IN THE NAME OF THE REPUBLIC
The Court of Appeal of Gonaives, First Section, in an extraordinary hearing and in its attributions relating to the violation of individual freedom, has rendered the following decision:
On the appeal filed by citizen PROSPER APRIL, resident of Port-au-Prince, identified with No: 003-229-434-5, having as attorneys RIGAUD DUPLAN, REYNOLD GEORGE and EMMANUEL D. CLERSAINT identified, licensed and respectively registered with no. 003-000-147-1, 1477971, B-2046024; 003-000-255-8, 403207, B-2221; 001-112-852-8, 04361722 and B-1743920, with residence at the law offices of Mr. Duplex JEAN BAPTISTE located in Gonaïves at …(sic) street, the appellant, on the one hand;
Against an ordinance (sic) of the deputy judge fulfilling the functions of Dean of the Civil Court of Saint-Marc, rendered on September nineteen two thousand two, and Mr Frénot CAJUSTE, Government Commissioner at the Civil Court of St-Marc, on the other hand;
Considering the original of the motion dated October 4 2002 for purposes of granting the right to sue and the aforementioned ordinance attached to this request;
Considering the power of attorney dated Tuesday eight (8) October 2002 given by citizen Prosper APRIL to his lawyers, for purposes of following through with the process of appeal;
Considering the declaration of appeal on Wednesday October nineteen two thousand two, made at the Clerk’s office of the Civil Court of St-Marc by Mr. Reynold GEORGE, a lawyer as designated above and qualified as stated above to represent Mr. Prosper AVRIL;
Considering the ordinance (sic) dated Thursday September nineteen two thousand two of judge Jean GERMAIN, dean of the Civil Court of St-Marc;
Considering the copy of subpoena dated October first two thousand two, of court messenger Anouald BEAUBRUN of the Supreme court of the Republic;
Considering the photocopy of a subpoena to appear in court, dated March 7, 2002 of investigating judge Henry Kesner NOEL;
Considering the certificate dated October 07, 2002 of the National Police ? Department of Penitentiary Administration, signed by René Jean Daniel, Regional Deputy-manager of West Dept. ? Head Commissioner ? Manager of the National Penitentiary;
Considering the final receipt of the Tax Office attesting the consignment of fine for the appeals;
Considering finally the Conclusions of the Office of the Prosecutor;
On Thursday September nineteen two thousand two, Judge JEAN GERMAIN, Dean of the Civil Court of St-Marc, who was presented with an habeas corpus request filed by citizen Prosper APRIL, currently held by the National Penitentiary Administration, rendered an ordinance against Mr. Avril, which read as follows:
“The Court, after deliberation according to the law and on the conclusions of the Office of the Prosecutor, hereby declares the complaint filed by Prosper APRIL to be inadmissible.”
It is against this ordinance that citizen Prosper AVRIL has filed an appeal for the following reasons:
Unjustified decision of the first judge, inexistence of an arrest warrant nor a committal order served against the appellant by investigative judge Kesner NOEL, and to ask the Court to grant his petition because it is just and supported in fact and in law, to say and declare that the arrest and the detention of citizen Prosper APRIL are completely illegal and arbitrary, that they violate the Constitution and the laws of the Republic in particular articles 24, 24-1, 24-2, 25, 26, 26-1, 26-2, etc. of the Constitution, consequently, to order his immediate release notwithstanding any generally allowed means of recourse.
On his part, the Government Commissioner, following the pleading of the appellant?s lawyers, concluded that the petition should be admitted, so that the Court say and declare that the first judge deserves the reproaches which are made to him; consequently, that the Court revokes the lower court?s order and reviews the case again, and does what the first judge should have done, that is to accept the complaint filed by Mr. Prosper AVRIL by declaring that his arrest and detention are illegal, order his immediate release, say and declare that the court?s final decision will be executed immediately, notwithstanding any grounds for appeal, notwithstanding appeal to the supreme court or defenses to execute, this with all generally legal consequences.
At this phase of the hearing, the Court ordered the deposit of all the documents along with the conclusions of the Government Commissioner and a recess of at least sixty minutes to deliberate.
I. – ON THE ADMISSIBILITY OF THE APPEAL
Considering that the quarreled decision was rendered on Thursday September nineteen two thousand two, and served to all parties on October first two thousand two;
Considering that the appeal declaration against that decision took place Wednesday October nine two thousand two, therefore within the legal time;
Considering that a final receipt of the General Tax Office dated 10-9-2002, attests that the fine envisaged by the law was consigned;
Thus considering, that all the formalities required by the law were religiously observed; that the appeal must be admitted.
II. ? UNMOTIVATED DECISION OF THE LOWER COURT JUDGE
Considering that the lower court judge stated one of his motives as follows: “because the subpoena to appear before a judge (served to the appellant), was delivered by a qualified officer of the court, in this case an investigating judge, and with regards to article 77 about the Criminal Investigation Code, one cannot consider that the arrest nor the detention of Prosper APRIL were illegal under the pretext that his arrest and his detention were ordered by an investigating judge, and not by an officer of the Prosecutor?s Office or one his deputies.”
Considering that if the subpoena dated March 7, 2002 signed by Judge HENRY KESNER NOEL bears the name of Prosper AVRIL among the accused, such is not the case for the arrest warrant or the committal order which the lower court judge seems to be referring to in his ordinance to justify the detention of Prosper AVRIL;
Considering that contrary to what the judge stated in his ordinance and with regards to the certificate dated October 07, 2002 obtained from the National Penitentiary, it is precisely under the orders of Mr. Frénot CAJUSTE, Assistant to the Government Commissioner of the city of Saint-Marc, therefore an officer of the Prosecutor?s Office; that citizen Prosper AVRIL is incarcerated from this date until today in the National Penitentiary;
Considering therefore that the reproaches thus made to the lower court Judge by Mr. Prosper AVRIL concerning the unmotivated nature of his decision are absolutely justified;
III. ? INEXISTENCE OF NEITHER AN ARREST WARRANT NOR A COMMITTAL ORDER
Considering that the appellant has claimed that there is no arrest warrant or a committal order against him, whereas he has been incarcerated since April 12, 2002, which represents more than six months;
Considering that there exists only a subpoena dated 7 March 2002 asking Prosper APRIL to appear before investigating Judge Henry Kesner NOEL; That only this judge or another magistrate of this same city, duly appointed to replace him, could have converted this subpoena into a committal order, and not an officer of the Prosecutor?s Office as Assistant Government Commissioner Frénot CAJUSTE did it;
Considering therefore that this last magistrate having no jurisdiction to make such a conversion, Mr. Prosper AVRIL is not wrong to complain about a long detention without the existence of a legal warrant against him; that consequently it is necessary to declare this detention to be illegal and arbitrary and to order his immediate release;
FOR THESE REASONS
The Court, on the conclusions of the Prosecutor, receives the petition for appeal dated Wednesday October nine two thousand two against the ordinance of Thursday September nineteen two thousand two; declared that he was wrongfully judged and his appeal is justified; consequently, revokes the ordinance of the lower court referred to above; declares also that this ordinance is not justified, that Mr. Prosper AVRIL is held also arbitrarily and illegally since April twelve two thousand two (April 12, 2002) at the National Penitentiary; Thus orders his immediate release, and that this decision be executed immediately, notwithstanding appeal to the supreme court or defenses to execute; delegates the President of the Court of Appeals of Port-with-Prince to commit an usher of this Court to for the distribution of this decision.
GIVEN BY US, Hugues Saint PIERRE, Moise COQ and Windelle COQ SAINT-LOUIS, respectively President and Judges at the extraordinary hearing held on Tuesday October Twenty-two two thousand two, year 199th of our National Independence, in the presence of Me Roland PAPLIUS, Government Commissioner Close the Court and with the assistance of citizen Roger BRACE, clerk of the court;
In witness whereof, the minutes of this judgment are signed by the President, the aforesaid Judges of the Court of Appeal of the city of Gonaïves and the Clerk.
Thus signed: Holy Hugues PIERRE, President, Brace COCK and Windelle HOLY COCK LOUIS, Judges.