CHAPTER V

FOLLOW-UP OF THE RECOMMENDATIONS FORMULATED BY THE IACHR IN ITS REPORTS ON THE SITUATION OF HUMAN RIGHTS IN MEMBER STATES

INTRODUCTION

1.                 The IACHR’s practice of following up on its reports on the human rights situation in member states is aimed at evaluating the measures adopted by the states to comply with the recommendations made by the IACHR in its reports. This practice is based on the functions of the IACHR, the principal organ of the OAS responsible for the protection and promotion of human rights, contemplated in Articles 41(c) and d of the American Convention, in concordance with Articles 18.c and d of the Statute and Article 57(h) of the Rules of Procedure of the Commission.

2.                 The initiative of evaluating compliance with the recommendations contained in such reports in a separate chapter of the IACHR’s Annual Report dates back to 1998 and the report on the situation of human rights in Ecuador.[1]  Subsequently, in its 1999 Annual Report, the IACHR included follow-up reports on compliance with its recommendations contained in the reports on Brazil (1997), Mexico (1998), and Colombia (1999).[2]   In its 2000 Annual Report, the IACHR mentioned that the follow-up report on compliance with the recommendations for the Dominican Republic would be included in the next Annual Report of the IACHR.[3]

3.                 The reports included in this Chapter attempt to evaluate the measures taken to comply with the recommendations put forward by the IACHR in its reports on Paraguay (2001), Peru (2000), and the Dominican Republic (1999). To that end, the three aforementioned states were asked to provide all the information they considered pertinent, in accordance with the above-mentioned provisions. Apart from the official information received or obtained from sources accessible to the public, the Commission also used documents and reports from global organs for the protection of human rights, as well as information culled from civil society organizations and the media.

4.                 The Commission also decided to include in this Chapter its follow-up to case 9903 Rafael Ferrer - Mazorra (Marielitos) vs. United States, which was published in the 2000 Annual Report of the IACHR.

5.                 The Commission considers it appropriate to include the follow-up on this case, given the special circumstances and significance of the research on standards of international human rights law applicable to the detention of immigrants, and given the availability of detailed, up-to-date information on the status of the numerous petitioners included in the reply of the Government of the United States.

FOLLOW-UP REPORT ON COMPLIANCE WITH THE RECOMMENDATIONS OF THE IACHR
ON THE SITUATION OF HUMAN RIGHTS IN THE DOMINICAN REPUBLIC

I.        BACKGROUND

1.                 The Inter-American Commission on Human Rights (hereinafter the “IACHR” or the “Commission”), at its 104th session adopted the third “Report on the Situation of Human Rights in the Dominican Republic”, which was published on October 7, 1999.  In its report, the Commission addressed the political and juridical structure of the Dominican Republic (hereinafter the “Dominican State”, the “Dominican Republic” or the “State”) and progress in Dominican laws in the area of human rights, and then examined the general issue of human rights in the country, particularly in connection with the administration of justice; the right to life, to humane treatment, to personal liberty, and to freedom of thought and expression; prison conditions and the situation of prisoners; the situation of Haitian migrant workers and their families; and the situation of women and children.  Finally, the IACHR made recommendations on each issue examined.[4]

2.                 On 2 February, 2001, the Commission wrote to the Dominican State to request it for information on compliance with the recommendations made by the IACHR in its special report.  On February 13, 2001, the State requested an extension of the period granted to present information.  By a communication dated February 28, the State invited the IACHR to conduct a follow-up visit to the Dominican Republic, from November 13 to 16, 2001, in order for the respective authorities to show the progress made in the area of human rights. The State mentioned that the Dominican authorities would deliver the follow-up report in the course of this visit.  The IACHR accepted the aforesaid invitation and decided to put off analysis of its follow-up report until after the visit to the Dominican Republic.  However, owing to the tragic events in New York and Washington, D.C. on September 11, 2001, the Commission postponed its regular meeting at the 113th session in order to hold it from October 9 to 19; the hearings and work meetings for that session were held from November 12 to 16, 2001, for which reason it was not possible to carry out the aforesaid follow-up visit.

3.                 As a result of the foregoing, on September 28, 2001, the IACHR requested the Dominican State for information on compliance with the recommendations made in its special report.  The State’s reply was transmitted to the IACHR on November 14 of that year by means of note DOI-DDHH-216-01. This document, entitled “Executive Summary of the Reply of the Government of the Dominican Republic to the 1999 Report of the Inter-American Commission on Human Rights” (hereinafter, “the Reply of the Dominican Government”) and prepared by the Ministry of Foreign Affairs, is based on information provided by the government agencies involved in the implementation of the recommendations of the IACHR.

4.                 At its 114th regular session (from February 25 to March 15, 2002), the IACHR adopted the “Draft Follow-up Report on the Situation of Human Rights in the Dominican Republic”, which was transmitted to the Dominican State on March 8, 2002, and granted it 30 days to present its observations.  On April 4, 2002 the State presented its observations which have been incorporated, where appropriate, to the final version of this Report which was approved by the IACHR on April 16, 2002.

5.                 The IACHR has continued to observe the evolution of human rights in the Dominican Republic over the past two years and has evaluated compliance with its recommendations through analysis of information provided by the State and by other reliable sources.  The various items of information for 2000 and 2001 have enabled the IACHR to prepare this follow-up report on the main issues of the human rights situation in the country, based on the recommendations made in the 1999 report, in compliance with its mandate to promote and protect human rights in the region.

II.       LEGISLATION, INTERNATIONAL INSTRUMENTS, AND PROMOTION OF HUMAN RIGHTS

6.                 The Commission wishes first to mention that in its 1999 Report on the Situation of Human Rights in the Dominican Republic, it valued the efforts of the Dominican State in its support for recent legislative changes aimed at guaranteeing protection for the fundamental rights of its nationals, such as the new Code of the Minor and the Law on Family Violence.[5]  By the same token, the Commission was pleased to note the decision of the Dominican State to accept the jurisdiction of the Inter-American Court of Human Rights in March 1999, pursuant to Article 62 of the American Convention on Human Rights.

7.                 In its 1999 report, the Commission took note of the observations of the Government, by which it indicated that 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 Forced Disappearance of Persons had been deposited in the National Congress, and are merely pending ratification. The Government indicated that it had begun the process for acceding to the Protocol to the American Convention on Human Rights to Abolish the Death Penalty.  Consequently, in its 1999 report, the Commission invited the Dominican State to ratify the international instruments for protection of human rights that had not yet been ratified.[6]  The Commission has had no reply from the State regarding progress in this area.

8.                 The Commission notes with satisfaction the promulgation of Law Nº 19/01, which creates the office of the Ombudsman (Defensor del Pueblo), as an independent authority to safeguard the rights of citizens when these are violated by public officials.[7]  This office was created in February 2001; however, to date, no incumbent has been appointed thereto.

9.                 In its reply on compliance with the recommendations of the IACHR, the Dominican State said that as part of the reform and modernization of the justice sector, the task of modification of codified norms was entrusted to Commissions on the Review of the Civil, Criminal and, Business Codes, as well as of the Codes of Civil and Criminal Procedure.  Nongovernmental organizations told the IACHR that the Draft Code of Criminal Procedure was discussed and adopted by the Senate Committee on Justice, and was currently before the Chamber of Deputies for discussion.  The other draft codes had not yet been discussed in Congress.[8]

10.             Human rights organizations in the Dominican Republic say that the most important reform to be implemented recently is Law 50/00, which provides for the reorganization of the Criminal Chamber of the Court of Appeals for Santo Domingo, as well as the Courts of First Instance and of Criminal Investigation for the National District and Santiago.  The aforesaid organizations have also mentioned that debate continues in the National Congress on the immovability of justices of the Supreme Court based on a reform of the Constitution.  According to human rights organizations, it is feared that some bills recently submitted to Congress might entail setbacks for protection of human rights; for instance the bill of amendment of Law 14/94, which lowers the age of indisputability of minors from 18 to 16 years and increases prison sentences; and the bill of Reform of the Institutional Law on the Police and the Police Tribunals (Ley Institucional de la Policía y los Tribunales de Justicia Policiales), which would strengthen the role of the police, weaken the Public Ministry, and foster impunity for agents and officers involved in human rights violations.[9]

11.             The Inter-American Commission hopes that its recommendations will be effectively implemented in the framework of the legislative reforms that are about to be adopted by the National Congress and that those reforms will tend to ensure more adequate protection of human rights for the Dominican people.

12.             In its report on the Dominican Republic, the Commission also stressed that the spirit of modernization in the Government had helped to usher in new opportunities and initiatives to promote human rights in the country.  The Commission has received information on the various promotion programs implemented by various State organs. In this context, the Dominican Government invited the Inter-American Commission to hold a joint seminar on “The Inter-American System of Protection of Human Rights”.  That seminar was attended by Dr. Juan Méndez, First Vice President of the Commission, Dr. July Prado and Dr. Helio Bicudo, Members of the IACHR; Dr. Bertha Santoscoy, lawyer in charge matters relating to the Dominican Republic, and Dr. Raquel Poitevien.  The seminar was held in Santo Domingo from August 23 to 24, 2001, and was attended by representatives from diverse State authorities, as well as representatives of nongovernmental human rights organizations.  The seminar produced an interesting exchange of ideas between the participants and the IACHR.

III.      RIGHT TO JUDICIAL RECOURSE AND THE ADMINISTRATION OF JUSTICE

13.             In its 1999 Report on the Situation of Human Rights in the Dominican Republic, the Commission examined the problems identified with the administration of justice in the Dominican Republic and described policies that the Government had designed to deal with that situation.  The IACHR valued the efforts of the Dominican authorities to reform the judicial apparatus, so that its citizens might enjoy adequate protection for their fundamental rights.  While the Commission took note that some changes had taken place in the judicial system, it hoped that these would be extended to all branches of the judiciary.  The Commission recommended 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. It further recommended that the judicial career service be strengthened in order to give judges job stability.^[10]

14.             In its reply on compliance with the recommendations of the IACHR, the State mentioned that major structural changes had been implemented to strengthen the legal system.  The Commissioner for the Reform and Modernization of the Justice System played a pivotal part in the initiatives to strengthen the judicial system.  The State mentioned that Decree 22-98, of January 12, 1998, provided the strategic directions in whose framework the Commissioner was to implement the following projects: a) improvement of the prison system; b) modernization of laws; c) improvement of productivity in the administration of justice; d) promotion of mechanisms for assistance and defense of those most at risk; and, e) support for the system for children and adolescents.

15.             The Government says that the contributions of this institution to the reform and modernization of the justice sector were through the coordination of efforts for the amendment of codified substantive and procedural standards by the Committees for Revision of the Civil, Criminal and, Business Codes, as well as of the Codes of Civil and Criminal Procedure.  The Government also mentions that the task of strengthening the Judiciary entrusted to the Commissioner for the Reform and Modernization of the Justice System was broadened to strengthening the Public Ministry, through implementation of training programs for this institution and adoption of the Public Ministry Statute, by which the latter was accorded functional and administrative independence.^[11]  The State also mentions in its reply that by tapping funds from various sources it was possible to procure computer equipment for installation in several departments of the Office of the Public Prosecutor for the National District and in the Criminal Courts.^[12]  Other sources informed the IACHR that the National Magistracy School provided training to 530 judges and had been preparing seminars on human rights, in particular in the areas of domestic violence and judicial ethics.^[13] 

16.             In its 1999 report, the Commission also expressed its concern over the large number of persons being held in preventive detention who are still in the Dominican prisons and recommended that the State quickly adopt measures to correct the chronic delays that characterized the administration of justice.  In particular, the IACHR recommended that 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.

17.             In that connection, the Dominican State informed the IACHR about the implementation of new dispute settlement mechanisms through the creation of Community Mediation centers, the purpose of which is to lighten the caseload of the traditional courts.  The Government mentioned that currently there are two such centers located in the areas of María Auxiliadora and Los Alcarrizos and ways were being studied to broaden these services.  The Government also mentioned that the appointment of a Coordinating Judge by the Supreme Court of Justice had enhanced supervision and, at the same time, speeded up the process of allocating cases to the Courts of Preliminary Investigation at the pre-trial stage.  The Government mentioned that public prosecutors were being more diligent about observing the 48-hour limit, due to the orders issued by the Office of the Attorney General regarding strict compliance with that deadline.^[14] 

18.             The Commission has been informed by various sources that the Judiciary has made progress as regards showing its independence as an institution.  There has been some improvement in the administration of justice as a result of the cooperation between the Judicature and the Office of the Prosecutor for the National District.  According to what the IACHR has been told, the most important reform implemented in the administration of justice is Law 50/00, which reorganizes the Criminal Chamber of the Court of Appeals for Santo Domingo, as well as the Courts of First Instance and of Criminal Investigation for the National District and Santiago.  However, the IACHR has also been informed that the above has not helped to speed up judicial proceedings, nor to reduce the number of prisoners without convictions, as was intended.^[15] 

19.             According to the information provided to the Commission, in 2000 the number of new cases diminished through the efforts of Community Mediators, and the number of judicial rulings increased.^[16]  Nevertheless, the Commission has found that the administration of justice continues to be slow and the high proportion of prisoners held in preventive detention has not declined in the Dominican Republic.  The statistics contained in the “List and Percentage of Inmates by Prison and Legal Situation in the Dominican Republic”, prepared by the General Bureau of Prisons, show that in October 2001 the prison population stood at 16,406, of which 4,759 had been convicted and 11,647, or approximately 71%, were still in preventive detention.[17]  

20.             In its special report, the Commission also expressed its concern over the lack of legal assistance for detainees in the initial stage of the investigation phase.  The Commission urged the State to institute measures to give priority to the right to legal counsel through assistance provided by public defenders, and to enact provisions that guarantee for detainees the protection of due process and the right to liberty.[18]  This recommendation has to do with the problem of arbitrary preventive detention suffered by prisoners.  The Commission mentioned in its special report that, ”[i]n the Dominican system, the prisoners have no right to a public defender until trial. 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.”[19]   The Commission also mentioned that, “in the Dominican Republic the public defense is limited, as the public defender system is only applied in the trial phase, when in fact the sentence has already been served beforehand.”[20] 

21.             With respect to this issue, the Dominican State mentioned the creation of the Commissioner’s Public Defense Program (Programa de Defensa Pública del Comisionado), which consists of a free legal defense and assistance service for detained persons who do not have enough financial resources to retain the services of a private attorney.  The State said that more than 6,000 people had benefited from this program, and 700 to 800 cases were being handled each month.  The State mentioned that in addition to public defenders and ongoing university programs, the Commissioner’s Public Defense Program provided assistance to inmates from the moment they were deprived of their liberty.  

22.             The Commission has been informed that in 2000 the Office of the Public Prosecutor for the National District was placing lawyers at police stations that had large volumes of cases, and at several offices of the National Directorate for Drug Control (DNCD), in order to ensure that the investigation procedure and the rights of detainees were respected.  However, it was also mentioned that this initiative was largely confined to the metropolitan area, with a lesser presence observed in cities in the interior.  Some nongovernmental sources have said to the IACHR that despite the efforts and progress of the Commissioner for the Reform and Modernization of the Justice System, there has been a setback to the administration of justice because this organ’s budget was cut in 2001, with the result that the Public Defenders Program (Programa de Defensoría Pública) had to be suspended temporarily.  Ultimately, this worsens the situation because the public defenders who provide assistance to people of few means only take part in the trial phase, and therefore the latter are left undefended during the preparation of the criminal investigation phase.[21]

23.             Human rights organizations have told the IACHR that in 2001 all the public prosecutors, attorneys general of courts of appeal, and ombudsmen for minors across the country were removed, putting an end to all their work and training efforts.  According to these organizations, the progress made by public prosecutors at police headquarters was lost and the police have retaken control of preliminary criminal investigations in which the fundamental rights of individuals regarded as suspects are violated.

24.             According to the information received by the IACHR, the criminal process begins with the arrest of the possible suspects, who are presented to the mass media, which violates the principle of presumption of innocence.  The most serious violations occur when the police keep suspects in detention for a long time, and fail to take them before a judge within 48 hours as the Constitution prescribes.  Nor are they allowed to exercise the right to make a telephone call to a relative or lawyer in accordance with Law 6/96.  On those occasions when they are permitted to call a lawyer, the police do not allow the latter to be present at interrogation, alleging that presence of lawyers interferes with their investigations; and the results of these interrogations frequently form the only evidence presented at the trial. The Commission has heard that confessions are frequently obtained through physical and psychological torture and sometimes the police resort to the illegal arrest of relatives to force the detainees to cooperate.

25.             The Commission has been informed of a certain improvement as regards efficiency in the administration of justice, thanks to the law ordering an increase of the number of criminal courts and preliminary investigation courts.  However, given the large numbers of people detained, these measures are as yet insufficient and the resources for investigation, which are in the hands of the police, are quite inadequate.

26.             The Commission values the decisions adopted by the Dominican State in its effort to strengthen the judicial system.  The importance of the aforementioned progress in the administration of justice notwithstanding, the Commission sees that the plan of the State to reduce the backlog of cases in the courts has not been implemented.  Excessive delay in the judicial process is one of the reasons why 71% of prisoners are in preventive detention.  Although the Commission notes that the authorities are conscious of the problem and are making efforts to improve the situation, the IACHR finds that the recommendations contained in the 1999 report, with respect to the administration of justice, have not been satisfied. 

IV.      RIGHT TO LIFE

27.             In its 1999 Report on the Situation of Human Rights in the Dominican Republic, the Commission expressed its concern over the high number of complaints regarding extrajudicial executions, and that for the most part they appeared to be related to abuses committed by agents of the National Police, the National Directorate for Drug Control, and the Armed Forces, who overstepped the bounds of their authority and abused their power, using excessive force in actions that ended with the death of the victims.[22] In that connection, the Commission urged the Dominican State to adopt urgent measures to carry out an exhaustive investigation into violations of the right to life, so that those responsible might be judged and punished by the regular justice system. The Commission reiterated that the State was responsible for violations of human rights whether or not they were perpetrated by State agents when they were not adequately investigated, nor their perpetrators punished nor full reparation made for their consequences.  The IACHR also recommended to the State that it suspend, on a preventive basis, any security agent involved in alleged violations of the right to life, while the complaints lodged were investigated.[23] 

28.             In its reply, the Dominican State provides no information about concrete measures adopted by the Government to combat the use of violence by the security forces in the pursuit of their functions.  Nor does the State provide a specific reply regarding the recommendation of the Commission "to carry out an exhaustive investigation into violations of the right to life, so that those responsible might be judged by the regular justice system."  

29.             The IACHR notes with concern that the number of summary executions increased.  According to information received by the Commission, in 1999 there were approximately 200 extrajudicial executions.[24]  The above comes in addition to the 250 reports of extrajudicial executions committed by the police in 2000.[25]  The Dominican State, in its report to the United Nations Human Rights Committee, says that in 2000, 229 people suffered violent deaths at the hands of the police force in 2000, and that according to other sources the figure could be higher still.[26]  Various human rights organizations allege in communications to the IACHR that the number of extrajudicial killings at the hands of the Police increased in 2001 to more than 250.[27]

30.             The main argument of the National Police continues to be that the deaths are caused by exchanges of fire during the pursuit of persons suspected of crimes and offenses, such as robberies, theft, etc.  The above situation is worsened because it has been, to some extent, stimulated by the “tough-line” approach of the authorities to stop the crime wave that is hitting the country.[28]  Human rights organizations say that “with the protection of a uniform, the police can use unwarranted lethal force against crime suspects as a way of taking the law into their own hands.  Furthermore, some victims are involved in private disputes with police agents, while others have turned out to be honest citizens mistakenly caught up in the wave of violence waged by the police against gangs.  The vast majority of murders occur in dubious circumstances but there are usually no witnesses other than the police.”[29]

31.             In that connection, it is important to recall what the Inter-American Court of Human Rights has previously found:

Without question, the State has the right and duty to guarantee its security. It is also indisputable that all societies suffer some deficiencies in their legal orders. However, regardless of the seriousness of certain actions and the culpability of the perpetrators of certain crimes, the power of the State is not unlimited, nor may the State resort to any means to attain its ends. The State is subject to law and morality.[30]

32.             The Commission observes with concern the lack of action on the part of the competent authorities to punish the culprits of extrajudicial executions.  One example of the foregoing is the case of Víctor Matos Espinosa, Antonio Ramón Hernández, and Julio Horguín, whom the police killed at the community of Cayetano Germosén, in Moca.  The police version that the victims had died in a shootout was publicly rebutted by the televised broadcast of a video showing the three individuals as they were getting into a police vehicle handcuffed and under guard.  According to information presented to the IACHR, the agents responsible admitted to having executed them extrajudicially in revenge for the death of a colleague whom they believed had been murdered by the three individuals after an attempted robbery the same day.  In response to the public outcry, six agents were detained and prosecuted by a police tribunal; four were acquitted, and the other two were sentenced to two years imprisonment.  The conviction was later quashed when the judge ruled that they had acted in self-defense.[31]

33.             Prior to the ruling of the military tribunal in second instance, the nongovernmental organization Fundación Institucionalidad y Justicia (FINJUS) had mentioned the need for that case to transferred to the ordinary jurisdiction since the police tribunals only heard disciplinary matters.[32]  FINJUS said that the police should not judge themselves, since they would be judge and party at once.  Police tribunals seriously violate the principle of impartiality, given the hierarchical relations and ties of loyalty within the institution.  Some government authorities, such as the Commissioner for the Reform and Modernization of the Justice System have publicly endorsed this position.[33]

34.             In its reply, the Dominican State said that “there are no known cases of forced disappearance.”  Indeed, it is important to mention that the Commission has not received complaints regarding cases of forced disappearances during the period covered by the instant report; further, various sources and human rights organizations all mention that there have been no forced disappearances.  However, the IACHR has also not received information from the Government about the status of the criminal investigation in the case of the teacher and journalist, Narciso González, who disappeared on May 26, 1994.[34]  The Commission notes its concern at the lack of any progress that might make it possible finally to solve the case, identify those responsible, clarify the fate of Mr. Narciso González, and make the necessary reparations.

35.             In its 1999 report, the Commission also recommended to the Dominican State that it suspend, on a preventive basis, any security agent involved in alleged violations of the right to life, while the complaints lodged were investigated, and that it create a program aimed at training police and military agents.[35]         Toward the end of 1999, the Commission was informed about the weeding out process implemented by the Police, in which 2,300 members of the police service were discharged and a large number of officers were investigated for complaints of excessive use of force. However, the Inter-American Commission later received information that people with prior criminal records were incorporated into the police ranks, using false names and identification, or with recommendations from other institutions.[36]

36.             The Commission was informed about the drive launched by the then-Chief of the National Police, General Pedro de Jesús Candelier, to clean up the institution and to provide training to its agents on respect for human rights.  General Candelier said in June 2000 that he had dismissed eighty-four policemen for various reasons, including drug use.  He also said that another 100 members of the police were receiving training; 200 had been disarmed as a result of their inappropriate behavior toward civilians. Lastly, 12,000 had been evaluated by a Special Commission to which officers had to demonstrate their capacity to return to service.  However, according to the National Commission on Human Rights, only 47 police agents were discharged and the weeding out process was interrupted. Furthermore, the investigations were also halted.[37]

37.             Among its recommendations on the right to life, humane treatment, and personal liberty, the IACHR recommended the creation of a program aimed at training the police and military agents so that, in the context of their functions and obligations, they may respect human rights and be informed adequately of the criminal liability that arises from acting outside the law.[38]

38.             In this respect, the Dominican State mentions in its reply that it has adopted as a basic priority the professionalization and training of members of the Armed forces and of the National Police and, in that connection, reports on the adoption of two initiatives: the first concerns the Police Restructuring Bill, and the second the Human Rights Institute of the Armed Forces.

National Police Restructuring Bill

39.             According to the information presented by the Dominican State in November 2001, the aim of the Police Restructuring Bill is to transform this institution into the fundamental instrument to uphold the rule of law.  The State says that the aforesaid project is being examined in the Chamber of Deputies. The foregoing has led to many disagreements and proposed modifications, as a result of which public meetings have been held to discuss the bill, with a view to ensuring its prompt adoption.

40.             The State indicates that among the changes proposed by the bill is the creation of the Superior Police Council, which will be composed of the Minister of the Interior and Police, the Attorney General of the Republic, the National Director of the Police, and other officials.  This Council will be the authority that decides which cases should be heard by the ordinary courts and which by the police tribunals.  Further, in investigations of “delicate cases”, under the legal framework proposed there must always be a representative of civil society in attendance at the Council.  The Commission observes with great concern that the proposed modification attributes to the Police Council a judicial competence that should not properly vest in an administrative organ. In this respect, the Commission has indicated time and again that the State agents accused of human rights violations should be brought before the regular courts.

41.             The State mentions that another important change proposed in the bill is that “the ordinary courts will have jurisdiction over cases of police excesses.”  The Commission notes that this would appear to clash with the modification noted in the previous paragraph.  According to the reply of the State, the bill provides for the creation of Community Policing, which would involve the community in identification and solution of their problems.[39]

42.             The State further mentions that the Attorney General’s Office has managed, by applying laws already in force, to enable the ordinary courts intervene in opposing unfair decisions by police tribunals.  The Attorney General’s Office sought the possibility of filing a writ of cassation in the interests of the law and for abuse of power, against judgments of police tribunals or to submit police agents to the ordinary courts, as in the case of the recent riots in the Capotillo area.  In May 2001, two people were killed during demonstrations held in the Capotillo area to protest against the Director of Police, General Pedro de Jesús Candelier.  The Commission has received no information about the results of the investigations.

Human Rights Institute of the Armed Forces

43.             In its reply to the recommendations of the IACHR, the Dominican State reported that by decree of August 18, 2000 the Executive Branch created the Military Institute of Human Rights, so that the military institutions might embark on efforts to provide guidance in this area to their members.  Among the objectives of the Military Institute are the following: to create training and education programs and projects; and to organize training courses, workshop seminars, and fora on constitutional and international provisions relating to human rights, in order to foster the principles of human rights in the Armed Forces.

44.             Without prejudice to the efforts made by the Dominican State as regards the presentation of bills to create training programs on respect for human rights for agents of the security forces, the Commission hopes that these initiatives are implemented in the near future so that Dominican citizens may have a security force that provides genuine protection for their fundamental guarantees.

45.             The Commission notes with concern that extrajudicial executions committed by agents of the security forces increased in the period covered by this follow-up report. The Commission also notes with concern complaints of summary executions of prisoners in prisons, while under the custody of State agents, as well as the failure on the part of the State to investigate and punish such acts.  The Commission has reiterated that no violation of human rights perpetrated by State agents must go unpunished and that the failure to carry out an investigation, make reparations, and punish those responsible gives rise to the international responsibility of the State.  Finally, the Commission deplores the existence of a police tribunal that passes judgment on misdemeanors and offenses committed by its members, which violates the right to equal protection enshrined in the American Convention on Human Rights.

V.      RIGHT TO HUMANE TREATMENT

46.             In its 1999 Report on the Situation of Human Rights in the Dominican Republic, the Commission mentioned its grave concern over the allegations of torture and inhumane treatment in the country. The IACHR said that 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. In consequence of the foregoing, the Inter-American Commission recommended that the Dominican state 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.[40] 

47.             In its reply to the recommendations of the IACHR, the Dominican State merely says in a general way, the following: “A decline has been observed in the physical mistreatment of detainees on police premises”.[41]  With respect to investigations of acts that violate the right to humane treatment committed by agents of the security forces, the State mentions a “significant increase of members of the State security forces submitted to the ordinary courts.”[42]  Unfortunately, the reply of the Dominican State does not permit the IACHR to gauge to what extent its recommendations have been carried out, since none of the agents punished is singled out or named, neither are the reasons mentioned for their transfer to the ordinary jurisdiction, and, finally, nor are the punishments imposed on the agents mentioned.

48.             Further, human rights groups say there continue to be complaints of mistreatment.  The National Police continues to be accused of mistreating and torturing prisoners while in detention.  At Rafey prison in Santiago, a group of twelve inmates were beaten by prison guards.[43]  According to nongovernmental organizations such as the National Commission on Human Rights and Pastoral Penitenciaria, this is not an isolated incident, on the contrary, it is something that occurs in almost every prison in the country.  Human rights organizations underscore the need for severe punishment and say that it is not enough to transfer the police agents, since other, more effective measures are needed to prevent acts of this nature from continuing.[44]

49.             One example of such complaints of torture and mistreatment is the case of the inmate Víctor Moreta. He was accused of the murder of Second Lieutenant Antonio Benítez Medina and gave himself up to the police; Mr. Moreta reported that he was tortured at the facilities of the Homicide Department.  Those charges were denied by the Chief of Police, Pedro de Jesús Candelier, who said that the prisoner was in a nervous state because of the crime in which he was involved.[45] 

50.             The Inter-American Commission has reiterated that officials accused of violations, such as torture and extrajudicial executions must be tried by the ordinary courts. Such acts are not misdemeanors that give rise to disciplinary measures; they are common crimes that must be duly punished. This position has been shared by different agencies in the country.  The Public Prosecutor for the National District mentioned “the need to punish those responsible when an abuse of authority occurs,”  and that “that proceeding must be before the ordinary courts.”[46]

51.             In that connection, the Commission has said also that no violation of human rights perpetrated by State agents must go unpunished and that the failure to carry out an investigation, make reparations, and punish those responsible gives rise to the international responsibility of the State.

VI.      RIGHT TO PERSONAL LIBERTY

52.             In its 1999 Report on the Situation of Human Rights in the Dominican Republic, the Commission recommended 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. The Commission said in particular that massive and indiscriminate methods, such as the roundups, should become a thing of the past.  It further mentioned that Intervening to maintain public order in the case of protest demonstrations or disturbances should be done without recurring to force, unless absolutely necessary. 

53.             In its reply to the recommendations of the Commission, the Dominican State said that, “[w]hile they have not disappeared, illegal roundups have diminished dramatically, and are carried out with greater respect for human rights.”  The Commission notes with concern the police practice of carrying out indiscriminate and violent round-ups.  These illegal practices violate the right to humane treatment and personal liberty of Dominican citizens. In these roundups the police arrest large numbers of people in peri-urban areas of the city without a warrant from a competent authority and without those people breaking the law at the time of arrest. Once detained they are taken to prisons and they may stay there beyond the 48-hour limit prescribed in the Constitution without being brought before a competent authority or formally charged.[47]

54.             Indiscriminate roundups have been rejected by the various community-based organizations in low-income areas of Santo Domingo, since they affect people who are on their way to work or simply passing through the sector, but not the real criminals. These organizations say that roundups should be selective; in other words, they should take account of the identity of each person and their possible link to any crime.  According to complaints received, the practice of roundups does not effectively help to fight crime, since in the search for a few criminals the fundamental right to liberty of large numbers of people is violated.

55.             According to international organizations, in September 2000, the police carried out a series of roundups in which 150 to 200 people were detained and taken to La Victoria and Najayo prisons, where they remained for more than thirteen days without any investigation being initiated.[48] A writ of habeas corpus was filed by members of the National Commission on Human Rights with the Eighth Criminal Court for the National District, which, after four days without receiving a reply regarding the legality of the detentions from the authorities responsible, summoned the Chief of Police, Gemerañ Camdeñoer. in order to explain the motives and circumstances of the detention of the people concerned. According to the information received by the Commission, the Chief of Police refused to appear. This refusal was publicly supported by high-ranking officials, who considered that those measures were designed to restore citizen security and were not violating any fundamental rights. This position made it impossible for the Judiciary to effectively control the abuses committed by the Police in the exercise of their functions.[49]  The Commission deplores the attitude of contempt by the Chief of Police and observes with concern that this attitude fosters impunity for the human rights violations committed by security agents.  The Commission urges the Government authorities to support the decisions of judges so as to guarantee the rule of law in the Dominican Republic.

56.             Another situation that causes serious concern to the Commission, with respect to the right to personal liberty, is the high percentage of prisoners in preventive detention.[50]  In its 1999 report, the Commission mentioned that the high rate of prisoners in preventive detention in the Dominican Republic 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.  The Commission urged the Dominican authorities to take the necessary measures to guarantee that persons held in preventive detention could be brought before a judge, or to release them while the judicial proceeding continued.

57.             One example of this situation is the case of Mr. Hoguisten Canjí, a citizen of Haitian origin, who was released at the beginning of 2000 after spending nine years in La Victoria National Prison. There was no file on his case. Mr. Canjí had been arrested in order to be investigated in connection with a murder. The Public Defender’s Office of the Commissioner for the Reform and Modernization of the Justice System came across his case and took charge of it. The only information found was a summons from a preliminary investigations judge dated November 11, 1991; the case file never appeared, nor did the name of the person whom Mr. Canjí allegedly murdered.[51]

58.             With regard to the foregoing, the Dominican State informed the IACHR that the Commissioner for the Reform and Modernization of the Justice System had set up a new body of agents for the protection of prisoners held in the various prisons in the country.  These Public Advisers carry out operations in prisons to help prisoners find their case files and to provide advice to them during the judicial proceedings.  For that purpose they have a permanent office in the Palace of Justice in Santo Domingo.  The also have a permanent office in the Palacio de la Policía, and try to be present at the interrogations of detainees and avert possible abuses on the part of the police. [52]  The Government also mentioned that both prison parole and habeas corpus were being applied with greater frequency.[53]