US embassy cable - 04SANTODOMINGO5858

UNCLAS SECTION 01 OF 03 SANTO DOMINGO 005858 
 
SIPDIS 
 
STATE FOR WHA/CAR (MCISAAC) AND L/LEI (TAYLOR AND FUENTES); 
JUSTICE FOR MAZUREK, ORJALES, SOKHOL; 
US MARSHALS PLEASE PASS TO C. DUDLEY 
 
E.O. 12958: N/A 
TAGS: CJAN, KJUS, PGOV, DR 
SUBJECT: NEW DOMINICAN CODE AMENDS EXTRADITION PROCESS 
 
 
1.  Summary.  The Dominican Republic implemented a new 
criminal procedural code on September 27, 2004 which moves 
the Dominican criminal justice system from an inquisitorial 
system towards an accusatory system.  The new code amends the 
procedure for handling extradition cases.  The USG has 
requested the extradition of three fugitives since the 
enactment of the new statute.  Since none of those fugitives 
has been located,  the new code's provisions have not yet 
been tested.  Possible procedural scenarios under the new 
code are presented below.  Emboffs will continue to meet with 
Dominican counterparts to discuss the new procedures and 
attempt to determine how they will be applied.   End Summary. 
 
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Background 
---------- 
 
2.  (U)  The United States and the Dominican Republic entered 
into a bilateral extradition treaty in 1910.  No extraditions 
took place under the treaty until the Dominican Republic 
passed implementing legislation in 1997.  Extraditions to the 
United States began in 1998 and since that time there have 
been more than 80 fugitives returned to various U.S. 
jurisdictions to stand trial or serve sentences. 
 
3.  (U)  On September 27, 2004, a new Dominican criminal 
procedural code went into effect.  The code moves the 
Dominican Republic away from a French based inquisitorial 
system toward an accusatorial or adversarial system similar 
to that used in the United States.  The new criminal 
procedural code changes how extradition cases will be treated 
in the Dominican Republic. 
 
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Old System 
------------ 
 
4.  (U)  The extradition system in place from 1997 through 
September 2004 placed the burden on the executive branch of 
the GODR to handle most extradition related requests.  The 
process in a successful extradition case was as follows: 
 
A.  The USG delivered a formal diplomatic note with the 
authenticated extradition package to the Foreign Ministry and 
sent a courtesy copy to the Attorney General's office. 
 
B.  The Foreign Ministry delivered the information to the 
Attorney General's office and authorized the Attorney General 
to proceed. 
 
C.  The Attorney General's office evaluated the request and, 
if it was determined to be a valid request, issued a 
provisional arrest warrant for the fugitive who was the 
subject of the request. 
 
D.  The Attorney General's office delivered the provisional 
arrest warrant to the National Directorate for Drug Control 
(DNCD). 
 
E.  The DNCD, with guidance and assistance from the U.S. 
Marshals, located the fugitive in the Dominican Republic. 
 
F.  The fugitive was placed in a cell in Najayo prison.  (The 
USG helped finance these cells to hold fugitives subject to 
extradition requests.) 
 
G.  The fugitive was interrogated for the first time by an 
assistant attorney general. 
 
H.  The fugitive was interrogated for the second time by an 
assistant attorney general. 
 
I.  The Attorney General's office issued a recommendation to 
extradite the fugitive. 
 
J.  The Attorney General's office forwarded its 
recommendation to the Foreign Ministry (note: this step was 
sometimes skipped; if skipped, the recommendation was 
forwarded directly to the Legal Advisor to the President.) 
 
K.  The Foreign Ministry forwarded the Attorney General's 
recommendation to the Legal Advisor to the President. 
 
L.  The Legal Advisor to the President reviewed the case and 
the Attorney General's recommendation. 
 
M.  The Legal Advisor to the President prepared an 
extradition order for signature by the President. 
 
N.  The President signed the extradition order. 
 
O.  The order was delivered to the DNCD. 
 
P.  The DNCD delivered the fugitive to the U.S. Marshals at 
Las Americas airport and the fugitive was returned to the 
appropriate U.S. jurisdiction. 
 
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New system 
----------- 
 
5.  (U)  The new system has yet to be tested and there are a 
number of variables that may be interpreted in various 
manners.  Here are possible interpretations of the new system: 
 
 
A.  Steps A thorough I as under the old system (see above). 
 
B.  The Attorney General's office forwards its recommendation 
to the Criminal Chamber of the Supreme Court of Justice and 
requests a hearing date. 
 
C.  The Criminal Chamber of the Supreme Court sets a hearing 
date. 
 
D.  The Attorney General's office, the fugitive plus 
fugitive's counsel and a "representative" of the petitioning 
country appear and argue the case. 
 
(NOTE: The USG, as the representative of the petitioning 
country, could have a few           possible roles.  We could: 
 
VARIATION # 1 
a.  hire a Dominican Attorney to argue the merits of every 
case, 
 
VARIATION # 2 
b.  send an accredited diplomat to each hearing to certify 
that the documents submitted to the government to request the 
extradition of a fugitive speak for themselves and present no 
further argument, or 
 
VARIATION # 3 
c.  choose not to send a representative to the hearing and 
rely on the Attorney General's office to represent the 
interests of the USG. END NOTE.) 
 
E.  The Criminal Chamber of the Supreme Court will decide 
whether to authorize extradition of the fugitive. 
 
F.  If the Criminal Chamber of the Supreme Court decides to 
extradite, it would presumably issue a final judicial order 
and the fugitive would be escorted to the airport by drug 
enforcement officials (DNCD) and turned over to the U.S. 
Marshals for return to the United States. 
 
G.  If the Criminal Chamber of the Supreme Court decides not 
to extradite, presumably the fugitive would be released. 
 
 
6.  (SBU)  In preliminary meetings the Dominican assistant 
attorney general in charge of extraditions told poloff that 
the USG will be required to "hire a Dominican attorney on a 
contract basis to argue all the details of the case" 
(Variation # 1 above).  Poloff replied that the burden should 
remain on the Attorney General's office to represent the 
interests of the USG as contemplated in the treaty language. 
Poloff also raised the issue of reciprocity and noted that 
the Dominican government was not required to hire an attorney 
to represent its interests in extradition proceedings in the 
United States; the role of advocate for the Dominican 
government in the U.S. is filled by the Department of Justice 
through its assistant U.S. attorneys.  The assistant attorney 
general acknowledged the argument but told poloff,"We will 
have to wait to see how the Supreme Court interprets the new 
code." 
 
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Hypotheses under the new system 
------------------------------------ 
 
7.  (SBU)  Embassy Santo Domingo makes the following 
preliminary hypotheses about the extradition process under 
the new criminal procedural code: 
 
-  The extradition treaty contemplates a judicial order for 
extradition.  The new code is in line with the treaty 
conditions.  It is unlikely that an executive order will be 
sufficient to extradite a fugitive whose extradition was 
requested after the implementation of the new criminal 
procedural code (9/27/04). 
 
-  Those fugitives who choose not to challenge their 
respective requests for extradition may waive their hearings 
in front of the Criminal Chamber of the Supreme Court and 
voluntarily return to the United States.  The Criminal 
Chamber of the Supreme Court would still need to sign the 
extradition order. 
 
-  Assuming the fugitive is located, the  extradition process 
should move more quickly from the time a provisional arrest 
warrant is issued until the time of extradition from the 
Dominican Republic.  Built-in time limits in the criminal 
procedural code should expedite the process. 
 
-  The new process will decrease the number of fugitives who 
are returned to the United States over the next year.  After 
that, the legal tests and processes should be concluded and 
the system will be more efficient. 
 
-  The possibility exists that the Attorney General's office 
will place the majority of the burden for proving the case on 
the USG representative rather than vigorously arguing for 
extradition of any given fugitive. 
 
8.  (U)  Poloff has faxed the applicable portion of the new 
criminal procedural code to the Department of Justice/Office 
of International Affairs; Department of State WHA/CAR and 
L/LEI.  Emboffs will continue to meet with appropriate 
counterparts to discuss how they believe the new criminal 
procedural code provisions will affect the extradition 
process. 
 
9.  (U)  Drafted by Angela Kerwin. 
 
10.  (U)  This piece and others can be found at our SIPRNET 
site 
http://www.state.sgov.gov/p/wha/santodomingo/  along with 
extensive other material. 
HERTELL