Jaime Fernández Lazala, a Dominican lawyer and politician, wrote in an opinion column published by Diario Libre that pretrial detention has become the rule rather than the exception in the Dominican Republic, arguing that the practice now violates the country's constitution.
He said 65 percent of the roughly 19,800 people currently held across the country's 42 detention centers are pretrial detainees, a proportion he said has turned preventive coercion into standard practice and put the Public Ministry, the country's public prosecution service, in breach of due process.
Only 9,800 of those deprived of liberty are being held under final and irrevocable rulings issued by the ordinary courts, he wrote, a figure he said represents 35 percent of cases that have already been decided.
What the constitution requires
Fernández Lazala based his argument on Article 40, numeral 9, of the Dominican constitution, which states that coercive measures restricting personal liberty are exceptional in nature. Under that provision, he said, detention before trial should only be applied when the accused has no fixed ties to the community, known in Dominican law as arraigo, and when there is sufficient evidence against them.
He also warned that the country's new Penal Code, which created hundreds of new crimes and offenses, is likely to push the number of pretrial detainees higher still.
Cases where he says detention is justified
According to the columnist, jailing a suspect before trial should be limited to cases in which the harm done cannot be undone through reparation. He pointed to crimes against minors and gender-based violence as examples, saying it is very difficult for victims and their families to obtain compensation in those circumstances.
He took a different view of administrative corruption cases, which carry a 20-year statute of limitations under Dominican law. Detaining suspects accused of prevarication or bribery before trial is an abuse, he wrote, arguing that economic bail and the forfeiture of stolen assets, a mechanism known in the Dominican Republic as extinción de dominio, would be the correct response instead.
Criticism of prosecutors and the courts
Fernández Lazala said the Supreme Court of Justice, the country's highest ordinary court, and the Attorney General's Office owe Dominican citizens an explanation. He accused both institutions of indifference toward corruption inside the justice system, saying they have failed to enforce rules and regulations governing how judges and prosecutors handle criminal and civil cases.
He said the Council of the Judiciary, the body that oversees the administration of the courts, should keep a record of individual judges' performance. He further accused the Public Ministry of moving quickly to label cases as complex when doing so serves its own interests, while being slow to respect the constitutional requirement that pretrial detention remain exceptional.
Calls for the Constitutional Court to intervene
He called on the Ombudsman's office and Rodolfo Valentín Santos, director of the Public Defense Office, the agency that provides legal representation to defendants who cannot afford a lawyer, to demand that the Public Ministry submit to constitutional limits and abandon what he called a history of inquisitorial, illegal and unjust prosecutions lacking evidence.
Fernández Lazala also said the Constitutional Court should use its power of diffuse review of unconstitutionality, whether applied directly or in the abstract, to issue a binding ruling ordering the Public Ministry to stop delaying criminal proceedings through the routine use of pretrial detention. He said the practice drains public funds and overcrowds the country's detention centers with prisoners awaiting trial.
