The acrobatics of Mr. Danton LÉGER, one of the lawyers of Sogener, to block the fluid way of the Vorbe prison after two incomprehensible queries
The article will not be understood if it does not is not read in full (Me Guerby Blaise)
Thursday, November 21, 2019 ((rezonodwes.com)) – Although the Head of State promises to respect the sacrosanct principle of the separation of powers (Article 59 60.1 of the Constitution), the case opposing the Haitian State to the Sogener SA Company seems likely the start of the trial of the system announced by the President of the Republic.
If the political trial is at the initiative of President Mose, the judicial is confined in the strategic thinking of the lawyers of the antagonists. They must take advantage of this opportunity to initiate the need for the evolution of Haitian criminal justice. To do this, their feathers must avoid peeing in the violin.
As a reminder, following the complaint with civil party of 8 November 2019, the Government Commissioner invited the leaders of the Sogener Society and others to to appear at the public prosecutor's office to be auditioned in order to get an idea of this case. Also, the chief prosecutor addressed the Governor of the Bank of the Republic of Haiti (BRH) and the Minister of Public Works to obtain information documents to consider the follow-up to the complaint of the Haitian State.
Fearing for the freedom of their clients, the lawyers of the prosecution (leaders of Sogener) brought an action before the court of first instance of Port-au-Prince. In support of their requests, these lawyers make the combination of the illegality of the termination of the contract binding their client to the Haitian State and the violation of the individual freedom of the directors of the aforementioned company. In addition, their referral to the civil court.
Would these lawyers conceive the prison as the ideal place for their customers?
From the outset, it is incomprehensible that the civil court is the recipient of the referral two requests from these lawyers. For, not only do they ask the judge to set aside the invitations of the 14th of November from the public prosecutor's office, they believe that these contravene the principle of individual freedom by being content to be evasive about the texts specifically applicable in this area.
It is regrettable that they have not specified the national and conventional texts surrounding the person criminally prosecuted for judicial guarantees because of the disruptive nature of coercive measures.
If the invitations of 14 November of the public prosecutor's office can be annulled (II), the strategy of the prosecution's lawyers seems confused and uninspired. (I)
I- The confusion of the Sogener's strategy
It should be recalled that the Individual liberty is a concept applicable to criminal proceedings within the meaning of the provisions of Article 7 of the Inter-American Convention on Human Rights.
In the face of the risk of harm to which a person subject to criminal prosecution may be exposed, Constitution frames the coercive power of the judicial authorities. Thus, the drafters of the 1987 Constitution contemplated the introduction of Articles 24 (1) and 24 (2) to limit abuses in the deprivation of liberty of persons criminally prosecuted. In the same vein, the Constitution frames the restriction of freedom through Article 25. This constitutional framework sees its continuity (or vice versa) in the criminal reflection of the legislature, which limits the coercive power of the prosecutor's office in matters of flagrancy ( Articles 22, 36 and 39 of the Code of Criminal Investigation). As such, the legislator reconciles individual liberty with the penal response of the judicial authorities.
In the present case, the invitations of the public prosecutor's office do not constitute, in the light of the constitution, the law and the international convention of human rights. a measure of deprivation of liberty or restriction of liberty. For a mere invitation in the context of the assessment of the facts does not weigh on the guests' heads a plausible threat to their freedom in view of the lack of coercion of this invitation. Moreover, these invitations are no longer a measure of deprivation of liberty or a restriction of liberty since they are not a principal or a prohibition to leave the territory. Thus, these lawyers disregard articles 26.1 and 26.2 of the 1987 Constitution and at the same time confuse the penal aspect of these articles with the civil.
Consequently, the action of the lawyers of the Sogener, already confused of the fact to have seized the civil court, has no chance to succeed for misunderstanding and confusion. If these lawyers rely solely on these motions, it would not be unreasonable to ask whether they feel that the tranquility of their clients would be better in jail in the heat at Barracks Street in Port-au-Prince.
This confusion does not imply the legality of the invitations of November 14 of the parquet floor. This is what Mr. Danton LÉGER, one of Sogener's lawyers, is trying to prove on Radio Caraibes during the Jean Menard METELLUS Intersection broadcast on November 21, 2019.
Il-L Illegality of the invitations of the Government Commissioner
Indeed, after the disagreement of the author with Mr. Danton LÉGER on certain legal points of view that he supported on scoop FM, his remarks made on radio Caraibes today seem closer to the criminal victory in favor of Sogener against the prosecution. In this way, the Haitian State is relying on the law of 9 May 2014 on corruption offenses and other related offenses. Following this complaint, the Commissioner of the Government invited the leaders of the Sogener Company to appear at the public prosecutor's office on November 21, 2019 in order to assess the allegations against the directors of the SA Company.
In truth, this series of invitations would not contravene, in principle, Article 13 of the Code of Criminal Investigation with regard to the desirability of prosecution, which is available to the Government Commissioner. Curiously, the same commissioner solicits, on the same date, the Governor of the Bank of the Republic of Haiti (BRH) and the Minister of Public Works, in-depth information on this matter in order to inquire into this matter. As such, no one can say that this is outside the Commissioner's sphere of competence. For, he has every right to want to solidify his charge with regard to the burden of proof, which is incumbent upon him as authority for prosecution in the judicial process.
However, the prosecution has made it clear in the letters addressed to the Minister and the Governor the correlation between requests for information and judicial information, which is opened in the context of this case. Thus, this clarification of the opening of this judicial information calls for two guiding principles of the criminal trial.
It is true that the legislator offers to the prosecutor's office the possibility of collecting information following the opening of an investigation. The fact remains that the latter encompasses the individual freedom of the principle of the separation of functions and the principle of equity.
For the record, it is a doctrinal and legislative principle that the Public Prosecutor's Office essentially opposes to the party prosecuted in the case. part of the criminal trial, the civil party being limited to damages. It is in this sense that the combined reading of Articles 13, 37 and 48 of the Code of Criminal Procedure establishes the principle of separation of functions in the judicial process.
Thus, by virtue of the provisions of Articles 24 and 31 of the decree of 22 August 1995, the public prosecutor's office is an integral part of the criminal trial before a criminal court. As a result, the opening of judicial information automatically makes prosecution an essential part of the criminal trial. In this same logic, the legislator confines the coercive power of the Government Commissioner in the case of flagrante delicto, in accordance with Articles 22, 36 and 39 of the Code of Criminal Investigation.
This principle of the separation of functions finds its continuity in Article 51 of the Code of Criminal Procedure, in that it prohibits the prosecution from interfering with the search for judicial truth sought by the court. instruction. A judicial prohibition based on the principle of fairness in criminal proceedings
On this point, Brother LÉGER is right to criticize the jurisdictional competence of the government commissioner to hear his clients since he can not exercise his its function of prosecution and investigation as part of this judicial process. On this basis, Mr. LÉGER's reasoning is justified, and that indeed any other intervention by the Government Commissioner at this trial contravenes the principle of the secrecy of the investigation.
Therefore, any judicial act within the framework of this case now falls to the investigating judge under Articles 115 to 121 of the Code d'Instruction
But why do they expect this big fall to be caught on Caribbean this afternoon? In any case, Sogener's lawyers must be more cautious in the future so as not to be unconsciously the tormentors of their own clients.
Me. Guerby BLAISE
Lawyer and Researcher-Professor
in Criminal Law and Criminal Procedure
Graduate School of Paris Nanterre