Arrest of a U.S. Citizen
Summary of Criminal Procedures in the Dominican Republic
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.
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