NEW DOMINICAN CODE AMENDS EXTRADITION PROCESS

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
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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
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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
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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
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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