CHAPTER VI
THE RIGHT TO PERSONAL LIBERTY
A. Legal provisions
190. The protection of the right to personal liberty is enshrined in Article 8(2) of the Dominican Constitution, which indicates that no one may be deprived of his or her liberty without a reasoned and written order from a competent judicial officer, except in the case of flagrante delicto.81 In addition, there is a term of 48 hours for the person detained to be brought before the competent judicial authority or released.82 Article 8 also enshrines the right to an impartial trial and the exercise of the right to defense.83
191. The Code of Criminal Procedure of the Dominican Republic refers to the conditions that must be met to make an arrest. Article 96 indicates that the arrest warrant must contain a statement of the conduct that is the basis for its issuance, and also a cite to the law that declares that such conduct constitutes a crime or offense.
192. Article 7 of the American Convention on Human Rights establishes the guarantees of the right to personal liberty in the following terms:
i. Every person has the right to personal liberty and security.
ii. No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto.
iii. No one shall be subject to arbitrary arrest or imprisonment.84
B. Arbitrary detentions
193. Despite the domestic provisions that protect the right to personal liberty, the Commission has received several complaints alleging arbitrary detentions and continuing violations of the 48-hour period set forth in the Constitution by the police and security forces. The practice of the police and security force agents has been to detain those who seem suspicious of some offense, and to keep them incommunicado indiscriminately until the police agents determine who deserves to be released and who should continue to be detained and reported as such. The Colegio de Abogados and human rights organizations told the Commission that violations of the 48-hour period and of the right to due process are common in the Dominican Republic.85
194. The Commission has also received reports of the use of excessive force during detentions by the police and members of the armed forces of presumed criminals or persons who participate in peaceful public demonstrations. The IACHR, during its on-site visit, received allegations of police conduct that include irregular detentions, abuse, extortion, abuse of detainees, and arbitrary detention of family members of suspects to force the suspects to turn themselves in.86
195. The Commission is currently carrying out investigations into these complaints, in which it is alleged that repeated violations have been committed by agents of the National Directorate for Drug Control (DNCD) and members of the National Police.
196. The Government of President Leonel Fernández has announced changes aimed at making the functions of the agents of the security forces more trustworthy and at guaranteeing respect for fundamental rights. This is the case of the police, with respect to which one can highlight the prohibition of roundups and the obligation on the Police Commanders to report the previous day's arrests to the local prosecutor, so as to avoid violations of the maximum time of detention of 48 hours. Along these same lines, Law No. 6 of 199687 allows detainees to place one phone call to their family members, or to their embassies in the case of foreigners.
197. During its on-site visit, the Commission met with the Chief of Police, José Aníbal Sanz Jiminián, who made a commitment to take measures aimed at educating his personnel in respect for human rights, including the use of investigative techniques compatible with such rights.
198. The Commission took note of these advances by the Government; nonetheless, it has continued to receive complaints of police conduct that include arbitrary and illegal detentions, accompanied by the excessive use of force.
199. In its observations submitted September 10, 1999, the Government of the Dominican Republic reported on the recent inauguration of the Advanced Police Studies Institute (IPES), where National Police officers will receive specialized training, and the objective of which will be to increase the operational and administrative capabilities of 25,000 members.
a. Massive arrests by the police and other police operations
200. Violations of the right to personal liberty in the Dominican Republic are expressed in several ways. Normally, these violations occur as a result of the massive arrests by the police during roundups or when there are demonstrations or protests. Even though roundups are prohibited, they continue, affecting the right to personal liberty. While Comisión Nacional de los Derechos Humanos noted that the police roundups had been reduced, those roundups carried out by the National Directorate for Drug Control (DNCD) continued. As a result of these actions, complaints were lodged of arbitrary detentions marked by violence and the abuse of police power.88
201. The illegal practice of filling a given sector with police or military forces, usually a populous and marginal sector, to indiscriminately apprehend the passers-by, who are local residents, usually young men, taking them to barracks and holding them there for an indeterminate period of time for purposes of screening, is largely equivalent to imposing a sudden and undeclared state of siege in any poor neighborhood of the country.89
202. The information submitted to the Commission indicates that this practice has stepped up in recent years and has been justified by some chiefs of police on the grounds of its alleged effectiveness for arresting (a minimal number of) alleged criminals, even though it is necessary to "disturb" honest citizens. Such disturbances include arbitrary arrests, being taken by force to the barracks, searches and frisks, and even extortion in exchange for reducing the time of the screening process, so as to facilitate getting back to one's daily work.90
203. Non-governmental organizations told the Commission that the practice of organizing roundups had been suspended in 1997; nonetheless, in 1998 they resumed, with the same consequences and abuses as in previous years. It was also noted that "selective searches" continue to be carried out in which vehicles and individuals are detained at the points of entry to towns, and along the roads leading into the large cities.91
204. The IACHR understands the need to satisfy the legitimate expectations of the citizens of living in peace and security, and does not wish to downplay the impact of crime and delinquency on the living conditions of the population. Nonetheless, the Commission is firmly convinced that respect for and the promotion of human rights are essential for peace and citizen security. Measures such as roundups can only provide temporary security, encourage arbitrary acts and violence, and clearly create a vicious circle of more violence and more crime. Arbitrary measures such as the roundups not only violate the basic rights of broad sectors of the population, but represent, per se, the antithesis of government of the rule of law.
b. Detentions during demonstrations and protests
205. Human rights groups have denounced to the Commission that during demonstrations and protests it is common for the Dominican police to carry out arbitrary detentions, indiscriminately affecting hundreds of people. On November 18, 1996, acts of violence occurred between the National Police of the Dominican Republic and a group of demonstrators in the community of El Café. One death, several persons injured, and hundreds of detentions were the outcome of the action by the National Police in that community.92 The residents had organized a peaceful demonstration to protest the evictions to which, they alleged, they were being subjected. The confrontations began when the National Police arrived on the scene and its agents destroyed the small and humble dwellings that had been put up on disputed lands. Immediately, the Police threw tear gas and pellets, injuring several persons and killing one. The IACHR does not dispute the need and even the duty of the authorities to maintain public order; nonetheless, proportionality in the use of police power, and adequate training and equipment, cannot be replaced by measures that clearly end up creating situations marked by grave social consternation.
206. On April 26, 1997, a similar even occurred once again in the community of El Café. During the demonstration, organized to demand government monies for a health center located in the El Paraíso sector, dozens of people, members of grass-roots organizations, were arbitrarily arrested for the mere fact of being present at the tumultuous event. They were detained and interrogated in the city of Barahona, to which they had been taken. One young student, 17 years old, William Carrasco, was killed by a gunshot wound to the head fired by a National Police agent.
207. On October 26, 1997, the Chief of Police announced that the Special Operations Unit had arrested over 500 residents of areas near Santo Domingo. The authorities noted that they detained these persons because they were under suspicion of wanting to cause acts of violence in a strike planned for November 11 and 12, 1997. The government never brought charges against the persons detained; nonetheless, it held them in custody until the end of the strike. Furthermore, the practice of carrying out massive and arbitrary detentions had officially been suspended by the Chief of Police just a few months before those violations were carried out.93
208. The general strike called by the Coordinadora de Organizaciones Populares, Sindicales y Choferiles, demanding a wage increase, took the form of a work stoppage of public transport on November 27, 1997. The same day, members of the Anti-Riot Department broke up the demonstration by clubbing and violent shoving, arresting more than 30 drivers, who, according to the National Police, were disturbing the public order and blocking free transit. The leader of the strike, Juan Hubieres, indicated that at no time did the drivers disturb the public order, and the protest unfolded peaceably. Once the 48 hours had gone by, the Comisión Nacional de Derechos Humanos made an appeal to the Office of the Attorney General for them to be released.94 The IACHR does not justify actions that breach the requirements of public order. The most efficient and lasting means of ensuring such order, however, is strengthening the rule of law. In situations such as those described above, measures should be taken to ensure the exercise, by citizens, of their legitimate rights, while at the same time guaranteeing order within the law. Allegations of violence or the use of force should be appropriately investigated, and those who turn out to be responsible should be punished.
c. Detentions of family members as a means of coercion
209. Another form of detention used by the investigative departments of the National Police and other executive agencies is to detain family members or others close to the suspects or alleged criminals for the purpose of securing their "voluntary" surrender. This repugnant form of abduction violates several legal principles, including that of the personal quality of punishments.
210. The case of Mrs. Ramona Pozo, 70 years of age, has been noted as one example of this practice. She was detained for three days, as a hostage, in July 1997; her release was made contingent on the surrender of her son, Ramón Pozo, alleged to be a criminal, to the authorities.95
211. According to information received by the Commission, this practice has not subsided; nonetheless, it is only applied selectively in cases of persons sought on accusations of robbery or violation of the drug laws.96
C. Desacato
212. The Law on Habeas Corpus, at Article 19, protects the personal liberty of those on whose behalf release orders have been issued: "Once release is ordered by the Judge, Court, or Tribunal, no official may refuse to carry out the release order under any pretext." The same law indicates that an officer who refuses to carry it out shall be punished pursuant to the Articles 114 ff. of the Criminal Code.
213. Case No. 11,203, Johnny Tejada et al., processed by the Commission in 1995, is an example of the violation of the right to liberty of 45 persons who were detained despite the issuance of judicial rulings ordering their release. The National Police refused to respect the decisions of the courts of the Dominican Republic. After receiving the request for information from the Commission, the Government indicated that 18 people had been released. The petitioners indicated later that the rest of the desacatados has been released.97
214. Another example of desacato is to be found in Case No. 10,832, of Luis Lizardo Cabrera, who remained in prison for seven years even though his release had been ordered through several writs of habeas corpus. The National Police refused to carry out the judicial resolutions favorable to Mr. Lizardo Cabrera, alleging that he was to remain in prison "on grounds of police orders."98 Contempt for a judicial order should be duly punished. The IACHR has not received any information indicating that this has happened.
D. Preventive detention
215. On several occasions, the Commission has reiterated that:
The legal situation of the individual in preventive detention is highly imprecise: there is an aura of suspicion against that person, although it has not yet been possible to establish his or her guilt. Persons in custody under such circumstances usually suffer greatly as a result of the loss of income and forced separation from their families and communities. Emphasis should also be placed on the psychological and emotional impact to which they are exposed so long as that situation persists.99
216. During the Commission's on-site visit, the statistics presented by the government authorities reflected that the percentage of prisoners held in preventive detention accounted for 85% of the prison population. Later, the Government of the Dominican Republic, by communication of January 12, 1998, informed the Commission that the number of prisoners awaiting trial as a percentage of all prisoners had been reduced by 15%, due to the reforms being carried out in the judicial system.100
217. The American Convention, at Article 7(5), provides that all persons detained must be brought before a judge, without delay, and in keeping with the law shall have the right to be judged within a reasonable time, or to be released without prejudice to the continuation of the proceedings. Detention in the Dominican Republic should be consistent with the rights protected in the Convention.
218. Article 7(6) guarantees the right to recourse before a competent court for it to decide, without delay, on the legality of an arrest. Even though the Law on Habeas Corpus of the Dominican Republic101 also guarantees the right to a remedy, in practice the rights to liberty and due process are restricted in the case of detainees for reasons attributable to the serious shortcomings of the Dominican courts.
219. In this respect, the Commission has noted: "In order to ensure effective judicial oversight of the detention, the competent court must be quickly apprised of the persons who are held in confinement. One of the purposes of such action is to protect the well-being of the persons detained and to avoid any violation of their rights. The Inter-American Commission on Human Rights has determined that, unless such detention is reported to the court, or the court is so advised after an appreciable length of time has elapsed from the time the subject has been deprived of his freedom, the rights of the person in custody are not being protected and the detention infringes that person's right to due process."102
220. Another characteristic common to several of the prolonged preventive detention cases is the violation of the right of presumption of innocence guaranteed by Article 8(2) of the American Convention. The right to the presumption of innocence requires that the duration of preventive detention not exceed the reasonable time period mentioned in Article 7(5). Otherwise, such imprisonment takes on the character of an anticipated punishment, and constitutes a violation of Article 8(2) of the American Convention.103
221. The Commission considers that preventive detention creates "a sort of pressure on the judge who evaluates the evidence and applies the law in an effort to adjust the sentence of guilt to the de facto situation which is depriving the accused of his freedom. In other words, it increases the possibility that the accused may be given a sentence which justifies the prolonged duration of preventive detention, even though the evidence leading to conviction may not be all that convincing."104
222. With respect to Chapter III of this report, there is a close relationship between the problems that affect the Dominican legal system and the violation of the right to personal liberty. Even though there are national and international laws protecting that right, the lack of resources and expeditiousness of the judicial system has a negative impact on the implementation of due process, whose objective is to protect the right to personal liberty. In principle, the Dominican judicial system has been established to protect the rights of the detainees; nonetheless, in practice preventive detention subverts the parameters of detention stipulated by law.
CONCLUSIONS AND RECOMMENDATIONS
223. 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.
224. 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.105 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.
225. 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.106
226. The Commission recommends that the Government of the Dominican Republic 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 detainee should immediately be released.
227. The Commission urges the authorities of the Dominican Republic 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.
228. Despite the commitment of the Dominican Government to take measures aimed at educating its personnel in respect for human rights, including the laws in place in the country, as well as 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.
229. The Commission recommends that the state adopt all necessary 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.
230. 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.
231. The Commission strongly recommends that the Dominican authorities 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.
232. 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.
Notes_____________________
81 Article 8(2)(b) of the Dominican Constitution.
84 The complete text of Article 7 is as follows:
1. Every person has the right to personal liberty and security.
2. No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto.
3. No one shall be subject to arbitrary arrest or imprisonment.
4. Anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him.
5. Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial.
6. Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished. The interested party or another person in his behalf is entitled to seek these remedies.
7. No one shall be detained for debt. This principle shall not limit the orders of a competent judicial authority issued for nonfulfillment of duties of support.
85 Comisión Nacional de los Derechos Humanos and Colegio de Abogados.
86 Centro de Educación y Asesoría Jurídica (CEAJURI) and Comité Dominicano de Derechos Humanos.
87 Law No. 6 of 1996: "Right to place a phone call," Santo Domingo, August 24, 1996.
88 Report of the Comisión Nacional de los Derechos Humanos, submitted to the IACHR during its on-site visit in June 1997.
89 Fundación Institucionalidad y Justicia.
90 Comité Dominicano de Derechos Humanos; Fundación Institucionalidad y Justicia.
92 Report by the Comisión Nacional de los Derechos Humanos.
93 During its on-site visit to the Dominican Republic, the Chief of Police announced to the IACHR the prohibition on roundups. See supra para. 196.
94 Press statement of the Comisión Nacional de los Derechos Humanos.
95 Human Rights Watch, World Report 1998, p. 60.
96 Fundación Institucionalidad y Justicia.
97 Case 11,203, Johnny Tejada et al. v. the Dominican Republic.
98 The IACHR published Case No. 10,832, Luis Lizardo Cabrera, Report 35/96, in its Annual Report for 1997, pp. 846-868.
99 Report No. 2/97 on 23 cases of preventive detention against the Argentine State. Doc. OEA/Ser.L/II.98, doc. 6 rev., April 13, 1998.
100 Report of the Government of the Dominican Republic, submitted to the Inter-American Commission on Human Rights, January 12, 1998.
101 Law on Habeas Corpus, No. 5353, of October 22, 1914, published in Gaceta Oficial No. 2550. Article 1, amended by Law No. 160, of May 25, 1967, published in Gaceta Oficial No. 9036.
102 See Report No. 2/97, op. cit., note No. 99. See also Second Report on the Situation of Human Rights in Suriname. OEA/Ser.L/V/II.66, doc. 21/Rev. 1, 1985, pp. 23 and 24.
103 Id., Report 2/97, op. cit., para. 11.
105 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.