by Mr. Guerby Blaise
Monday, November 18, 2019 ((rezonodwes.com)) – On November 13, 2019, to the surprise of everyone, the Chairman of the Board of Directors of Sogener SA sent a letter letter to the Ministers of Public Works and the Economy and Finance in order to follow up the meeting of 22 October 2019 on the application of the clause of the contract linking it to the Haitian State. This clause is inserted in Article 23.1 of the contract, which states: “In case of dispute, both parties will try to find an amicable solution within thirty days of notification by either party. “(But an article in a code” disposes “).
In its letter, the contracting company explained that it had been waiting for the minutes of the meeting held on October 22nd as well as the report of the pilot commission for the reform of the energy sector. . These documents were to be sent to him by the representatives of his co-contractor. Faced with the silence of his co-contractor, Sogener requested a new meeting to consider a possibility of renegotiating the contract.
This letter seems to have aroused the joy of one of the Haitian state's lawyers at the point of affirmed on Mega FM that Sogener's application can not change the offenses committed by Sogener's executives, and that its client may be in favor of reviewing the determinants of the civil contested contract for the purpose to be reimbursed for the entire amount improperly collected by Sogener. Further, Mr. Newton SAINT-JUSTE considered that this letter illustrates the admission of Sogener for the offenses which are reproached in the complaint with constitution of civil party of the Haitian State.
In addition, the plea Mr. SAINT-JUSTE would have relevant effects on the assessment of the prosecutor, in the sense that it decided the next day, November 14, 2019, to invite the leaders of Sogener SA to audition them, he said , in the context of a judicial inquiry relating to this case
Could a request for contractual negotiation constitute a prior acknowledgment of guilt with respect to the setting in motion of the public action? What would be the legal significance of this negotiation on the existence of the unlawful conduct of the plaintiff?
As a reminder, the prior recognition of guilt, borrowed from the US judicial system (plea-guilty) is a procedural concept applicable in justice Criminal Code (art.495-7 to 495-16 Code of Criminal Procedure) after the commission of an offense. To do this, two cumulative conditions must be meetings: on the one hand, the agent must recognize the facts alleged against him, the public action must be set in motion by the prosecution, on the other hand. In addition, this procedure is applicable on the initiative of the public prosecutor, who is obliged to inform the victim. However, this recognition by the prosecuted person must be homologated by the judicial judge.
Although our repressive system does not know this procedural subterfuge to avoid a criminal trial, this comparative study could allow to make an analytical approach in the words of Mr. SAINT-JUSTE, which would likely have effects on the appreciation of the Commissioner of the Government. To tell the truth, it is not regrettable that the Haitian legislator, lazy as it is, does not establish this “petit-judgment” of the public prosecutor's office since this procedure contravenes the constitutional and universal principle of the prohibition of self-harm. to incriminate being the continuity of the principle of the presumption of innocence in criminal matters
I- A request for negotiation: a process on the survival of the contract
Indeed, the author recalled in an article concerning this same case that the binding force of the contract entails the performance of the contractual obligations to be borne by both parties, in accordance with the provisions of Articles 900 et seq. of the Civil Code. And any failure on the part of a party violates the respect of the expression of the agreement of the two wills. As a result, the Haitian State has the right to terminate the contract as of right if it considers that its co-contracting party has not performed its obligations. Thus, it is obliged to notify to Sogener its unilateral termination decision.
On the other hand, this right of unilateral termination does not intend to subordinate the execution of the agreement of wills to the exclusive dictatorship of the Haitian State. . So any challenge to this unilateral termination by the Sogener blows up the death of the contract by making it survive until a judicial decision reaching the authority that has become res judicata, commonly known as “authority of thing supremely judged.” 19659002] Although Sogener should have left this step amicably on the initiative of its defenders, it has the right to want to exhaust a condition precedent to contractual dispute in order to survive the contract. For this purpose, it does not admit to having committed any criminal offense, and its approach can not be interpreted in person guilty.
II- The request for negotiation: a process on the binding force of the contract
It was explained more the parties are interrelated in the context of the contractual obligations. Any non-performance outside of force majeure causes contractual liability in the form of damages and opens the door to breach of the contractual obligation.
In the present case, the State is presumably accusing Sogener of not having provided the amount of electrical energy billed. On this point, the fiery and brilliant lawyer of the Haitian State would have been undeniably right if the facts were held to be true. Moreover, it is necessary to draw the confrere's attention again that it is impossible to repress the offense of overcharging without proving the existence of the participation of the State by the filter of one of its representatives. Because article 5.8 of the law of May 9, 2014 relating to the corruption makes the representative of the State the EXCLUSIVE DECIDER of the commission of said offense, the contracting party being able to be actually accomplice or author material under the instigation of the
On the other hand, the Haitian State's objection to the amount of electricity supplied does not prevent Sogener from being able to sit around a discussion table with its co-contracting party in order to to detect together if indeed there would be an error in the quantity of electricity supplied
Assuming that a contradictory expert's report would have revealed that the generators evaluated would not have provided the quantity of electricities expected by the EDH to satisfy the population, the contract would have no more cause in the contractual sense vis-à-vis the State. In this case, the State could decide to break the contract for no reason. Therefore, Sogener's request for negotiation can not immediately be considered a prior acknowledgment of guilt, which could motivate the curiosity of the package to hear the leaders of that company. The Government Commissioner seems to have already seized the investigating court (see letter from the Government Commissioner addressed to the Central Bank Governors and Minister of Economy and Finance).
Roughly speaking, it is possible that Sogener intends to jointly determine with the Haitian State whether the unilateral termination of the contract was based on the absence of a contractual cause. Thus, there would be no recognition of criminal fault of this company.
If on the contrary, the discussion would lead to an amicable agreement between the parties and it would have revealed that the amounts charged by the Sogener did not obscure the actual accounting, it would be obvious that this negotiation would have a significant impact on the criminal aspect of the dispute. For, even if the prosecution prosecutes in the name of the general interest, the fraudulent contractual performance constitutes the cardinal basis and the precondition of the complaint of the Haitian State.
Consequently, any subsequent recognition of the State complaining of the non-existence of fraudulent practices in the context of contractual performance would affect the relevance of the continuity of the criminal prosecution (in this sense an analytical approach on Articles 53 and 54 of the Code of Criminal Investigation will be made by the
In the light of these analyzes, the reflection of the brilliant Mr. Newton SAINT-JUSTE concerning the preliminary recognition of Sogener SA's guilt or the latter's confession can not be held for real. And it would be wrong if the interest of the government commissioner to hear the individuals persecuted was motivated by the words of the Haitian lawyer held on radio Mega November 13, 2019.
In any case, this hearing escapes from now on to the prosecutor's office because of the judicial information that he himself revealed to be open in the context of this case. What a beautiful trial!
Me. Guerby BLAISE
Lawyer and Researcher-Professor
in Criminal Law and Criminal Procedure
Graduate School of Paris Nanterre
Kronmavie @ yahoo.fr