OFFICE OF THE SPECIAL RAPPORTEUR FOR FREEDOM OF EXPRESSION CONCLUDES VISIT TO HAITI AND MAKES RECOMMENDATIONS
Washington, D.C., October 4, 2007 - At the conclusion of its working visit to Haiti the Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (IACHR) of the OAS emphasizes that the information received from distinct sectors affirms that there has been an improvement in the situation of freedom of expression in the country. However, the Office of the Special Rapporteur highlights the need to keep adopting measures for effective protection of the right to freedom of expression. Accordingly, the Office of the Special Rapporteur sets forth the following recommendations in order to continue to advance in this matter:
1) Ensure the effective and prompt investigation, prosecution, and punishment in cases of assassination of journalists, and determine whether the murder was related to journalistic activity.
(2) Adopt measures to ensure that domestic legislation is compatible with the American Convention on Human Rights regarding the right to freedom of expression, including the decriminalization of desacato, which is established in Articles 183, 184, and 185 of the Haitian Criminal Code. Equally, to modify articles 313, 315, 316, and 322, and related laws, with the aim of eliminating criminal sanctions for crimes against honor or reputation derived from the dissemination of information about issues of public interest;
(3) Create laws in the area of access to information to ensure that access to public information is guaranteed as a human right. Access to information is an essential tool to combat corruption, bring about real transparency in government, and improve the quality of democracy, which in Haiti, and in other countries as well , is marked by a culture of secrecy and by public bodies whose policies and practices for physically managing information are not designed to facilitate people’s access to it.
The current visit of the Office of the Special Rapporteur to Haiti was based on the context of the efforts made by the present government to improve the human rights situation in the country, which the Inter American Commission on Human Rights (IACHR) has highlighted. As such, the IACHR has noted an improvement in the situation of public security in Port-au-Prince, and has commended the present government for its efforts, with the support of the international community, to establish an agenda for the strengthening of the rule of law in Haiti and for the measures taken to improve the situation of administration of justice (See, for example, IACHR, Press Release No. 24/07 April 20, 2007).
During the visit to Haiti, that took place from September 26th through September 28th, 2007, the Special Rapporteur for Freedom of Expression, Ignacio J. Alvarez, Staff Attorney of the IACHR, Ismene Zarifis, Consultant Attorney, Candis Craig, and the Press & Communications Coordinator of the Rapporteur, Leticia Linn, met with representatives of the State, members of the media, civil society, and journalists.
At the level of State representatives, the delegation met with the Prime Minister Jacques-Edouard Alexis; Minister of Justice and Public Security René Magloire; President of the Senate Joseph Lambert and Senator Rudolph Boulos; President of the House of Representatives, Eric Jean- Jacques, and a delegation of congressmen; President of the Supreme Court, Georges Moise; Prosecutor at the Court of the First Instance, Port-au-Prince, Claudy Gassant; and Director of Legal Affairs at the Ministry of Foreign Affairs Fortuné Dorlean.
At the same time, the delegation met with members of the Commission to Support the Investigations of Assassinations of Journalists. The delegation also met with members of the Association of Independent Press of Haiti, the National Press Association of Haiti; non-governmental human rights organizations, namely the Commission for Justice and Peace (JILAP), National Human Rights Defense Network (RNDDH), Ecumenical Commission on Human Rights (CEDH), and also the Association of Journalists of Haiti (AJH), the Association of Haitian Female Journalists (AMIFEHJ), the Press Workers National Union (SNTPH), SOS Journalists and Radio PSG.
These meetings allowed the Office of the Special Rapporteur to complement and update its information on the situation of the right to freedom of expression in Haiti. The Office of the Special Rapporteur presents its specific observations in the annex to this press release.
The Office of the Special Rapporteur is grateful to the State organizations, the media, the civil society organizations and the journalists for the collaboration received by the delegation during its visit. The Office of the Special Rapporteur reiterates, as part of its mandate, its willingness to collaborate and provide technical support to initiatives in the area of freedom of expression in Haiti.
The Office of the Special Rapporteur for Freedom of Expression expresses its appreciation to the Government and the people of Haiti for their cooperation for the duration of its visit. Also, to the OAS Office in Haiti for its support in the organization of the visit, and to the non-governmental organizations, journalists, media, and civil society organizations for their participation and information provided to the Office of the Special Rapporteur during its visit. Finally, the Office of the Special Rapporteur would like to express its gratitude to the Swedish Agency for International Cooperation for its financial support to the activities of the Office of the Special Rapporteur and, specifically, for its support in financing this present visit.
For additional information about the Office of the Special Rapporteur: http://www.cidh.org/relatoria/
OBSERVATIONS AND RECOMMENDATIONS REGARDING THE SITUATION OF FREEDOM OF EXPRESSION IN HAITI
This document is an annex to press release 178/07 of October 4, 2007 of the Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (IACHR).
1. Investigations on Assassinations of Journalists
The Office of the Special Rapporteur on Freedom of Expression received information regarding several cases of assassination of journalists in Haiti from 2000 to 2007, including the following:
1.1) Jean Léopold Dominique: Director and owner of the radio station, Radio Haïti Inter. Dominique was assassinated on April 3, 2000 at the radio station where he worked.
1.2) Brignol Lindor: Director of the radio station, Echo 2000. Echo was beaten to death on December 3, 2001, presumably by a group of sympathizers of the then ruling party.
1.3) Ricardo Ortega: Correspondent for the Spanish television station Antena 3. Ortega was assassinated on March 7, 2004, following his report on a public protest to the sentencing of the ex-President Jean-Bertrand Aristide.
1.4) Abdias Jean: Correspondent of a radio station based in Miami. Abdias was found dead on January 14, 2005 after his coverage of a political operative in Port au Prince.
1.5) Jacques Roches: Editor of the Cultural section of Le Matin daily newspaper. Roches was kidnapped on July 10, 2005 and was found dead four days later in Port au Prince.
1.6) Jean-Remy Badiau: Independent photographer who was shot to death on January 19, 2007 in Port au Prince.
1.7) Alexi Joseph: Radio announcer. Joseph was assassinated in the city of Gonaives on May 16, 2007.
The Office of the Special Rapporteur urges the Haitian authorities to investigate these crimes promptly and effectively, to determine whether the murders were related to journalistic activity, and to duly punish those responsible, including direct perpetrators and the actual masterminds.
Murder is the most brutal way to limit freedom of expression. Pursuant to the American Convention on Human Rights, ratified by Haiti in 1977, State parties have the duty to prevent, investigate, and sanction any violation of the rights recognized therein. Principle 9 of the Declaration of Principles on Freedom of Expression of the IACHR states that "[t]he murder, kidnapping, intimidation of and/or threats to social communicators, as well as the material destruction of communications media violate the fundamental rights of individuals and strongly restrict freedom of expression."
The aspect of freedom of expression that the Office of the Special Rapporteur finds most worrisome in Haiti is the issue of impunity for cases of assassination of journalists and which the Office of the Special Rapporteur concluded characterises the majority of such crimes. The Office of the Special Rapporteur emphasizes that impunity encourages other acts of violence and intimidation against journalists and results in additional limitations to the freedom of expression, such as self-censorship by members of the media for fear of attacks and/or other acts of intimidation. During the visit, the majority of those interviewed confirmed the state of widespread impunity as it relates to crimes against journalists.
In this connection, the Office of the Special Rapporteur would like to recognize the creation of the Independent Commission to Support the Investigations related to the Assassination of Journalists (CIAPEAJ - Commission indépendante d'appui aux enquêtes relatives aux assassinats des journalistes). This Commission, appointed by the President of the Republic Rene Preval on August 13, 2007, is comprised of nine journalists and is charged with assisting the Haitian authorities in the investigation of the assassinations of various journalists that have occurred in Haiti since the year 2000.
The Office of the Special Rapporteur considers the creation of this Commission as a demonstration of the political will of the present government to propel advances in investigations and combat impunity of the assassination of journalists’ cases. The Office of the Special Rapporteur understands that the Commission will collaborate with the Haitian authorities who continue to be responsible for investigating the crimes and punishing those responsible.
Further, concerning the issue of impunity, the Office of the Special Rapporteur received information about two individuals who were tried and sentenced to life imprisonment on August 30, 2007 for the assassination of the journalist, Jacques Roches. The Office of the Special Rapporteur was informed that this was the first ever criminal sentence for the assassination of a journalist in Haiti’s history. The Office of the Special Rapporteur is thereby encouraged and hopes that the government will continue to take positive steps towards ensuring accountability for crimes committed within its territory and specifically those committed against journalists.
2. Legislation on desacato and defamation
Articles 183, 184 and 185 of the Criminal Code of Haiti establish the crime of desacato in the following terms:
Article 183. When one or more administrative or judicial judges or the commander of a commune, in the performance of their functions or in connection therewith, has received an insult, orally or in writing, that tends to tarnish their honor or wound their sensibilities, the person who has insulted them shall be punished by imprisonment of three months to one year.
Article 184. Insults of a judge or commander of a commune in the performance of their duties, proffered by gestures or threats, shall be punished by imprisonment of three months to one year.
Article 185. Insults of a ministerial officer or agent in charge of public order in the performance of his functions, or in connection therewith, proffered by gestures or threats, shall be punished by a fine of 16 to 40 gourdes.
The IACHR has indicated that the crime of desacato, which affords special protection to the honor and reputation of public officials, is incompatible with the right to freedom of expression as contemplated in Article 13 of the American Convention on Human Rights since, in a democratic society, public functionaries, instead of receiving special protection, should be exposed to a greater degree of criticism, which makes possible a broader public debate and democratic control with respect to their actions.
Principle 11 of the Declaration of Principles on Freedom of Expression, approved by the IACHR in 2000, indicates that: "Public officials are subject to greater scrutiny by society. Laws that Criminalize offensive expressions directed at public officials, generally known as ‘desacato laws,’ restrict freedom of expression and the right to information."
The Office of the Special Rapporteur for Freedom of Expression notes that in recent years, desacato laws have been repealed in nine countries of the region. This reveals a positive tendency that should be taken into account by the authorities of the states where such laws remain in effect. Based on these considerations, the Office of the Special Rapporteur urges Haiti to repeal Articles 183, 184, and 185 of its Criminal Code.
Additionally, the Office of the Special Rapporteur considers it equally important that Haiti modify Articles 313, 315, 316, and 322 of the Criminal Code relating to the crimes of defamation and slander, as well as the related regulations. According to the standards of the Inter-American human rights system, it is not proportionate in a democratic society that offenses against honor and reputation be sanctioned criminally in cases arising from the dissemination of information about issues of public interest. Criminal proceedings based on the dissemination of information of public interest are a disincentive to investigation and discussion of issues relevant to society and inhibit criticism, which negatively impacts democracy.
Principle 10 of the Declaration of Principles on Freedom of Expression states: "[…] The protection of a person’s reputation should only be guaranteed through civil sanctions in those cases in which the person offended is a public official, a public person or a private person who has voluntarily become involved in matters of public interest. In addition, in these cases, it must be proven that in disseminating the news, the social communicator had the specific intent to inflict harm, was fully aware that false news was disseminated, or acted with gross negligence in efforts to determine the truth or falsity of such news."
The Office of the Special Rapporteur observes that in Haiti, the majority of criminal proceedings against journalists do not end with the deprivation of journalists’ liberty, but they also intimidate both the journalist who is charged and other journalists, who may self-censor in order to avoid similar legal actions. The Office of the Special Rapporteur emphasizes that journalists provide a service that is fundamental to democracy, and they have the right to carry out their work without fear of being subject to prison sentences as a result of it.
Due to the preceding considerations, the Office of the Special Rapporteur urges Haiti to modify Articles 313, 315, 316, and 322 of the Criminal Code and the corresponding related laws with the aim of eliminating criminal sanctions with respect to offenses against honor or reputation resulting from the dissemination of information about matters of public interest. The protection of honor and reputation in such circumstances should be achieved through the right to rectification or reply and by means of proportionate civil sanctions, ordered in proceedings that take into account the parameters of Principle 10 of the Declaration of Principles on Freedom of Expression.
3. Access to information
The Office of the Special Rapporteur received information from public officials, civil society organizations, journalists, and communications media about refusal of public officials to provide information that is requested from them, and on the general culture of secrets in the country as it relates to information managed by the State. The Office of the Special Rapporteur considers that the approval of a law on this subject would contribute decisively to advancing towards a solution to this problem and to improving the quality of democracy in Haiti.
Access to information is a human right that forms a part of Article 13 of the American Convention on Human Rights, which guarantees the right to freedom of thought and expression. This was recognized by the Inter-American Court of Human Rights in its recent judgment in the case of Claude Reyes et al, and equally analyzed in the Special Study on the Right of Access to Information recently published by the Office of the Special Rapporteur for Freedom of Expression, which is available on its website.
Among the elements and guarantees that should be considered in the juridical norms of access to information the principle of maximum disclosure is found, which establishes a presumption that all information is accessible except when it has been subject to a system of restrictions. Individuals do not have to prove a direct interest in order to obtain information.
Furthermore, in accordance with the mentioned standards on the subject, the Haitian State should promote a culture of transparency in society and in the public sector for the exercise of the right to access to information. In any legislation related to this right, the obligation to provide information should be broad and encompass all public bodies as well as private entities that exercise public functions.
Furthermore, a system of restrictions on access to information should be based on the limitations allowed under the American Convention. For that reason, restrictions must be clearly established by law and their aims must be legitimate under the American Convention (rights or reputations of others; national security; public order; and public health or morals). For a denial of a request for information to be considered legitimate, the State should respond in writing to the party making the request and should specify the reasons and legal bases that justify the restriction.
Washington, D.C., October 4, 2007.
For more information on the Office of the Special Rapporteur: http://www.cidh.org/relatoria/