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The following is a general and unofficial
summary of the judicial process in the Dominican Republic. This
document is not to be construed as legal advice. Specific questions
about Dominican law should be directed to competent Dominican
attorneys.
Introduction
Americans traveling in the Dominican Republic
are not protected by U.S. laws and constitutional rights. Rather,
Americans in the Dominican Republic are subject to the laws of the
Dominican Republic. The Consular Section cannot demand your
release, represent you at trial, or get you out of jail.
It is your responsibility to know the law in
the Dominican Republic. The judicial process in the Dominican
Republic differs from the process in the United States. The
judicial process can last up to several years, which may result in
lengthy pre-trial detainment in a Dominican prison.
First Phase – Arrest and Detention:
According to the Dominican Constitution, a person detained or
arrested by the police authorities may be held without charges for
up to 48 hours. During this 48-hour period, an assistant district
attorney (prosecutor) and the police conduct an initial
investigation of the case. Assistant district attorneys are present
at most police stations and have the responsibility to lead the
investigation.
Right to an Attorney: A detainee is
typically questioned as part of the investigation by the
authorities. According to Dominican law, a detainee is entitled to
have an attorney present during any questioning, as well as at any
of the hearings or trials. If the detainee cannot afford to have an
attorney, the government will provide a public defender upon
request. A detainee also has the right to remain silent.
Habeas Corpus: According to the
Constitution of the Dominican Republic, any prisoner detained for
more than 48 hours without being formally charged is entitled to
request a hearing of habeas corpus. Habeas corpus is
a physical release of an arrestee from prison while awaiting trial.
The presiding judge at the hearing is empowered to order the
prisoner’s release if he has been detained for more than 48 hours
without being formally charged or there is insufficient proof of a
crime to warrant further detention. The judge’s decision to release
is subject to appeal by the district attorney. A defendant released
on habeas corpus is required to remain in the country until
the charges are finally resolved.
District Attorney’s office: It is the
role of the Prosecutor to press charges based on the evidence. If
the prosecutor declines to press charges, typically due to
insufficient evidence, the detainee will be released. If the
Prosecutor determines there is sufficient evidence to press charges,
the case will proceed to the second phase in which an investigating
judge will make a further evaluation of the charges.
Second Phase – Investigating Judge:
The district attorney sends the case to a
coordinating judge, who will assign one of the “Jueces de
Instrucción” (investigating judges) to conduct a preliminary
investigation. The investigating judge will examine the preliminary
evidence presented by the district attorney. Based on this
evidence, the investigating judge then decides whether the detainee
should remain under police custody pending further investigation.
The judge has authority to order the detainee to remain in police
custody for a period between three months and one year. Although
the typical timeframe for pre-trial detainment is three months,
prosecutors may request additional time (up to one year total) to
prepare their case. The detainee can request a review of this
decision.
If the investigating judge determines that
there is insufficient evidence presented by the prosecutor, the
judge may also order the release of the detainee.
Should the judge determine that there is
sufficient evidence to detain an arrested individual pending trial,
the judge will set a date for a preliminary hearing typically within
three months to one year. A defendant may request bail at any time
during this process. In reviewing a bail request, the judge has
considerable discretion, but will consider the type of crime, the
defendant’s criminal history, and the risk of flight by the
defendant.
Third Phase - Preliminary Hearing:
At the preliminary hearing, the investigating
judge will hear evidence and make one of the following decisions:
1) “Auto de no ha lugar” – This
judgment signifies that there exists no grave, sufficient and
corroborating evidence of guilt against the detainee. Therefore the
detainee will be ordered released and the case closed, unless the
prosecutor appeals.
2) “Providencia Calificativa” –
This judgment is similar to an indictment. With this judgment, the
judge determines that grave, sufficient and corroborating evidence
exists of culpability against the detainee. The detainee remains in
custody, and the case is assigned to a First Instance Court.
Fourth Phase - First Instance Court:
A “Tribunal de Primera Instancia” (First Instance Court) is assigned
the case and this court must set a date for “conocimiento de fondo
del caso”, that is, to consider the case on its merits. The
prisoner is not required to take an oath, but must provide a name
and an address to the court stenographer. The interpreter must
swear to the accuracy of any interpretation, and all witnesses
testify under oath.
The trial generally proceeds in the following
sequence:
1. The judge questions the prisoner to see if the testimony
conforms to the statements in the documents. It is advisable for
the defendant to respond in a forthright and respectful manner to
all questions. The defendant has a right to remain silent.
2. The prosecuting attorney may direct questions to the
prisoner. The defendant has a right to remain silent.
3. The defense may ask further questions, call witnesses, and
present defense arguments.
4. The prosecuting attorney delivers a summation.
5. The trial is concluded and the defendant remains in custody
pending rendering of the sentence.
The First Instance Court will render a verdict
of guilt or innocence (not guilty). According to Dominican law,
trials are public and defendants have the right to present
contradictory evidence.
Although the new criminal procedures have expedited the process,
the process before the First Instance Court could last up to several
years. Numerous factors could delay the consideration of a case,
including delays in obtaining witness testimony, delays by attorneys
and complicated evidentiary or legal issues. During this time, a
defendant will likely remain incarcerated.
Fifth
Phase - Court of Appeals: If the defendant is found
guilty, the detainee has ten days to appeal the decision issued by
the First Instance Court. A finding of guilt can be appealed before
a “Corte de Apelación” (Court of Appeals) to overturn a guilty
verdict. The district attorney can also appeal a decision. The
district attorney usually appeals the First Instance Court decision
when it favors the detainee. If the case is appealed, the prisoner
is incarcerated until a hearing is set before a five-judge or
three-judge Court of Appeal.
Sixth Phase - Supreme Court: If
either party believes that the law has been incorrectly applied in
the lower courts, then the party may appeal to the Supreme Court.
As in the U.S., the Supreme Court decides only whether the law has
been correctly applied, and does not revisit the underlying facts of
the case.
If the Supreme Court determines that the law
has been correctly applied, the decision of the Court of Appeals
(Fifth Phase) stands. If the Supreme Court determines that the law
has been incorrectly applied, it sends the case to a different First
Instance Court so the case can be heard from the beginning.
Payment of Fines: Fines can be
paid at any time after the sentence is rendered and before the
release of the prisoner. The defense attorney pays the fine in the
“Sección de Multas” (Fines Section) in the Palace of Justice. At
the end of the sentence, the defense attorney takes a copy of the
receipt to the Fines Section where “the order of liberty” is typed.
The “order” must be approved and signed by the district attorney
(fiscal). The defense attorney presents the signed order of liberty
to the jail where the prisoner is being held. The prisoner is then
returned for final processing for release or deportation, during
which authorities return confiscated items to the released person.
Those defendants that cannot pay the fine may
request that it be waived. To obtain a waiver of the fine, the
defendant must show that he or she is insolvent. The waiver request
should be made before the court that last heard the case. Those who
cannot pay the fine are required to remain in jail for one day per
each peso of fine, up to maximum of two years. This is in addition
to the sentence imposed by the court.
Revised April, 2006 |
