Dominican Republic: Rights of the Accused

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RIGHTS OF THE ACCUSED

On 27th September, 2004, the new Procedural Penal Code of the Dominican Republic came into effect, profoundly transforming the Dominican Republic's penal procedural system.

The following basic principles were established:

a) Principle of prior hearing: no one is to be sentenced without a trial invested with all the required formalities.

b) Principle of a regular judge: the judicial body trying the case must pre-exist the punishable act, be invested with the required competency and be permanent in nature as prescribed by law.

c) Impartiality and independence: the judge must be unbiased and have no allegiance for whatever reason to either party.

d) Legality of the sanction, sentence and proceeding: no one is to be prosecuted, nor subject to a hearing, without the prior existence of a law which confers a legal basis for the intervention of the authorities.

e) Reasonable term: no one can be subjected to any legal proceedings for an indefinite period of time and the State has the obligation to establish clear and precise norms which guarantee this.

f) The principle of sole prosecution or non bis idem: no one can be tried twice for the same crime.

g) Guarantee of respect for human dignity: all evidence obtained through torture and other cruel, inhuman and degrading treatment cannot be validly admitted in court.

h) Equal protection of the law: all are equal before the law and any discrimination or unequal treatment is unlawful.

i) Equality of the parties in proceedings: equal treatment must be given to the victim or plaintiff, as well as to the accused or defendant.

j) The right not to provide evidence against oneself: the accused cannot be induced, through the use of deception or violence, to make a statement or produce evidence against his will.

k) Presumption of innocence: any person who is subject to criminal prosecution is presumed innocent until proven guilty in an oral, public trial and in the presence of both parties.

l) Statute of freedom: the state of freedom is the norm and deprivation of freedom the exception. The latter is intended as a temporary, precautionary measure, which must be for a reasonable period of time only. No one can be imprisoned or deprived of freedom without an order issued by an officer of the court with the legal capacity to do so. The accused generally attends court as a free person, but the court may exceptionally order his custody to avoid evasion or the occurrence of acts of violence.

m) Limits to criminal responsibility: no one can be held responsible for someone else’s actions.

n) Rights to a defence: no one can be convicted without having been legally summoned and tried in accordance with procedures established by law to ensure an impartial trial and the exercise of the right to a defence.

o) Precise filing of charges: the prosecuting authority has the procedural obligation to personalise, describe, detail and specify the the criminal offence of which the defendant is accused, clearly stating the particulars of the offence and the basis of the charges.

p) The right to appeal to a higher court: the accused has the right to appeal to a higher judge or court against the conviction and sentence passed against him.

q) Separation of roles: judicial officers must be remain entirely separate from the investigatory functions of the police and the role of the prosecutor.

r) Right to adjudication: every person has the right to have claims and charges against him decided before a court of law.

s) Ratio decidendi : the court must provide reasons for its decisions.

t) Legality of evidence: only evidence that has been legally obtained may be used in determining the guilt of the accused, and the nature of any sentence imposed.

u) Right to legal aid: the accused has the right to be assisted by a lawyer to help him with his defence.

Furthermore, the Dominican Republic is a member state of the Organization of American States (OAS) and of the United Nations (UN), and has human rights obligations at both the regional and universal levels (see: Dominican Republic Factsheet.

The 2015 CONSTITUTION OF THE DOMINICAN REPUBLIC

See: 2015 Constitution of the Dominican Republic

Title II: On fundamental rights, guarantees and duties . . . . . . . 21

Chapter I: Fundamental rights . . . . . . . . . . . .. . . . . . . . 21

Section I: Civil and political rights . . . . . . . . . . . . .. . . 21

Article 37: Right to life . . . . . . . . . . . . . . . . . . . . . .21

Article 38: Human dignity . . . . . . . . . . . . . . . . . . . .. . 21

Article 39: Right to equality . . . . . . . . . . . . . . . . . .. . 21

Article 40: Right to liberty and personal security . . . . . . . . . 22

Article 42: Right to personal integrity . . . . . . . . . . . . . . .23

Article 44: Right to privacy and to personal honor . . . . . . . . . 24

Article 51: Right of property . . . . . . . . . . . . . . . . . . . .26

FAILURE TO UPHOLD THE RIGHTS OF THE ACCUSED

Despite the above, according to Fair Trials International "Individuals arrested in the Dominican Republic may face lengthy periods of pre-trial detention in prison conditions falling far below international standards in a criminal justice system reported to be struggling with poor administration and corruption. Foreign nationals with little knowledge of the local language and the legal system are particularly vulnerable to breaches of their basic rights to a fair trial."

In fact, the judicial process in the Dominican Republic can last up to several years, which may result in lengthy pre-trial detainment in a Dominican prison where conditions are very basic.

In the case of Benito Tide Méndez et al. v. the Dominican Republic (see IACHR, Report No. 64/12, Case 12.271, Benito Tide Méndez et al, Dominican Republic, 29 March 2012) litigated in part by the non-governmental organisation Center for Justice and International Law (CEJIL), the Inter-American Commission on Human Rights held that the State violated the rights to: juridical personality, name, nationality, personal liberty, privacy, fair trial, judicial protection, equal protection before the law, freedom of movement and residence, rights of the family, rights of the child, and equality and non-discrimination, as set forth in the American Convention on Human Rights.

According to the World Justice Project, the Dominican Republic ranks 90 out of 113 countries for the rule of law, and 100 out of 113 for criminal justice. Thus, judicial and law enforcement standards are some of the poorest in the world.

JUDICIAL PROCESS

Much of the following is courtesy of the US embassy in the Dominican Republic

First Phase – Arrest and Detention:

Under Article 40 of the Constitution, a person may be arrested or detained only by a judge’s written order unless the person is caught in the act of committing a crime. At the time of arrest, the arresting authority must identify him or herself, and inform the person of his or her rights. Once detained, the person is entitled to contact a family member, an attorney, or other trusted person, who may request information about the location of the person arrested and the grounds for the arrest.

A person detained or arrested by the police authorities may be held without charges for up to 48 hours. During this 48-hour period, an assistant district attorney (prosecutor) and the police conduct an initial investigation of the case. Assistant district attorneys are present at most police stations and have the responsibility to lead the investigation.

Right to an Attorney: A detainee is typically questioned as part of the investigation by the authorities. According to Dominican law, a detainee is entitled to have an attorney present during any questioning, as well as at any of the hearings or trials. If the detainee cannot afford to have an attorney, the government will provide a public defender upon request. A detainee also has the right to remain silent.

Habeas Corpus: According to the Constitution of the Dominican Republic, any prisoner detained for more than 48 hours without being formally charged is entitled to request a hearing of habeas corpus. Habeas corpus is a physical release of an arrestee from prison while awaiting trial. The presiding judge at the hearing is empowered to order the prisoner’s release if he has been detained for more than 48 hours without being formally charged or there is insufficient proof of a crime to warrant further detention. The judge’s decision to release is subject to appeal by the district attorney. A defendant released on habeas corpus is required to remain in the country until the charges are finally resolved.

District Attorney’s office: It is the role of the Prosecutor to press charges based on the evidence. If the prosecutor declines to press charges, typically due to insufficient evidence, the detainee will be released. If the Prosecutor determines there is sufficient evidence to press charges, the case will proceed to the second phase in which an investigating judge will make a further evaluation of the charges.

Second Phase – Investigating Judge:

The district attorney sends the case to a coordinating judge, who will assign one of the “Jueces de Instrucción” (investigating judges) to conduct a preliminary investigation. The investigating judge will examine the preliminary evidence presented by the district attorney. Based on this evidence, the investigating judge then decides whether the detainee should remain under police custody pending further investigation. The judge has authority to order the detainee to remain in police custody for a period between three months and one year. Although the typical time frame for pre-trial detainment is three months, prosecutors may request additional time (up to one year total) to prepare their case. The rule is that the detained person be released unless he or she presents a flight risk. The burden is on the DA’s Office to justify taking coercive measures (medidas de coerción) against the accused, such as imprisonment, house arrest, mandatory reporting to the DA’s Office, passport confiscation, or bail requirements. Any restriction to a person’s liberty must be exceptional, proportional to the danger presented (Article 40.9 of the Constitution), and cannot exceed one year. The detainee can request a review of the investigating judge's decision.

If the investigating judge determines that there is insufficient evidence presented by the prosecutor, the judge may also order the release of the detainee.

Should the judge determine that there is sufficient evidence to detain an arrested individual pending trial, the judge will set a date for a preliminary hearing typically within three months to one year. A defendant may request bail at any time during this process. In reviewing a bail request, the judge has considerable discretion, but will consider the type of crime, the defendant’s criminal history, and the risk of flight by the defendant.

Third Phase – Preliminary Hearing:

At the preliminary hearing, a sole investigatory judge or panel of judges (there is no trial by jury), will hear evidence and, based on the gravity of the offence, make one of the following decisions:

1) “Auto de no ha lugar” – This judgment signifies that there exists no grave, sufficient and corroborating evidence of guilt against the detainee. Therefore the detainee will be ordered released and the case closed, unless the prosecutor appeals.

2) “Providencia Calificativa” – This judgment is similar to an indictment. With this judgment, the judge determines that grave, sufficient and corroborating evidence exists of culpability against the detainee. The detainee remains in custody, and the case is assigned to a First Instance Court.

Fourth Phase – First Instance Court:

A “Tribunal de Primera Instancia” (First Instance Court) is assigned the case and this court must set a date for “conocimiento de fondo del caso”, that is, to consider the case on its merits. The prisoner is not required to take an oath, but must provide a name and an address to the court stenographer. The interpreter must swear to the accuracy of any interpretation, and all witnesses testify under oath.

The trial generally proceeds in the following sequence:

1. The judge questions the prisoner to see if the testimony conforms to the statements in the documents. It is advisable for the defendant to respond in a forthright and respectful manner to all questions. The defendant has a right to remain silent.

2. The prosecuting attorney may direct questions to the prisoner. The defendant has a right to remain silent.

3. The defence may ask further questions, call witnesses, and present defense arguments.

4. The prosecuting attorney delivers a summation.

5. The trial is concluded and the defendant remains in custody pending rendering of the sentence.

The First Instance Court will render a verdict of guilt or innocence (not guilty). According to Dominican law, trials are public and defendants have the right to present contradictory evidence.

Although the new criminal procedures have expedited the process, the process before the First Instance Court could last up to several years. Numerous factors could delay the consideration of a case, including delays in obtaining witness testimony, delays by attorneys and complicated evidentiary or legal issues. During this time, a defendant will likely remain incarcerated.

Fifth Phase – Court of Appeals:

If the defendant is found guilty, the detainee has ten days to appeal the decision issued by the First Instance Court. A finding of guilt can be appealed before a “Corte de Apelación” (Court of Appeals) to overturn a guilty verdict. The district attorney can also appeal a decision. The district attorney usually appeals the First Instance Court decision when it favors the detainee. If the case is appealed, the prisoner is incarcerated until a hearing is set before a five-judge or three-judge Court of Appeal.

Sixth Phase – Supreme Court:

If either party believes that the law has been incorrectly applied in the lower courts, then the party may appeal to the Supreme Court. As in the U.S., the Supreme Court decides only whether the law has been correctly applied, and does not revisit the underlying facts of the case.

If the Supreme Court determines that the law has been correctly applied, the decision of the Court of Appeals (Fifth Phase) stands. If the Supreme Court determines that the law has been incorrectly applied, it sends the case to a different First Instance Court so the case can be heard from the beginning.

Payment of Fines: Fines can be paid at any time after the sentence is rendered and before the release of the prisoner. The defense attorney pays the fine in the “Sección de Multas” (Fines Section) in the Palace of Justice. At the end of the sentence, the defense attorney takes a copy of the receipt to the Fines Section where “the order of liberty” is typed. The “order” must be approved and signed by the district attorney (fiscal). The defense attorney presents the signed order of liberty to the jail where the prisoner is being held. The prisoner is then returned for final processing for release or deportation, during which authorities return confiscated items to the released person.

Those defendants that cannot pay the fine may request that it be waived. To obtain a waiver of the fine, the defendant must show that he or she is insolvent. The waiver request should be made before the court that last heard the case. Those who cannot pay the fine are required to remain in jail for one day per each peso of fine, up to maximum of two years. This is in addition to the sentence imposed by the court.

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