Haiti’s justice system remains dysfunctional and continues to pose significant obstacles to its democratic process, security, reconstruction and development. While some steps have begun with regard to the police, institutional reform in the sector has lagged, allowing further impunity and persistent criminal threats to citizen safety. Despite five years of pledges, the majority of Haitians still have limited access to justice, and mistrust of the formal judicial system is widespread. President Michel Martelly and parliament must work in a non-partisan manner to at last produce reform, including by modernising the 174 year-old criminal code and procedures and setting standards for judges, giving the judiciary adequate resources and creating efficient mechanisms that guarantee proper access to justice.

The impact of the 2010 earthquake on the infrastructure of an already overcrowded and inefficient system rendered a large number of courts inoperable. Those that have remained functional are understaffed and under-resourced. The lack of proper legal services for the poor majority and inefficient case management fuelled by financial, material and human resource constraints continue to generate extensive case backlog and overcrowded prisons. The number of detainees exceeds by a factor of six the prison capacity allowable by international standards. Lack of job security, supervision, adequate training and low salaries leave judges, prosecutors and other court personnel vulnerable to corruption. Executive and legislative interference, coupled with the sluggish pace of reform, has done little to convince the population that the political will exists for transformative change.

Haiti desperately needs a functioning justice system with effective and fair investigation, prosecution and conviction capabilities, particularly with respect to serious crimes. At present, serious criminals often go free, while petty offenders languish in prison. Revision of outdated key legislation to bring the archaic system into line with 21st century reality began in 2009. But proposed reforms of penal and criminal procedure codes need to be finalised by the executive, submitted to parliament and passed into law, all after wide consultation. Necessary separation of the executive and judiciary branches awaits the appointment of eight vetted members of the Superior Judiciary Council (Conseil supérieure du pouvoir judiciaire, CSPJ) and the launch of its work. Strengthening the Judicial Inspection Unit (JIU) and the Academy for the Training of Judges (Ecole de la magistrature, EMA) is essential to sustain reform efforts. Friction between prosecutors, judges and the Haitian National Police (HNP) must be ended to improve investigations and build a more cohesive security system.

Hopes for steady justice sector improvement were kindled in 2007 with the passage of three fundamental laws but were quashed by subsequent executive inaction. The new Martelly administration took initial actions to appoint some members of the Supreme Court (Cour de cassation). However, the president partially rejected a first slate of high court nominees submitted by the Senate, finally naming only the chief justice and one other justice. Early consultation will hopefully result in additional acceptable nominees so that the Court can be filled and the CSPJ made operational as the starting point for establishing and monitoring standards and safeguarding judicial independence. Moreover, to ensure a non-biased, transparent and efficient administration of the justice system, the Haitian authorities, with the support of their international partners, must also:

• strengthen the independence of the judiciary by providing the CSPJ with the human and material resources required for its immediate functioning;
   
• ensure a transparent and fearless justice system by giving special protection to those dealing with serious crimes, including prosecutors, judges and witnesses; improving work conditions and job security; and monitoring performance through the CSPJ and the JIU;
   
• complete drafting and passage of revised Penal and Criminal Procedure Codes and accompanying legislation, in accordance with international standards including on such matters as habeas corpus, and after consultation with key national sectors;
   
• ensure effective training of all justice actors in the modernised system, including by expanding and speeding up training for all judges by making the EMA fully functional and setting national standards for law school curriculums;
   
• improve access to justice and promote peaceful resolution of conflicts in rural communities and violence-prone slum communities by expanding mobile justice services and increasing legal aid;
   
• reduce lengthy pre-trial detention by improving case-management, applying fast-track procedures for minor offences and completing prison reform;
   
• improve co-ordination between the government and donors on reform projects, so as to develop Haitian leadership and ownership of a process with common goals and strategies; and
   
• increase services available to the population as well as public education on legal rights by drafting and passing statutory legislation to strengthen the office of the ombudsman and enhancing participation of civil society, including grassroots and community-based organisations, in that task.

Port-au-Prince/Bogotá/Brussels, 27 October 2011