CHAPTER III
THE RIGHT TO JUDICIAL RECOURSE AND THE ADMINISTRATION OF JUSTICE IN THE DOMINICAN REPUBLIC
A. Background
90. This chapter analyzes the problems the Commission has identified in the administration of justice in the Dominican Republic and describes the policies that the Government has designed to address the situation. Finally, the Commission will evaluate the implementation and effectiveness of such measures.
91. During its on-site visit, the Commission received information, in general, on the critical situation of the administration of justice, finding a high percentage of lack of confidence in the population at large with respect to the independence and probity of the judicial system, as well as repeated complaints over the excessive delays in judicial proceedings.23
B. Main problems of the Dominican judicial system
a. Efficiency
92. The administration of justice in the Dominican Republic is inefficient insofar as it is not able to expeditiously and adequately resolve the cases that are brought before it. In 1996, the Supreme Court of Justice had 15,000 to 20,000 cases pending before it, yet only ruled on eight to ten cases monthly. This critical situation renders impossible the realization of justice, working to the grave detriment of the legitimacy that the Judicial branch should enjoy.
93. The situation of the lower courts is no better. In a study done by the Universidad Católica Madre y Maestra 10 years ago, it was determined that the courts of first instance ruled on only 17% of the correctional cases and 66% of the criminal cases, such that every two-and-a-half years the backlog of cases pending before the criminal courts doubled.24 According to all the information received by the Commission, the situation has only worsened since that study.
94. During its on-site visit, the Commission found, according to the most recent statistics of the General Bureau of Prisons, that 85% of Dominican prisoners were held in preventive detention and had not had any determination of their legal situation due to judicial delays.
95. In this respect, the Government of the Dominican Republic indicated in its observations of September 10, 1999, that "the Supreme Court of Justice, in order to help clear up the backlog in the courts, recently began operation of a centro de citaciones, a center for ensuring appearance of prisoners in court when their cases come up, to ensure that criminal cases are not delayed due to failure of the prisoner to appear."
96. In the same context of expediting handling of the cases, the Government indicated in its observations that the Court of Appeals was hearing 17 cases daily, on average; and noted, further, that it is aware of the need to change the judicial structure, since it resulted in the backlog of cases and the increase in the prison population.
97. Notwithstanding the recent efforts of the Government, in addition to delays in the administration of justice is the official negligence, on failing to strictly enforce provisions that protect public liberties.
98. The Constitution of the Dominican Republic enshrines the right of all persons detained to be brought before the competent authority within 48 hours of his or her detention. If this requirement is not met, the detainee must be released.
99. Despite the above-mentioned guarantee, there are dozens of cases in which persons are arrested and imprisoned without being informed of the charges against them. Many persons have remained in the Dominican prisons for months, and even years, without any verdict in their case. The information received during the Commission's on-site visit indicates that more than 500 detainees being held in preventive detention in the La Victoria prison, the country's largest and most overpopulated, had been held there for longer than would have been the case had they been tried, convicted, and given the maximum sentence. During its on-site visit, the Commission found that the prison population was being reduced by a decision to release those who had been in preventive detention for longer than would have been they case had they been found guilty and given the maximum sentence for the crime of which they were accused.
100. Without prejudice to the value of this measure, the situation of the prisoners held but not convicted is unacceptable. The accused are required to serve the maximum sentence that could have been imposed had they committed the offenses of which they are accused. These persons were never sentenced, their guilt was never shown, and it is their right to be released, and the state's obligation. Nor have measures been taken to make reparation for the damages caused the accused for having been imprisoned for an excessive period awaiting trial.
101. In May 1997, the Public Prosecutor for the National District stated that criminal trials take, on average, two to three years before a judgment is handed down in the trial court. In addition is the time elapsed during the preparatory investigative phase, which by law should conclude within 60 days, and which is normally drawn out for one year to one-and-a-half years.
102. Due process and the principle of equality as between the parties are diminished by what is known as the "frustrated interrogatory": While the judge and the Public Ministry may directly examine the witnesses and the accused, the defense has to pose its questions and observations through the presiding judge of the court.25
103. Even though clear rules are established in the Constitution to guarantee due process, the Code of Criminal Procedure maintains "moral proof," whose purpose is the intimate and subjective conviction of the judge, in contrast to provisions based on principles of objectivity. Attorneys' associations note that this system of judicial weighing of the evidence, which has been dubbed "the tyranny of intimate conviction," as it offers a wide margin of arbitrariness and discretion, should be replaced by a system of jurors and objective proof.26
104. In addition, judicial decisions are based more on evidence obtained in the written documents and files of papers that constitute the "record"--and associated more with the preliminary investigative stage--than on physical and personal evidence debated in the public or plenario phase. This works against the transparency of the criminal trial, and strengthens the perception that justice is arbitrary.
105. The fragmentation and breakdown into sectors of the various components of the criminal justice system as well as the irregularities during the investigation of the cases and the technical procedural difficulties of a system that has become backwards make it possible for the delay in hearing the proceedings to become an expression of the injustice fostered by the very administration of justice. The Comisión Nacional de Derechos Humanos notes the formation of bottlenecks, which make possible the excessive backlog and undermine the functionality of the system, which translates into disrespect for human rights.27
b. Procedures before the Dominican courts
106. As was indicated to the IACHR, one comes before the criminal justice system in the Dominican Republic, in practice, as accused, and not as one informally accused or presumed to be guilty, in violation of the principle of the presumption of innocence. The possibility of preparing an adequate and timely defense from the very moment of the arrest is limited by many factors. While Law 6-96, setting forth the right of any person detained or arrested to place a phone call, was promulgated on August 24, 1996, it should be noted that this can only be done in places with a telephone, which are not common in rural areas. The delays in the proceedings, the cost of hiring a private attorney, and the ineffectiveness of the public defenders help foster the virtual defenselessness and inaccessibility to justice for the accused.
107. The chronic delays in the proceedings result in a large number of sentences imposed that are the term already served, or almost served. The high cost of the steps needed to expedite the processing of the cases makes it impossible for persons on trial, who are deprived of their liberty, to have a timely criminal trial, since they are generally held in preventive detention. The case-law of the Commission is clear in considering, pursuant to Articles 7(5) and 8(2) of the American Convention, "that the accused, who has been deprived of his freedom, is entitled to have his case assigned the proper priority and processed expeditiously by the judicial authorities. This should not constitute an obstacle of any kind that might prevent those authorities, the prosecution and the defense from performing their duties satisfactorily."28 Nonetheless, in the Dominican Republic the public defense is limited, as the public defender system is only applied in the trial phase,29 when in fact the sentence has already been served beforehand.30
108. Article 8 of the American Convention establishes that all persons accused of a crime shall have "the inalienable right to be assisted by counsel provided by the state, paid or not as the domestic law provides, if the accused does not defend himself personally or engage his own counsel within the time period established by law." For the Commission, this provision means that a detainee must have access to an attorney during all important phases of the investigation and trial, particularly from the moment he or she is detained. 31
109. In the Dominican system, the prisoners have no right to a public defender until trial.32 Therefore, during the extended periods of preventive detention to which the prisoners are subjected, they do not enjoy any free legal assistance to help them prepare, for example, requests for release on bail. The Pilot Project of Public Defenders group, which works with prisoners, notes that the public defenders who are finally assigned in the trial stage do not have adequate legal training and often receive the cases immediately prior to having to present them, which means they clearly lack sufficient time to prepare the case.33
110. Furthermore, alternative dispute resolution mechanisms are hardly institutionalized, and are only used to a limited extent in civil and commercial matters. Remedies to protect human rights are of limited application. Habeas corpus, which has existed since 1914, has been criticized by certain sectors because its benefits have been used by persons accused of particularly harmful crimes, such as drug-trafficking. It is in this context that some sectors assail the reputation of the judges, who are inclined to reject the admissibility of this constitutional action, even violating the rights of the accused, in order to safeguard their reputation.
111. In addition to the improper use of habeas corpus in the Dominican judicial system, cases of the ineffectiveness of this remedy have been documented, as the release orders pursuant to recourse to habeas corpus are not enforced by the police. This is reflected in the worrisome situation of Dominicans classified as "desacatados." In the Dominican Republic, presos desacatados is a term used to refer to those prisoners who the authorities hold under arrest despite a judicial decision absolving them of any criminal liability.34 One flagrant example of desacato is the case of Luis Lizardo Cabrera, who, despite having filed several writs of habeas corpus and despite the existence, in his record, of four judicial decisions in his favor, ordering his immediate release, was held by the authorities at the prison center for seven years due to "police orders." 35
112. The Comisión Nacional de Derechos Humanos indicated during the on-site visit that at least 50 people remained imprisoned as desacatados.36 After the visit by the IACHR, the Fundación Institucionalidad y Justicia informed the Commission that the problem of the desacatados persisted, though it had become less common. The same source indicated that it was difficult to determine the veracity of the allegations of desacato, as the executive authorities (Public Ministry) adopted the position of keeping certain persons in prison, arguing that while the detainee had benefitted from a judicial ruling ordering his or her release, it was keeping open another proceeding on grounds different from those that were the subject of the ruling.37
113. It should be noted that the constitutional amparo action is part of the domestic positive law, even in the absence of a statute or regulation explaining its application. The Supreme Court of Justice has recognized, through its case-law, that the amparo provided for at Article 25(1) of the American Convention forms part of the domestic positive law pursuant to Articles 3 and 10 of the Constitution.38 On February 24, 1999, the Supreme Court of Justice ruled on the amparo action brought against a judgment of the Labor Court for the National District, and decided:
To declare that the amparo remedy provided for at Article 25(1) of the American Convention on Human Rights, signed at San José, Costa Rica, November 22, 1969, is an institution of the positive law of the Dominican Republic, since it was adopted and approved by the National Congress by Resolution No. 739 of December 25, 1977, pursuant to Article 3 of the Constitution of the Republic; To determine: (a) that the judge of first instance with jurisdiction in the place in which the act or omission that is challenged has occurred has jurisdiction to hear the amparo action; (b) that the procedure that should be observed with respect to the amparo will be that instituted for referral (el referimiento), regulated by Articles 101 ff. of Law 834 of 1978; (c) the moving party should bring an amparo action against the arbitrary act or omission within fifteen (15) days of the occurrence of the act or omission in question; (d) the hearing for taking cognizance of the action shall be set so that it takes place within three days of receipt of the corresponding motion. Nonetheless, when the action is clearly inadmissible in the view of the judge before whom the matter is brought, this shall be stated in the order, and the case shall be ordered closed. This order shall not be appealable; (e) the judge shall hand down the judgment within five days of the moment the matter is lodged before the court; the appeal, which shall be heard by the corresponding appellate court, shall be filed within three working days of the notice of the judgment; it shall be heard in the same manner and time periods as indicated for the court of first instance, including the period provided for handing down the judgment; (f) the procedures for pursuing the amparo remedy shall be free of court costs.39
114. The Dominican legal order recognizes the important guarantee of conditional release on bail, but its use is seriously restricted in criminal cases, as experience shows that the Public Ministry and the victim lose interest in following up on the criminal proceedings when the detainee has won release by posting bond.
115. As regards the motion for appeal, studies reveal that the decisions of the court of first instance are affirmed in 48.6% of the cases.40 It should be noted that another large percentage of the cases involve merely formal, not substantive, modifications of the decisions. Only minimal use is made of the cassation remedy in criminal cases. Its high cost and the sluggishness in the consideration, analysis, and decision by the Supreme Court of Justice undercut its effectiveness.
116. In addition to the problems mentioned, the Commission was informed that the judicial sector is facing a grave scarcity of resources that keeps it from performing its function appropriately. Court facilities in deplorable conditions, and complete records ruined by inadequate handling and storage, pose serious difficulties to the proper performance of the day-to-day tasks of the judicial system.
C. Reforms undertaken by the Government
117. Notwithstanding the existence of the serious problems mentioned above, the Inter-American Commission on Human Rights acknowledges the efforts undertaken by the Government of the Dominican Republic to improve the situation of the judiciary. The reform of the Dominican judicial system began with the promulgation of a new National Constitution in August 1994. This new bill of rights enshrined some aspects that are essential for the adequate administration of justice in the country.
118. To combat corruption and clientelism within the judicial sector, the Constitution provides a new way of selecting the justices and judges of the Republic. The National Council of the Judiciary (Consejo Nacional de la Magistratura) was created for this purpose, with the responsibility of electing the eleven members of the Supreme Court of Justice; they, in turn, are entrusted with choosing all other judges in the country. In addition to the Constitutional mandate mentioned, the members of the Council have been encouraged to chose suitable judges, due to the debate that has arisen around the designation of the new justices of the Supreme Court. For the first time in the country's history, more objective criteria were taken into account in the selection of the judges, which is of fundamental importance in terms of helping to bolster the legitimacy of the judiciary.41
119. The Commission also recognizes the intent of the Dominican state to modernize and improve the performance of the judiciary by designating a Commissioner for Reform and Modernization of the Justice System, whose mission is to negotiate, coordinate, and give impetus to efforts of all sectors of the state and civil society to facilitate the process of modernizing the administration of justice.42
120. The Commissioner for the Reform and Modernization of the Justice System, among other things, proposed the reform to the prison infrastructure, and specifically has proposed the creation of a "Prison School" for training the security personnel as well as administrative and executive prison staff. This idea is of the utmost importance since the prisons have always been run by the National Police, which has helped bring about situations such as that of the desacatados, due to the resistance of the prison authorities to carry out the judgments. The IACHR considers that it is essential to strengthen the actions of the Commissioner, giving that post stability, resources, and independence.
121. In its observations on the IACHR’s Draft Report, the Government of the Dominican Republic acknowledged the need for a prison police in order to prevent corrupt practices within the prison facilities, and to give the detainees prison treatment that protects their rights and creates the conditions for their rehabilitation. The Government indicated that the creation of the prison police would have to be carried out next year, and that the Commissioner for the Reform and Modernization of the Justice System had recruited the first 320 members, after they were found to have met several requirements, such as psychological studies, job references, etc.43
122. With respect to the question of the detainees, the Commission finds that the Dominican state has begun to release those detainees who have served more time in prison than would have been the case had they been found guilty of the crimes of which they were accused, but considers that this measure is clearly not enough. The IACHR has repeatedly stated its opinion that imprisonment without trial constitutes a flagrant violation of human rights, including the important principle of the presumption of innocence.
123. As part of the reform and modernization of the justice system, the Executive has designated specific commissions for the reform of the Civil Code, the Code of Civil Procedure, and the Criminal Code and Code of Criminal Procedure. The Government is endeavoring, with this review, "to bring the legislation into line with the new times, so as to contribute to strengthening the rule of law and the defense of democracy." 44
124. The Public Ministry has taken a series of initiatives for the purpose of guaranteeing the effective enforcement of the law, safeguarding human rights, and eradicating impunity. These measures include: the enforcement of Law 6-96, of August 24, 1996, on the right to place a phone call; the instructions to the National Police not to exhibit or make known the identities of the accused to the communications media before the presumption of innocence is destroyed; controlling the corpus delicti; assigning assistant attorneys to the Public Prosecutor in the police stations; coordinating the work with their auxiliaries in the National Police and other executive agencies. With respect to the assignment of representatives of the Public Ministry to the police barracks or stations, this has been done in seven police stations and in two prisons. The program carried out in the National District is to be expanded to 21 police stations before the end of the year. The IACHR has not been informed of initiatives to adopt similar measures in other cities of the country.45
125. A Pilot Project for Public Defense has been operating since May 1993 for the purpose of providing legal assistance to prisoners who do not have the economic means to hire defense counsel. Its purpose is to provide legal assistance during the pre-trial stages, since the defendants only have the right to a public defender from the moment of trial. This project has been sponsored by the United Nations Latin American Institute for the Prevention of Crime and the Treatment of Delinquency (ILANUD), the Supreme Court of Justice, the Universidad Nacional Pedro Henríquez Urueña (UNPRU), the United States Agency for International Development, and the Fundación Institucionalidad y Justicia (FINJUS), but it does not receive any support from the state. It is expected that this project will be expanded and officially integrated into all of the country's courts in the near future, but the IACHR notes that it has not been informed of the specific dates for the general implementation of the project.
CONCLUSIONS AND RECOMMENDATIONS
126. The Commission recognizes and values the efforts of the Dominican authorities 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.
127. 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.
128. 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.
129. 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.
130. 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.
131. 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.
132. The Commission expresses its concern over the lack of legal assistance for detainees in the initial stage of the investigation 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.
Notes________________
23 See the report submitted by the Fundación Institucionalidad y Justicia (FINJUS). See also reports on the functioning of the Dominican judicial system submitted to the Commission by the Instituto de Asistencia Jurídica Integral and the Movimiento de Mujeres Domínico-Haitiana during its on-site visit.
24 Tejada, Adriano Miguel, "La Administración de Justicia y el Respeto de las Garantías Fundamentales en la República Dominicana," Revista Ciencias Jurídicas. PUCMM. No. 57. May 1989, p. 301.
25 Article 250 of the Code of Criminal Procedure of the Dominican Republic.
26 FINJUS stated as follows: The system of moral proof or intimate conviction has resulted from the adoption of the French Code of Criminal Investigation of 1808, reformed in 1832, which was translated, adapted, and adopted in 1884, but without the institution of the jury. Since then that Code has not undergone major changes.
27 Comisión Nacional de Derechos Humanos (non-government organization). In some countries the "National Commission on Human Rights" is a governmental body; in the Dominican Republic, this is a non-governmental organization dedicated to the protection of human rights.
28 See Report No. 2/97, regarding 23 cases of preventive detention, against the Argentine state. OEA/Ser.L/V/II.98, doc. 6 rev of April 13, 1998, para. 40, p. 249. See also infra, chapter on the Right to Personal Liberty (preventive detention).
29 Articles 220 and 221 of the Code of Criminal Procedure of the Dominican Republic.
30 Comité Dominicano de Derechos Humanos, Colegio de Abogados, and Comisión Nacional de Derechos Humanos.
31 Annual Report of the Inter-American Commission on Human Rights 1985-1986, El Salvador, OEA/Ser.L/II.68, Doc. 8 rev. 1, September 26, 1986, p. 162; Report on the Situation of Human Rights in Guatemala, OEA/Ser.L/V/II.61, Doc. 47, October 5, 1983, pp. 99-100.
32 Article 221 of the Code of Criminal Procedure of the Dominican Republic.
33 At present there is a Pilot Project of Public Defenders, in which 10 attorneys provide free and ongoing assistance in all phases of the proceedings against the criminally accused. This program, despite having made great strides, is limited to the National District. It has not been officially integrated into the judicial service.
34 Comisión Nacional de Derechos Humanos.
35 See Annual Report of the IACHR 1997, OEA/Ser.L/V/II.98, doc. 6 rev. of April 13, 1998, pp. 846 ff.
36 The Comisión Nacional de Derechos Humanos informed the IACHR during its on-site visit that it had provided a list of 50 desacatados to the Office of the Attorney General in November 1996.
37 Fundación Institucionalidad y Justicia, Inc.
38 Recopilación Judicial, Judgment of the Supreme Court of Justice of June 16, 1990. See also Juan Manuel Pellerano Gómez, Constitución Política de la República Dominicana, Editorial Capeldom, 1994.
39 Amparo action brought by Productos Avon against the judgment handed down on October 14, 1998, by the Second Chamber of the Labor Court for the National District.
40 Estudio Sectorial sobre la Administración de Justicia en la República Dominicana. United Nations Latin American Institute for the Prevention of Crime and the Treatment of Delinquents (ILANUD). Revista de Ciencias Jurídicas. PCUMM. January 1989, No. 53, p. 165.
41 During its on-site visit, the IACHR met with the members of the National Council on the Judiciary and had the opportunity to observe the intense debate on the designation of the new justices of the Supreme Court of Justice. See Gaceta Judicial, May 1997, p. 4.
42 The priority areas of work of the Commissioner are:
1. To contribute, in coordination with the competent authorities, improvement
of the prison system;
2. To promote opportunities for analysis and dissemination for modernizing the
current provisions, so as to bring them into line with the requirements of the
times, and to achieve effective justice;
3. To contribute to improving the productivity and efficiency of the administration
of justice, modernizing judicial offices and training administrative personnel;
4. To develop training and continuing education plans with all members of the
Public Ministry;
5. To promote mechanisms for legal assistance and defense for the most vulnerable;
6. To support the system for the protection of and to ensure justice for children
and adolescents.
43 Observations submitted by the Government of the Dominican Republic to the Draft Report of the IACHR, September 10, 1999, pp. 7 and 8.
45 Fundación Institucionalidad y Justicia.