THE RIGHT TO HUMANE TREATMENT IN THE DOMINICAN REPUBLIC
A. Legal provisions
167. Inhumane treatment and torture are prohibited in the Dominican Republic. Article 8(1) of the Constitution states that "in no case shall torture or any other abusive penalty or procedure or any other penalty or procedure that entails the loss or diminution of the physical integrity or health of the individual be established, meted out, or applied."
168. In addition, on January 27, 1997, Law No. 24-97 was promulgated, modifying various articles of the Criminal Code, among them Article 303, which now indicates:
Any act performed as a method of criminal investigation, means of intimidation, bodily punishment, preventive measure, criminal sanction, or any other that causes physical or mental harm or suffering constitutes torture or a barbaric act. Also classified as torture or barbaric act shall be the application of substances or methods aimed at obliterating the personality or will of persons or diminishing their physical or mental capacity, even when they do not cause physical pain or mental suffering.63
169. The same law establishes that the act of subjecting a person to torture or barbaric acts is punishable by 10 to 15 years imprisonment, and up to 30 years when concurring with other circumstances, such as when perpetrated against children, the elderly, the sick, persons with disabilities, and pregnant women, among others.64
170. Internationally, the Dominican state is under an obligation to protect the right to humane treatment, as it is a party to the American Convention, which guarantees this right at Article 5 in the following terms:
Every person has the right to have his physical, mental, and moral integrity respected. No one shall be submitted to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.65
171. The Commission has noted on prior occasions that the prohibition on torture or cruel, inhuman, or degrading punishments is absolute. The terms of Article 5 cannot be derogated under any circumstance, as spelled out in Article 27 of the American Convention.66 The Dominican Republic has also ratified the Inter-American Convention to Prevent and Punish Torture, on January 29, 1987, which understands torture to consist of:
any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.
172. The Dominican Republic has also signed, but has yet to ratify, the U.N. Convention against Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment on February 4, 1985, but it has yet to be ratified.
B. Torture and inhumane treatment
173. Even though the present Government reported efforts to eliminate the practice of torture and other cruel, inhuman, and degrading treatment, the Commission has received allegations of this practice, which occurs, in particular, during the phase of the investigation carried out by agents of the National Police and the National Directorate for Drug Control (DNCD),67 as a method of extracting confessions. Furthermore, this practice, exercised by agents of the security forces, also reflects an attitude based on disregard for citizens' guarantees and the lack of adequate training with respect to human rights.
174. In December 1996, the Attorney General of the Republic, Mr. Abel Rodríguez del Orbe, who was designated on August 16, 1996, denounced that persons under investigation were tortured at the headquarters of the DNCD and asked the director of that executive agency to suspend such practices, which are violative of human rights.68
a. Torture and inhumane treatment during detention
175. During its on-site visit, the Commission was informed of police procedures by which severe beatings are inflicted on detainees. The persons allegedly guilty of misdemeanors who fall into the hands of the authorities are frequently subjected to violent detention and interrogation procedures carried out by the authorities who carry out the roundup operations.69 In addition to the different complaints from civil society, the Government itself has acknowledged that the authorities commit such violations. Attorney General Rodríguez del Orbe, when asked if "the Police tortured detainees," answered, "You know the answer is yes, that there is also torture, and that detainees are beaten with sticks, and we have to bring an end to that...."70 The statements by the Attorney General were made during his announcement regarding the instructions given to the DNCD to refrain from the use of torture.
176. The public acknowledgment by the Government of the Dominican Republic that the security agencies subject detainees to torture in their offices is of great value. This indicates the state's intent to put an end to torture. Nonetheless, despite this acknowledgment, the situation has not improved significantly.
177. The Commission has continued to receive allegations of violations of the right to physical and mental integrity in the Dominican Republic. To cite one worrisome example, the IACHR was told of the case of eight persons who were severely beaten by police agents while protesting measures announced by CODETEL, a private communications company. These grave events occurred on June 12, 1997, and among the persons beaten and injured by the pellets are social movement leaders Virtudes Alvarez and Orlando González, of the Movimiento Independencia Unidad y Cambio (MIUCA); Juan Núñez, leader of the Central Unitaria de Trabajadores (CUT); Alberto Padilla, Coordinator of the Centro para la Infancia; Wagner Aquino, leader of the Frente Estudiantil Flavio Suero (FEFLAS), and Aracelis Penson, leader of the Junta de Barrios Populares (JUNTAPO).71
b. Torture and inhumane treatment in the prisons
178. The Dominican prison system suffers from serious failings in its operation; the most controversial is abuse of inmates. The inmates in the Dominican prisoners and their family members make constant complaints regarding torture and other cruel, inhuman, or degrading punishment or treatment to which the prisoners are subjected by the authorities.72
179. During the 1997 riots in different prisons of the country, the prisoners made known their protests over the conditions of detention, and denounced the abuses to which they are subjected. In the context of its on-site observation, the Commission visited several prisons and had the opportunity to speak in private with several prisoners about their situation. The Commission received complaints from civil society organizations indicating that "the only response the prisoners get from the prison authorities is abuse and repression through illegal solitary confinement for all those who protest over the poor conditions to which they are subjected."73
180. During the visit of the IACHR to the Dominican Republic, it received information regarding the hunger strike in the Azua prison, which occurred in May 1997. The 500 prisoners in the Azua prison, in a letter to the media, demanded the removal of the prison director, and denounced the physical abuse of which they were victims.74 In subsequent occurrences, the prisoners rioted and attempted a massive escape, in which several prisoners were killed. The motives for the uprising include allegations of physical abuse of the inmates by the guards who kept watch over them. The Comisión Nacional de los Derechos Humanos noted to the IACHR the complaints of mistreatment and beatings to which the prisoners at Azúa were subjected by Col. Aguedo Abreu.75
C. Impunity for the acts committed by security agents
181. With respect to impunity, the Commission has noted: "Failure to impose the appropriate penalties on persons or public employees who refuse to cooperate in the criminal proceedings must be taken as an expression of judicial negligence, the effect of which is to protect the authors of acts of torture. It also means failure by [the State] to fulfil its obligation to ensure the free and full exercise of judicial rights and judicial protection to the persons within its jurisdiction."76
182. The Commission also notes that once an act of torture has occurred, the state has the international obligation to take effective measures to investigate and punish the persons responsible for such acts, as well as those responsible for cruel, inhumane, or degrading treatment that takes place within its jurisdiction.77 The fact that a state has a law that severely punishes acts of torture does not constitute, per se, a sufficient guarantee that it will comply with its international obligation to take effective measures to sanction such acts. It is necessary for the state to ensure the punishment of persons responsible for acts of torture.78
183. As regards the practice of torture and other types of abusive and degrading treatment in the Dominican Republic, the shortcomings in training, supervision, and control of the National Police and other executive agencies in the custody phase for the purposes of the preliminary questioning of detainees, make it possible for such inexcusable procedures to be applied.79
184. On those few occasions when cases of torture and abuse are denounced, they are investigated by a police, military, or mixed Board or Commission, and tried and decided before the police or military jurisdiction. The disciplinary sanctions applied are generally benign and are not proportionate to the crimes committed. These sanctions are limited to arrests for short periods in the very offices of the body to which the accused belongs. On an exceptional basis, when public opinion identifies and succeeds in calling sustained attention to the allegation of torture or abuse, the subaltern personnel implicated in the acts of torture are separated from the institution.80
185. Even though the Government of the Dominican Republic has begun to take measures to educate the personnel in respect for the rights of detainees at the time they are apprehended, and when they are subjected to examination, the authorities do not show that it has taken decisive action to ensure that these abuses committed by its security agents cease. Nor does the Commission have any knowledge of cases in which the state has given torture victims reparation that includes compensation and rehabilitation.
CONCLUSIONS AND RECOMMENDATIONS
186. The Commission notes its grave concern over the allegations of torture and inhumane treatment in the Dominican Republic. 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.
187. The Commission recommends 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. The Commission notes that no violation of human rights perpetrated by state agents should remain in impunity, and that the failure to investigate, make reparations, and punish those responsible gives rise to the international responsibility of the state.
188. The Commission recommends to the Dominican state that it adopt the necessary measures to guarantee the preventive suspension of the security agents involved in the alleged violations of the right to humane treatment, while the allegations presented are investigated.
189. In addition, the Commission recommends to the Dominican state that it create a program, endowed with the necessary resources, to train the police and military agents so that they come to respect human rights fully, within their functions and obligations, and are carefully instructed as regards the criminal liability that attaches to acting outside the law.
63 Article 1 of Law 24-27, which amends Article 303 of the Criminal Code.
64 Id., Article 303, sections 1 to 11.
65 The complete text of Article 5 provides as follows:
1. Every person has the right to have his physical, mental, and moral integrity respected.
2. No one shall be submitted to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.
3. Punishment shall not be extended to any person other than the criminal.
4. Accused persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall be subject to separate treatment appropriate to their status as persons who have not been convicted.
5. Minors while subject to criminal proceedings shall be separated from adults and brought before specialized tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors.
6. Punishments consisting of deprivation of liberty shall have as an essential aim the reform and social eadaptation of the prisoners.
66 See Report on the Situation of Human Rights in Ecuador, pp. 46 ff.
67 Fundación Institucionalidad y Justicia.
69 Report by the Comisión Nacional de Derechos Humanos.
70 Fundación Institucionalidad y Justicia. See also the statements to the Diario Listín of January 4, 1997.
71 Report by the Comisión Nacional de Derechos Humanos.
72 Comisión Nacional de Derechos Humanos and Fundación Institucionalidad y Justicia.
73 Comisión Nacional de Derechos Humanos.
74 Letter presented to the daily newspaper El Nacional, May 23, 1997.
75 Report by the Comisión Nacional de los Derechos Humanos, p. 11.
76 Report on the Situation of Human Rights in Mexico, OEA/Ser.L/V/II.100, doc. 7, rev. 1, September 24, 1998, p. 74.
77 Inter-American Convention to Prevent and Punish Torture, Article 6.
78 Report on the Situation of Human Rights in Mexico, p. 74.
79 79 Fundación Institucionalidad y Justicia.