/28/2016 12:21:58 PM] Responses to Information Requests - Immigration and Refugee Board of Canada In a document on its website, written for Americans who have been victims of crime in Haiti, the Embassy of the United States in Port-au-Prince states that the police need to obtain an arrest warrant from a judge before anyone can be arrested, unless a perpetrator is caught in the act of committing a crime or when there is a suspicion of a narcotics violation (US n.d.). In correspondence with the Research Directorate, a former investigative judge and academic director of the Haitian School of Magistrates (École de la magistrature d’Haïti) also stated the following: [translation] When someone is caught in the act of committing a crime, the case is sent to the [P]ublic Prosecutor’s Office, which conducts the preliminary investigation [and proceeds with] the arrest. The case is then forwarded to the investigative judge, the legal authority who decides on charges. The [P]ublic Prosecutor’s Office is very often assisted by the [Central Directorate of the Judicial Police (Direction centrale de la police judiciaire, DCPJ)] in serious criminal matters (kidnapping, drugs, etc.). (Former judge 30 May 2016) According to the US embassy, the DCPJ or the Haitian National Police (Police nationale d’Haïti, PNH) are responsible for investigating crimes (US n.d.). The RNDDH representative said that the DCPJ is an [translation] “active directorate of the National Police,” which is “directly ancillary to the judicial authorities” (1 June 2016). Similarly, the former judge noted that the DCPJ [translation] “is an investigative institution attached to the police that serves as an officer of justice to assist the Public Prosecutor’s Office in preliminary investigations” (30 May 2016). The US embassy notes that “many crime investigations never result in the arrest of a suspect,” but that there is no time limitation on a case until it is solved (US n.d.). The same source also says that “the [PNH] investigator in charge of the case will be the main contact for the victim to get information about the progress of the investigation” (ibid.). 3. Post-arrest Procedure The RNDDH representative stated that [translation] “once a case is referred to the police, they must, within 48 hours of a suspect’s arrest, bring the suspect before a judicial authority (peace court, Public Prosecutor’s Office or investigation office) depending on the circumstances of the arrest” (1 June 2016). Similarly, according to the US embassy, the law requires that “the police present a report to a judge within 48 hours of the arrest” and that “[w]ithin 48 hours after arrest, the accused must appear before a Justice of the Peace (Juge de Paix) or the prosecutor (Commissaire du Gouvernement), and will be preliminarily charged or released” (US n.d.). The website of the US embassy notes that formal charges must be laid within 48 hours after an arrest (ibid.). The same source also states that the police may deny a prisoner access to a lawyer during the first 48 hours after arrest to take care of administrative matters, but that after 48 hours, the accused must be allowed to see a lawyer and be informed of the charges (ibid.). The embassy’s website explains, [t]he Haitian judicial system has two courts of first action: the Peace Tribunal (Tribunal de Paix) and the First Action Tribunal (Tribunal de Premiere Instance). The Peace Tribunal is for relatively simple cases, both civil and criminal. The First Action Tribunal has several divisions: the Correctional Court (Tribunal Correctionel) hears cases relating to major crimes such as armed robbery; the Criminal Court (Tribunal Criminel) is devoted to more serious crimes such as drug offenses and murder; and the Civil Court (Tribunal Civil), the Commercial Court (Tribunal Commercial), the Labor Court (Tribunal de Travail) and the Property Court (Tribunal Terrain) hear respectively civil, commercial, labor and property disputes. Trial is normally by judge, although a trial by jury is possible in cases of very http://www.irb-cisr.gc.ca/Eng/ResRec/RirRdi/Pages/index.aspx?doc=456583&pls=1[11/28/2016 12:21:58 PM] Responses to Information Requests - Immigration and Refugee Board of Canada serious crimes such as murder. (ibid.) The same source also reports that a prosecutor generally decides which tribunal should hear a case (ibid.). 4. Minor Offences and Roles of Justices of the Peace According to the former investigative judge, [translation] “If the complaint involves a petty offence (a minor offence), the justice of the peace hears the case and imposes a sentence” (30 May 2016). The Code of Criminal Procedure provides that the justice of the peace will act as a police court to deal with petty offences (Haiti 1826, Art. 125). The US embassy also notes that “minor offenses can often be dealt with … without action from the Investigative Judge” and adds that “[f]or misdemeanours not submitted to the Investigative Judge, it is the Prosecutor who determines whether the case will go to trial” (US n.d.). An article in the Haitian daily Le Nouvelliste reports that the justice of the peace [translation] “is a fullfledged judge” in civil matters “as well as in criminal matters, but only with respect to petty offences” (Le Nouvelliste 10 Sept. 2015). The article adds that, when [translation] “seized with a misdemeanour or felony case, [the justice of the peace] becomes a judicial police officer, ancillary to the prosecutor” (ibid.). Similarly, the RNDDH representative specified that [translation] “the justice of the peace, a local magistrate, who is seized with a criminal case has no jurisdiction under the law to decide the case [and] must simply prepare the preliminary information and forward the matter to the Public Prosecutor’s Office” (1 June 2016). The US embassy, however, notes the following: Haitian judges sometimes improperly apply criminal procedures to civil cases. Consequently, arrests are often used in civil cases to compel a second party to appear before a judge or to pay debts or a settlement. (US n.d.) Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response. 5. Misdemeanours and Felonies The website of the US embassy explains that “[t]he Haitian legal system differentiates between correctional offenses or misdemeanors (with sentences ranging from 6 months to 3 years) and serious offenses [felonies] (with sentences ranging from 3 years on up)” (US n.d.). According to the former investigative judge, [translation] “[i]f the matter is a misdemeanour, the prosecutor sends the case to the correctional tribunal to be tried there” (Former judge 30 May 2016). Sources report that, with respect to felonies, the prosecutor sends the matter to the investigation office through an indictment (ibid.; RNDDH 1 June 2016). According to the US embassy, “[t]he Prosecutor (or ‘Commissaire du Gouvernement’) is responsible for filing charges against the accused,” and “[a]fter the accused has been formally charged, the Prosecutor forwards the case to an Investigative Judge (Juge D’Instruction)” (US n.d.). The same source also states, “in most cases involving serious crimes, the prosecutor will first send the file to an investigative judge (Juge d’Instruction) who will determine if the facts support referral to trial” and that “[f]or serious offenses (as well as more complex misdemeanors), the Investigative Judge has the final say over whether a case goes to trial” (ibid.). The former investigative judge explained that [translation] “the investigative judge does the investigative work and drafts the final recommendation.