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Alerte Belance v. Front Pour L'Avancement

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

ALERTE BELANCE,

Plaintiff,


v.

FRONT POUR L'AVANCEMENT ET
an unincorporated
association,

Defendant.
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Civil Case No.94 2619
COMPLAINT FOR ATTEMPTED
SUMMARY EXECUTION; TORTURE;
CRUEL, INHUMAN OR DEGRADING
TREATMENT; ARBITRARY
DETENTION; ASSAULT AND
BATTERY; KIDNAPPING;
INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS
JURY TRIAL DEMAND
   

Defendant. PRELIMINARY STATEMENT

1. This is an action for compensatory and punitive damages for gross violations of plaintiff Alerte Belance's internationally protected human rights. Defendant, the Front Pour L'Avancement et le Progres Haitien (Front for Advancement and Progress of Haiti) (hereinafter, FRAPH), kidnapped, tortured and attempted to murder plaintiff as part of its ongoing program to eliminate supporters of President Aristide, brutalize the pro-democracy movement in Haiti and intimidate the population.

2. FRAPH's brutal attack on plaintiff left her abandoned for dead, with her right arm severed, her tongue cut nearly in two, and deep gashes in her head, mouth and neck. After hiding from FRAPH's renewed threat to kill her, plaintiff and her family managed to escape from Haiti to the United States where they have received refugee statue.

3. FRAPH operates under the authority and as an instrument of, and in concert with, the illegal military dictatorship which has de facto control over Haiti. The kidnapping, attempted murder and torture of plaintiff was one of numerous similar attacks committed over the past eight months by members of FRAPH against real or perceived supporters of a return to democratic rule in Haiti.

4. FRAPH not only is functioning in Haiti but is doing business in New York. Representatives of FRAPH are conducting business on behalf of the organization in the Eastern District of New York. JURISDICTION AND VENUE

5. This Court has jurisdiction under 28 U.S.C. 1331 and 1350, and under the principles of pendent, supplementary and ancillary jurisdiction. 28 U.S.C. 1350 provides federal jurisdiction for "any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." Plaintiff's causes of action arise under the following laws, agreements, resolutions and treaties:

(a) Customary international law;

(b) United Nations Charter, 59 Stat. 1031, 3 Bevans 1153(1945);

(C) Universal Declaration of Human Rights, G.A. Res.217A(iii), U.N. Doc. A/810 (1948);

(d) International Covenant on Civil and Political Rights, G.A. Res. 2220A(xxi), 21 U.N. Doc., GAOR Supp. (No.16) at 52, U.N. Doc. A/6316 (1966);

(e) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, 39 U.N. Doc., GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984);

(f) Declaration on the Protection of All Persons From Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 3452, 30 U.N. Doc., GAOR Supp. (No. 34) at 91, U.N. Doc. A/10034 (1976);

(g) Charter of the Organization of American States, 2.U.S.T. 2394, T.I.A.S. 2361, 119 U.N.T.S. 3, as amended, Protocol of Buenos Aires of 1967, 21 U.S.T. 607, T.I.A.S. No. 6847, 721 U.N.T.S. 324 (1970);

(h) American Convention on Human Rights (Pact of San Jose, Costa Rica), O.A.S.T.S. No. 36, at 1, O.A.S. Off. Rec. OEA/Ser. L/V/II.23, doc. 21, rev. 2 (English 1978);

(I) American Declaration of the Rights and Duties of Man, O.A.S. Res. xxx, OAS Off. Rec. OEA/Ser. L/V/II 23, doe. 21, rev. 6 (English 1979);

(j) organization of American States Inter-American Convention to Prevent and Punish Torture, O.A.S.T.S. No. 67, O.A.S. Doc. OEA/Ser. p, AG/doc. 023/85 rev. 1, at 46-54 (English 1986), 25 International Legal Materials 519 (1986);

(k) Alien Tort Claims Act, 28 U.S.C. 1350;

(1) Common law of the United States of America;

(m) Statutes and common law of the State of New York, including but not limited to assault and battery, kidnapping, intentional infliction of emotional distress.

(n) Laws of Haiti, Including, but not limited to, the Haitian Constitution, the Haitian Penal Code, the Code of Criminal Procedure and the Civil Code.

6. The United States District Court for the Eastern District of New York is the proper venue of this action pursuant to 28 U.S.C. 1391.

PARTIES

7. Defendant Front Pour L'Avancement et Le Progres Haitian (FRAPH) is an unincorporated association formed in August or September 1993 to work with the Haitian military in blocking a return to democratic rule in Haiti. The organization is known in Haiti by its French acronym FRAPH (pronounced like "frappe," the French word for "hit"). FRAPH's members use physical violence and intimidation, including murder and rape, as part of their campaign to destroy or intimidate real and perceived opponents of military rule. Scores and possibly hundreds of politically inspired murders and assaults on Haitian civilians have been linked to members of FRAPH in the nine months since it was founded.

8. FRAPH is present and doing business in New York State and in this district. Its activities include frequent media interviews by FRAPH representatives, letters, faxes and paid advertisements. FRAPH communicates with nongovernmental organizations concerned with events in Haiti, with the U.S. media, and with U.S. government officials. In New York FRAPH organizes public demonstrations and other events. At least three people represent FRAPH in New York: Lyonel Sterling, General Coordinator (managing agent) of FRAPH's New York office: Rigaud Noel, Assistant General Coordinator of FRAPH's New York office: and Sylvestre Jean-Leger, a FRAPH political organizer. FRAPH carries on its work from offices in Brooklyn and Far Rockaway, New York and has post office boxes in both communities. The activities of FRAPH's New York office are carried out in support of FRAPH's activities in Haiti and as part of FRAPH's overall program.

9. Alerte Belance, a 32-year-old mother of three, is a citizen of Haiti now residing in Newark, New Jersey. On October 16, 1993, members of FRAPH kidnapped her from her home in Port-au-Prince, Haiti, drove her to a field outside the city known as the "killing grounds" and attacked her with a machete, causing grievous injuries to her right arm, neck, face and tongue. Belance survived; after hiding in Haiti to evade further attempts on her life by FRAPH members, she obtained refugee status in the United States.

STATEMENT OF FACTS

10. On December 16, 1990, Jean-Bertrand Aristide won an overwhelming victory in Haiti's presidential elections. He was inaugurated as President on February 7, 1991. Seven months later, on September 30, 1991, he was forced into exile by a military coup. President Aristide remains the lawful head of the Haitian government, recognized by the United States and the international community.

11. According to international human rights organizations, the Haitian military and paramilitary groups working under the military's direction and control have been responsible tor widespread and egregious human rights violations since the overthrow of President Aristide. These abuses have included summary executions, torture and disappearances, as well as the repression of virtually all opposition activities, including political parties, trade unions and other associations and the media. Several prominent opponents of military rule have been assassinated and many other have gone into hiding. Thousands of people reputed to be supporters of President Aristide have been shot, attacked with machetes, raped or otherwise terrorized. Homes and businesses have been destroyed.

12. In July 1993, President Aristide and the Haitian military signed an accord, the Governors Island Agreement, which called for President Aristide to return to Haiti at the end of October of that year. Human rights organizations noted an immediate increase in violent repression inside Haiti, with a sharp upswing in September and October, shortly before President Aristide was due to return.

13. In August or September 1993, defendant FRAPH was formed to assist the Haitian military in blocking the return of President Aristide and democratic rule to Haiti through a deliberate policy of violent intimidation of real or perceived opponents of military rule. FRAPH members carry membership cards issued and signed by the military. Under the direction and control of the Haitian military, members of FRAPH have executed, tortured, imprisoned and terrorized hundreds of civilians. No members of FRAPH have been arrested or prosecuted for their crimes.

14. Plaintiff Alerte Belance lived with her husband, an ironworker, and their three children in Port-au-Prince, Haiti. She sold rice in the market. Alerte Belance was an active supporter of Aristide during the election campaign; her husband was both a backer of Aristide and part of the Front Nationale pour le Changement et la Democracie (National Front for Change and Democracy, FNCD), a coalition of groups campaigning for Aristide's election. Her husband was repeatedly threatened by the military after the 1991 coup. For several months they left Port-au-Prince to escape the threats, then returned to their home in order to support their family. Members of FRAPH frequently harassed her husband, breaking up small gatherings of two or three people in which he was involved.

15. On October 16, 1993, at about 1:00 a.m., Belance and her husband were awakened by gunshots and knocking at their door. Both assumed that the intruders were hunting for her husband; he dressed hurriedly and left through a window at the rear of the house.

16. Four armed men broke through the door and entered the house, asking for Belance's husband. She insisted that he was not at home and that she did not know where to locate him. One of the men asked her what she was talking about, saying that her husband must be home now that his "father" (President Aristide) was returning. (Under the terms of the Governor's Island's Accord, Aristide was scheduled to return at the end of October). The men then grabbed her by the feet, pulled her out of the house and threw her into a car. Two of them were armed with machine guns. They told her that they were FRAPH, charged that her husband was in hiding, working for President Aristide's return and said that she was coming with them now.

17. The men drove Belance to a field outside of Port-au- Prince named Titayen and known as the "killing grounds" because the bodies of murdered opponents of the military are regularly dumped there by their killers. Belance was pulled out of the car. She stood on her feet. One of the kidnappers approached her with a machete and struck her across the face, slicing through her ear. With a second blow to her face, he cut her nose, mouth and gums. Belance threw herself to the ground and tried to protect her head with her arms; the assailant continued to strike her repeatedly with the machete. One blow sliced through her arm, almost severing it below the elbow. She heard another of her torturers ask, "Are you done yet, are you sure she's dead?" The attacker responded, "She must be dead." He pulled her body toward some bushes, and left. Belance lost consciousness.

18. Belance regained consciousness the next morning. She managed to drag herself to the edge of the street. A passing truck took her to the hospital, where a doctor predicted that she would not survive. Her arm, hanging only by the skin, was amputated below the elbow and the deep wounds to her neck, head, face and mouth were treated.

19. Plaintiff was forced to hide within the hospital for several days after members of FRAPH asked the hospital staff about her. She then slipped out of the hospital and went into hiding to escape from FRAPH's threats to kill her.

20. Three months after the attack, Belance managed to obtain refugee status in the United States and flew with her husband and children to Newark, New Jersey, where they now live. She continues to suffer chronic pain in her mouth and neck, as well as severe headaches. She is deaf in her right ear, and wears an artificial arm. She and her family, including her husband, suffer from deep psychological scars as a result of their ordeal.

21. The acts described herein were inflicted deliberately and intentionally by forces acting under color of law and official authority, by members of defendant organization FRAPH, who were acting pursuant to FRAPH's agreed-upon program and policy, to eliminate supporters of President Aristide, brutalize the prodemocracy movement in Haiti and intimidate the population.

22. This proceeding cannot be filed in Haiti, where rampant human rights abuses and attacks on the judiciary make legal proceedings of this nature impossible. Any attempt to pursue these claims in Haiti would not only be futile, but would endanger the lives of the individuals involved and their family members.

FIRST CLAIM FOR RELIEF

(Attempted Summary, Execution) 23. The allegations set forth in paragraphs 1 through 22 of this Complaint are realleged and incorporated by reference as if fully set forth herein.

24. The attempted summary execution described herein was an deliberate attempted killing, not authorized as lawful punishment in accordance with due process of law.

25. The acts described herein constitute attempted summary execution in violation of the Alien Tort Claims Act, customary international law, the common law of the United States, the statutes and common law of New York, the laws of Haiti and the international treaties, agreements, conventions and resolutions described in paragraph 5 herein.

26. The plaintiff was placed in great fear for her life and suffered severe physical abuse, agony and severe mental abuse. As a result of this attempted summary execution, plaintiff has been damaged in an amount to be proven at trial but which is in excess of $2,000,000.

27. Defendant's acts were deliberate, willful, intentional, wanton, malicious and oppressive and should be punished by an award of punitive damages in the amount of at least $5,000,000.

SECOND CLAIM FOR RELIEF

(Torture) 28. The allegations set forth in paragraphs 1 through 2 of this Complaint are realleged and incorporated by reference as if fully set forth herein.

29. The acts described herein placed plaintiff in great fear for her life and caused her to suffer severe physical and mental pain and suffering.

30. The acts described herein were inflicted deliberately and intentionally for purposes which included, among others, punishing the victim or intimidating the victim or third persons.

31. The acts described herein constitute torture in violation of the Alien Tort Claims Act, customary international law, the common law of the United States, the statutes and common law of New York, the laws of Haiti, and the international treaties, agreements, conventions and resolutions described in paragraph 5 herein.

32. As a result of the acts described herein, plaintiff has been damaged in an amount to be proven at trial but which is in excess of $2,000,000.

33. Defendant's acts were deliberate, willful, intentional, wanton, malicious and oppressive and should be punished by an award of punitive damages in the amount of at least 5,000,000.

THIRD CLAIM FOR RELIEF

(Cruel, Inhuman, or Degrading Treatment) 34. The allegations set forth in paragraphs 1 through 22 of this Complaint are realleged and incorporated by reference as if fully set forth herein.

35. The acts described herein had the intent and the effect of grossly humiliating and debasing the plaintiff, forcing her to act against her will and conscience, inciting fear and anguish, breaking physical or moral resistance, and forcing her to leave her home and country and flee into exile.

36. The acts described herein constitute cruel, inhuman or degrading treatment in violation of the Alien Tort Claim Act, customary international law, the common law of the United States, the statutes and common law of New York, the law. of Haiti, and the international treaties, agreements, conventions and resolutions described in paragraph 5 herein.

37. Plaintiff was placed in great fear for her life and forced to suffer severe physical and psychological abuse and agony. As a result of the cruel, inhuman or degrading treatment described above, plaintiff has been damaged in an amount to be proven at trial but which is in excess of $1,000,000.

38. Defendant's acts were deliberate, willful, intentional, wanton, malicious and oppressive and should be punished by an award of punitive damages in the amount of at least $2,000,000.

FOURTH CLAIM FOR RELIEF

(Arbitrary Detention) 39. The allegations set forth in paragraphs 1 through 22 of this Complaint are realleged and incorporated by reference as if fully set forth herein.

40. The detention of plaintiff described herein was illegal and unjust, carried out without a warrant, probable cause, articulable suspicion or notice of charges.

41. The acts described herein constitute arbitrary detention in violation of the Alien Tort Claims Act, customary international law, the common law of the United States, the statutes and common law of New York, the laws of Haiti, and the international treaties, agreements, conventions and resolutions described in paragraph 5 herein.

42. The plaintiff was placed in great fear for her life, was deprived of her freedom, separated from her family and forced to suffer severe physical and mental abuse. As a result of this arbitrary detention, plaintiff has been damaged in an amount to be proven at trial but which is in excess of $l,000,000.

43. Defendant's acts were deliberate, willful, intentional, wanton, malicious and oppressive and should be punished by an award of punitive damages in the amount of at least $2,000,000.

FIFTH CLAIM FOR RELIEF

(assault and Battery) 44. The allegations set forth in paragraphs 1 through 22 of this Complaint are realleged and incorporated by reference as if fully set forth herein.

45. The acts described herein constitute assault and battery, actionable under the laws of New York, the laws of the United States and the laws of Haiti.

46. As a result of these acts, plaintiff was placed in great fear for her life and suffered severe physical and psychological abuse and agony. As a result of the assault and battery described above, plaintiff has been damaged in an amount to be proven at trial but which is in excess of $2,000,000.

47. Defendant's acts were willful, intentional, wanton, malicious and oppressive and should be punished by an award of punitive damages in the amount of at least $5,000,000.

SIXTH CLAIM FOR RELIEF

(Kidnapping) 48. The allegation set forth in paragraph. 1 through 22 of this Complaint are realleged and incorporated by reference as if fully set forth herein.

49. The acts described herein constitute kidnapping under the laws of New York, the laws of the United States and the laws of Haiti.

50. As a result of these acts, plaintiff vas placed in great fear for her life, was illegally deprived of her freedom and suffered severe psychological abuse and agony. As a result of the kidnapping described above, plaintiff has been damaged in an amount to be proven at trial, but which is in excess of $1,000,000.

51. Defendant's acts were willful, intentional, wanton, malicious, oppressive and without the authority of law and should be punished by an award of punitive damages in the amount of at least $2,000,000.

SEVENTH CLAIM FOR RELIEF

(Intentional infliction of Emotional Distress) 52. The allegations set forth in paragraphs 1 through 22 of this Complaint are reallaged and incorporated by reference as if fully set forth herein.

53. The acts described herein constitute outrageous conduct in violation of all normal standards of decency and were without privilege or justification.

54. These outrageous acts were intentional and malicious and done for the purposes of causing plaintiff to suffer humiliation, mental anguish and extreme emotional and physical distress.

55. Defendant's outrageous conduct constitutes the intentional infliction of emotional distress and is actionable under the laws of New York, the United States and Haiti.

56. As a result of defendant's acts, plaintiff was placed in great fear for her life and was forced to suffer severe physical and psychological abuse and agony. As a result of the intentional infliction of emotional distress described above, plaintiff has been damaged in an amount to be proven at trial but which is in excess of $1,000,000.

57. Defendant's acts were willful, intentional, wanton, malicious and oppressive and should be punished by an award of punitive damages in the amount of at least $2,000,000.

PRAYER FOR RELIEF

WHEREFORE, plaintiff prays for judgment against the defendant as follows:

a) For compensatory damages according to proof;

b) For punitive and exemplary damages according to proof;

c) For reasonable attorneys' fees and costs of suit, according to proof: and

d) For such other and further relief as the court may deem just and proper.

A jury trial is demanded on all issues. Respectfully submitted,

MICHAEL RATNER
BETH STEPHENS
MAHLON PERKINS
MATTHEW CHACHERE

CENTER FOR CONSTITUTIONAL RIGHTS
666 Broadway, 7th floor
New York, NY 10012
(212) 614-6464
Local Rule 1: MR-3357

Of Counsel:
HAROLD HONGJU KOH
RONALD C. SLYE

Lowenstein International Human
Rights Law Clinic
127 Wall Street
New Haven, CT 06520
(203) 432-4932

PAUL HOFFMAN, ESQ.
LAW OFFICES OF PAUL HOFFMAN
100 Wilshire Boulevard, Suite 1000
Santa Monica, CA 90401
(310) 260-9585

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