CHAPTER XII
CONCLUSIONS AND RECOMMENDATIONS
445. The Commission values the importance that the Government and civil society in the Dominican Republic attribute to the full observance of human rights. Several issues of great relevance to human rights--judicial reform, for example--are on the country's agenda and are the subject of worthy initiatives on the part of the Government and civil society.
446. The Commission is appreciative of the political will and the spirit of modernization with which the Government of President Fernández Reyna has contributed to creating new opportunities and initiatives for the promotion and protection of human rights. Nonetheless, the situation of the Judiciary continues to be critical, including the excessive delays in judicial proceedings.
447. During its on-site visit the Commission was able to observe various initiatives aimed at modernizing the Police and their procedures, including: the suspension of roundups the establishment of the right of detainees to place phone calls, the suspension of the procedure of public showing of detainees, and a directive to respect the 48-hour time limit for bringing detainees before the judicial authorities. In addition, the Commission was informed of the measures aimed at educating judicial staff in respect for human rights, such as the use of investigative techniques compatible with human rights.
448. The Commission has found that major construction works are under way in the Dominican prison system, including the construction of a new prison and the remodelling of La Victoria prison, the largest in the country. Plans are also in place to refurbish other prisons. At the same time, prisoners in the Dominican Republic live in extremely difficult conditions.
449. Because of the judicial delays, the vast majority of Dominican prisoners--70% according to the most recent statistics of the General Bureau of Prisons, are being held in preventive detention, and have not been convicted. The Commission notes that the Dominican authorities are aware of this problem and that they are making efforts to improve this serious violation of human rights.
450. The Commission appreciates the major statutory reforms being introduced with respect to the status of women, and values the advances of the Office for the Promotion of Women, in particular the recently-adopted Law 24-97, on women's rights, which reflects a positive political intent to advance on this issue.
451. The Commission is fully aware that numerous problems that affect the full observance of human rights in the Dominican Republic are not the result of a state policy aimed at violating human rights. As in the case of several countries, the authorities face, in varying degrees, problems that are often structural, cultural standards inherited from authoritarian experiences, anachronistic institutions, and insufficient resources.
452. The Commission also recognizes the intent of the Dominican state to modernize and improve the judicial administration through the designation of a Commissioner for Reform and Modernization of the Justice System, who has the mission of negotiating, coordinating, and giving impetus to efforts of all sectors of the state and civil society to facilitate the process of modernizing the justice system.
453. The Commissioner for Reform and Modernization of the Justice System, among other things, raised the issue of reform of the prison infrastructure, and has specifically proposed the creation of a Prison School to train the security, administrative, and executive personnel of the prisons. This idea is very important, as the prisons have always been managed by the National Police, which has facilitated cases such as the desacatados, due to the resistance of the prison authorities to enforce judgments.
454. As part of the reform and modernization of the justice system, the Executive has designated specific committees for the reform of the Civil Code, Code of Civil Procedure, Criminal Code, and Code of Criminal Procedure. With this review process, the Government is trying to "bring the legislation into line with the new times, so as to contribute to strengthening the rule of law and democratic institutions."
455. The Commission values the efforts of the Dominican state in its support for legislative changes aimed at guaranteeing protection for the fundamental rights of its nationals as listed above. Protecting human rights, however, requires the full application of the legal standards, ensuring their realization in practice. In the process of fully implementing such standards, the role of the judiciary and the police is fundamental, as is the existence of a civil society that can press claims for the full exercise of the rights and participate in their consolidation and expansion.
456. The Commission invites the Dominican state to ratify the Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights, and the Inter-American Convention on the Forced Disappearance of Persons. Mindful of the abolition of the death penalty in the Constitution of the Dominican Republic, the Commission also recommends ratification of the Protocol to the American Convention on Human Rights to Abolish the Death Penalty.
457. Finally, the Commission is pleased to note the recent decision of the Dominican state to accept the jurisdiction of the Inter-American Court of Human Rights pursuant to Article 62 of the American Convention, for the purpose of ensuring more adequate protection of human rights.
458. Pursuant to the functions attributed to it by the Charter of the OAS, the American Convention on Human Rights, and all other applicable international legal instruments, the Commission expresses its desire to cooperate with the Dominican authorities, acting within its competence, to strengthen the mechanisms for the promotion and defense of human rights, and to advance towards their full implementation.
459. The Commission has analyzed the information received before, during, and after its visit to the Dominican Republic. In addition, it has taken into account the observations presented by the Government of the Dominican Republic on September 10 and 21, 1999, on the Draft Report prepared by the IACHR, which had been sent to the Government on June 28, 1999. Therein, the Government values the objectivity of the report and indicates that it is "consistent with the truth, sets forth a series of shortcomings with respect to the prisons and the situation of prisoners, which are problems acknowledged by the Dominican authorities"; and it recognizes "the deficient training and scant professionalization of the investigative bodies, a situation which is presently a matter of national debate."
460. In its observations, the Government notes that after the on-site visit of the IACHR, some of the Commission’s recommendations have been taken up, and certain advances have been observed. For example, the Government points to practices favorable to human rights, such as the opening of schools in some prisons, improved conditions for female prisoners, the lack of serious abuses by the guards, separation of juveniles from adults, free access for human rights monitors to the prisons, pardons for prisoners, reduction of the population held in preventive detention, reconstruction of the prisons at San Pedro de Macorís and San Francisco de Macorís, and the prospects for creating a prison police corps.
461. Without prejudice to the value of the plans announced by the Government, and the recently-adopted measures noted above, the Commission, in light of this report, makes the following conclusions and recommendations:
Administration of Justice
462. The Commission recognizes and values the efforts of the Dominican state to reform the judicial apparatus, so that its citizens may enjoy adequate protection for their fundamental rights. While the Commission has taken note that some changes have taken place in the judicial system of the Dominican Republic, it hopes that these will be extended to all branches of the judiciary.
463. The Commission recommends that the state continue taking measures to strengthen the impartiality, independence, and autonomy of the Judicial branch, endowing it with the resources it needs to guarantee timely and speedy justice.
464. The Commission is pleased to note that after a major national debate on the Supreme Court of Justice, the National Council on the Judiciary elected new members for the Supreme Court. This offers greater security for the administration of justice in the Dominican Republic. The Commission takes note of these changes and recommends that the judicial career service be strengthened in order to give judges job stability.
465. The Commission expresses its concern over the large number of persons being held in preventive detention who are still in the Dominican prisons. Even though the Government announced advances in the process of judging these persons, the number of persons whose rights to liberty and due process are restricted continues to be a source of concern, due to the failure of the courts handling their cases to act expeditiously.
466. The Commission recommends that the state quickly adopt measures to correct the chronic delays that characterize the administration of justice. In this regard, the state should pay special attention to the full application of Article 8 of the Dominican Constitution, pursuant to which detainees must be brought before the competent authority within 48 hours of their arrest, so as to make effective the judicial guarantees of judicial protection contained in Articles 8 and 25 of the American Convention.
467. The Commission acknowledges, as a first and modest positive step, the fact that the state has begun to release prisoners held for a term longer than the applicable sentence had they been tried and convicted. Nonetheless, this measure does not make reparation for the harm suffered by the persons who have been illegally and arbitrarily detained in this manner, nor does it recognize that detention without trial violates important rights such as the presumption of innocence. The Commission urges the state to put an end to the practice of preventive detention.
468. The Commission expresses its concern over the lack of legal assistance for detainees in the initial stage of the investigative phase. The Commission urges the state to institute measures to give priority to the right to legal advisory services by providing the assistance of public defenders, and to establish provisions that guarantee the detainees protection for due process and the right to liberty.
Right to life
469. The Commission notes its concern over the complaints regarding extrajudicial executions, and that for the most part they appear to be related to abuses committed by agents of the National Police, the National Directorate for Drug Control, and the Armed Forces, who overstep the bounds of their authority and abuse their power, using excessive force in actions that end with the death of the victims.
470. The Commission urges the Dominican state to adopt urgent measures to carry out an exhaustive investigation into these violations of the right to life, so that those who turn out to be responsible may be judged and punished by the regular justice system. The Commission reiterates that the state is responsible for violations of human rights whether or not they are perpetrated by state agents when they are not adequately investigated, nor their perpetrators punished nor full reparation made for their consequences.
471. The Commission recommends to the Dominican state that it adopt the measures needed to guarantee the preventive suspension of the security agents involved in alleged violations of the right to life, while the complaints lodged are investigated.
472. In addition, the Commission recommends that the Dominican state create a program aimed at training the police and military agents so that, in the context of their functions and obligations, they may fully respect human rights and be adequately informed of the criminal liability that arises from acting outside the law.
Right to humane treatment
473. The Commission states its concern over the allegations of torture and inhumane treatment in the Dominican Republic. Most of these are related to abuses committed by agents of the National Police, the National Directorate for Drug Control, and the Armed Forces, who overstep the bounds of their authority and abuse their power, using excessive force in actions that constitute an assault on the physical, mental, and moral integrity of the victims.
474. The Commission recommends that the Dominican authorities adopt urgent measures to carry out an exhaustive investigation into the acts that violate the right to physical integrity committed by state agents, so that they may be tried and punished by the regular justice system. The Commission notes that no violation of human rights perpetrated by state agents should remain in impunity, and that the failure to investigate, make reparations, and punish those responsible gives rise to the international responsibility of the state.
475. The Commission recommends to the Dominican state that it adopt the necessary measures to guarantee the preventive suspension of the security agents involved in the alleged violations of the right to humane treatment, while the allegations presented are investigated.
476. In addition, the Commission recommends to the Dominican state that it create a program, endowed with the necessary resources, to train the police and military agents so that they come to respect human rights fully within their functions and obligations, and are given careful instruction as regards the criminal liability that attaches to acting outside the law.
Right to personal liberty
477. The Commission states its serious concern for the grave problem of preventive detention in the Dominican Republic, where at present 70% of the prison population has not even been put on trial, let alone been given any sentence. The high rate of prisoners in preventive detention is indicative of the frequent violations of the right to liberty and due process enshrined in Articles 7 and 8 of the American Convention on Human Rights.
478. Preventive detention is an absolutely exceptional measure in view of the pre-eminent right to personal liberty and the risk posed by preventive detention, as regards the right to the presumption of innocence and the guarantees of due process of law, including the right to defense.254 Only on an exceptional basis can it be justified to prevent the accused from fleeing justice, and in the absence of alternative measures. Another justification invoked, to avoid interfering in judicial investigations, has precise and strict requirements and conditions for preventing abuses and violations of the rights of individuals. It is absolutely unacceptable for preventive detention to become, de facto, the usual form of operation of the administration of justice, without any due process, judge, or verdict.
479. The judicial guarantees that should be observed in the context of preventive detention are non-derogable obligations of states parties to the American Convention. The Commission considers that the performance of such obligations should be more rigorous and strict as the duration of preventive detention extends. In other words, the seriousness of the failure to observe judicial guarantees by the state increases with the time a given defendant is subjected to this restriction of liberty.255
480. The Commission recommends that the state adopt measures aimed at guaranteeing that preventive detention be applied as an exceptional measure within the bounds of the law. When it is not justified, the state should immediately release the detainee.
481. The Commission urges the authorities to take the necessary measures to guarantee that persons held in preventive detention can be brought before a judge, or to release them while the judicial proceeding continues.
482. Despite the commitment of the Dominican Government to take measures aimed at educating its personnel in respect for human rights, including the use of investigative techniques compatible with such rights, the Commission has continued to receive allegations regarding the practice of Police and DNCD agents of arbitrarily detaining all those who seem suspicious of some offense, and of indiscriminately holding them in prison until the Police determine who deserves to be released.
483. The Commission recommends that the state adopt measures so that, in accordance with the law, arrests are authorized only upon issuance of a prior judicial order, or in the case of flagrante delicto. Massive and indiscriminate methods, such as the roundups, should become a thing of the past.
484. Intervening to maintain public order in the case of protest demonstrations or disturbances should be done without recurring to force, unless absolutely necessary. The adequacy of training and equipment, as well as the procedures for handling such situations, should be constantly scrutinized.
485. The Commission recommends that the Dominican state adopt measures aimed at ensuring adequate compliance with the laws in force on detentions, their conditions, and their duration. In this and other areas of human rights, training of the police and the existence of adequate resources is essential, as is investigating and punishing those who violate the right to personal liberty.
486. The Commission urges the Dominican state to carry out an exhaustive investigation into the violations of the right to liberty by state agents, and to bring them before the regular justice system so they may be duly punished.
Freedom of thought and expression
487. During the press conference that the Commission gave on the conclusion of its on-site visit, in June 1997, it indicated that the media revealed the existence of a lively debate, and were fully free to exchange ideas on the consolidation, expansion, and strengthening of human rights institutions and provisions.
488. In effect, the Commission has observed that freedom of expression and thought are respected, in general, in the Dominican Republic.
489. Access to information is an essential requirement for individuals to be able to learn of and respond to actions taken in the public and private sectors. Therefore, the Commission recommends that the Dominican state adopt measures that make possible a broad exchange of public information, including the state offices forwarding information to the communications media on issues that affect the population.
Prisons
490. The Commission values and supports the process of modernization of the Dominican prisons; nonetheless, it reiterates its concern over the extremely difficult conditions Dominican prisoners continue to face, including insufficient food, scarcity of drinking water and beds, inadequate sanitary facilities, overcrowding, insufficient medical care, and lack of rehabilitation, education, and work programs.
491. The Commission observes that the widespread practice of preventive detention constitutes a flagrant violation of the American Convention, with respect to the presumption of innocence and the due process provisions, and aggravates the overcrowding of Dominican prisons. The Commission recommends that the authorities adopt measures to correct the chronic delays that persist in the administration of justice, which should include that all detainees who have not been tried within a reasonable time shall be released without prejudice to the continuation of their trial.
492. The Commission recommends to the Dominican state that it adopt the necessary measures to guarantee that prisoners are treated with the dignity inherent to them as human beings. The physical conditions of the prisons should guarantee appropriate food and medical care. Corporal punishment, solitary confinement in dark cells, and violence against prisoners should be eliminated.
493. The Commission recommends taking the measures needed to guarantee that persons accused but not tried be separated from convicts. In addition, the practice of confining minors with adults should be halted immediately.
494. The Commission urges the Dominican authorities to adopt special measures in the case of vaginal inspections of women who visit their family members; in particular, such inspections should be allowed only when authorized by judicial order and performed exclusively by health professionals.
495. The Commission wishes to highlight the importance of creating a Prison School to train a body of civil service personnel to work in the prisons and to strengthen the civilian administration of the prisons. It is similarly important to establish a program for rehabilitation and education in the country's prisons.
496. The Commission is pleased to note the creation of the institution of the Ayudante de Fiscal (public ministry agent), established in several of the country's prisons and police stations with the greatest volume of activity in Santo Domingo, which will provide counsel during the first stage of detention, to ensure that the rights of detainees are respected. The Commission hopes to see this institution expanded to all detention centers nationwide.
Migrant workers
497. The Commission observes that some 500,000 undocumented Haitian workers reside in the Dominican Republic. In several cases these persons have lived in the Dominican Republic for 20 to 40 years, and many were born there. Most of them confront permanent illegality, which is passed on to their children, who cannot obtain Dominican nationality, because according to the restrictive interpretation by the Dominican authorities of Article 11 of the Constitution, they are the children of "foreigners in transit." It is not possible to consider persons who have resided for several years in a country in which they have developed innumerable contacts of all types to be in transit. Consequently, numerous children of Haitian origin are denied fundamental rights, such as the right to nationality of the country of birth, access to health care, and access to education.
498. The Commission urges the Dominican state to adopt measures aimed at improving and regularizing the situation of undocumented Haitian workers by distributing work permits and residency cards; and to legalize the situation of their children, in cases that proceed pursuant to the principle of jus soli, in keeping with Article 11 of the Constitution.
499. The Commission reiterates its concern for the precarious and unhealthy conditions in which Haitian workers and their families live, and recommends to the state that it adopt measures aimed at guaranteeing the economic, social, and cultural rights of those workers, with no discrimination whatsoever. In particular, the Commission points to the need to improve living conditions in the bateyes and that they be provided basic supplies such as drinking water, electricity, medical services, and educational programs.
500. The Commission also expresses its concern over the massive expulsions of Haitian workers. Collective expulsions are a flagrant violation of international law, an shocks the conscience of humankind. Individual expulsions should be carried out in accordance with procedures that prevent errors and abuses.
Women
501. The Commission was informed of the current policy of the Government aimed at fostering the development of women; the Office for Women's Promotion has been working to strengthen its ties with the other institutions dedicated to working on the women's question, receiving advisory services and support from international organizations. In this context, programs have been developed on education, health, and violence against women, for the purpose of informing women of their rights in society and how to uphold them. Nonetheless, it is necessary for that Office to receive strong support from the Government so that its programs are widely known and implemented, so as to truly contribute to the strengthening and protection of women's rights in the Dominican Republic.
502. The Commission also takes note of the measures adopted to improve the situation of women, especially Law 24/97, against domestic violence, and those that allow women to own property and to benefit from the land distribution under the agrarian reform. Nonetheless, despite these legislative measures, the Commission expresses its concern because in practice women workers who are victims of discrimination in employment, arbitrary dismissals, and unequal pay as between men and women, continue to lack protection.
503. The Commission points to the need for the state to strictly monitor the working conditions and work relations of women employed in the free-trade zones.
504. The Commission urges the Government of the Dominican Republic to adopt the necessary measures to protect women so that they not fall victim to the violence associated with prostitution and the illegal trafficking of women.
505. The Commission encourages the Government to continue applying its policy aimed at attaining full equality of men and women in the different sectors of social life.
Minors
506. The Commission expresses its most profound concern over the situation of minors in the Dominican Republic, in particular over the exploitation to which they are victim, including child labor and the prostitution of minors. The number of street children continues to climb, while attendance in the classroom is on the decline.
507. The Commission celebrates the adoption of the Code of the Minor, which seeks to adopt appropriate legislation on minors in the Dominican Republic and establishes the creation of special juvenile courts. Nonetheless, despite the positive measures contained in this legal instrument, the Commission considers that its provisions are not fully applied in practice.
508. The Commission recommends to the Dominican state that it adopt programs to ensure strict surveillance of the situation of minors, especially those who have been victims of domestic violence.
509. The Commission urges the Government of the Dominican Republic to adopt measures aimed at protecting minors, to ensure they not fall victim to the violence associated with prostitution and the illegal trafficking of minors.
510. In addition, the Commission recommends greater oversight and supervision of the detention centers. Such measures will make it possible, first, to ensure that minors not be confined with adults, and are not victims of abusive treatment in general, and sexual abuse in particular; and second, so that minors in the centers of detention not become victims of the severe correctional measures that represent an attack on their physical integrity and their dignity.
Notes_______________________
254 Report 12/96, Case 11,245 (Argentina), in Annual Report of the IACHR 1995, doc. OEA/Ser.L/V/II.91, doc. 7 rev., of February 28, 1996, p. 48.