DOMINICAN REPUBLIC: EXTRADITION TREATY ASSAILED BY

UNCLAS SANTO DOMINGO 001350

SIPDIS

SENSITIVE
SIPDIS

DEPARTMENT FOR WHA/CAR SEARBY, L/LEI FOR TORRES AND MUELLER
DEPARTMENT OF JUSTICE FOR CRIM/OIA ORJALES AND ESTABROOK
US MARSHAL SERVICE PLEASE PASS TO CHRIS DUDLEY
DEA FOR OF,OFI,DO,DCO

E.O. 12958: N/A
TAGS: CJAN SNAR KCRM DR
SUBJECT: DOMINICAN REPUBLIC: EXTRADITION TREATY ASSAILED BY
NARCO-ATTORNEYS AND TABLOID PRESS


1. Over the last two weeks, sensationalist tabloid "El
Nacional" has attacked the United States for purported
violations of the 1910 U.S.-Dominican Extradition Treaty.
According to sources cited by "El Nacional," U.S. extradition
requests for individuals whose alleged crimes are punishable
by sentences exceeding 30 years violate an explicit treaty
provision capping sentences for returned fugitives.


2. A simple reading of the treaty quickly reveals this to be
a lie; the treaty contains no sentencing language.
Accordingly, one must inquire into "El Nacional,s" motives
for persisting with this story.

--------------
Captured by Narco-Attorneys?
--------------


3. On Monday, April 10, "El Nacional" published an article
quoting legal "experts" who reiterated that the United States
was violating the bilateral extradition treaty. The attorneys
quoted in this piece were Domingo Rojas Ninas, High
Commissioner for the National Commission on Human Rights and
former attorney for narco-trafficker Franklyn Franco and
Felix Damian Olivares, principal attorney for extradited
narco-trafficker Quirino Paulino Castillo.


4. Why the reliance on "experts" linked to
nacro-trafficking, especially Olivares, who was repeatedly
cited by that paper throughout 2005 as an expert critic in
extradition matters? Some Embassy contacts in various
Dominican media and legal circles suggest an unholy alliance
that permits extradition attorneys to fight for their clients
publicly while the paper's editor is provided ammunition for
his personal leftist/nationalist agenda. A Rojas quote from
2005 suggests nationalism is equally in play, or at least
part of a nacro-attorney media strategy: "que cuando un
dominicano es acusado en el extranjero de cometer un crimen o
delito y se encontrase en la Republica Dominicana puede ser
juzgado por los tribunales dominicanos". ("When a Dominican
is accused overseas of committing a crime and is discovered
in the Dominican Republic he can be judged by Dominican
tribunals.")


5. While this is technically true, Rojas should already know
that common practice in international law is to prioritize
conflicts in jurisdiction based on an aggregate balance of
factors, including: treaty requirements, locus of crime,
nationality of perpetrator, nationality of victim,
convenience to parties and witnesses, and the availability of
evidence. (See, e.g., The Princeton Principles on Universal
Jurisdiction (2001)). When the United States desires
prosecution for a Dominican citizen who committed a crime
within U.S. territorial boundaries, the balance clearly
favors the United States.

--------------
A Constant Critic
--------------


6. Detached observation should prepare the reader for
attacks such as these from the pages of "El Nacional." The
paper's editorial policy, set by an "old guard" leftist
radicalized by the U.S. intervention of 1965, is one of
vehement anti-Americanism, exemplified by past pieces
rejecting CAFTA-DR ("more thorns than flowers"),U.S.
military presence in the Dominican Republic (suggesting New
Horizons exercise is U.S. attempt to built "secret" military
base),the Iraq war ("genocidal"),and the extradition of
Paulino ("a defeat for the government and for justice"),
while supporting both Cuba and Venezuela (criticizing major
party leaders for speaking with "anti-Venezuelan
conspirators" and "enemies of Venezuela").

--------------
The Fallout
--------------


7. What, then, is the impact of this criticism for the
future of U.S. extradition in the Dominican Republic? The
Embassy notes that none of our law enforcement contacts,
whether in specialized agencies or in the Office of the
Attorney General, have suggested that this is a "real" issue
for the Dominican government.


8. This fact, combined with repeated, spirited defense of
the Treaty by Acting Attorney General Rodolfo Espineira,
leads the Embassy to conclude that there is little threat of
negotiated plea agreements being foisted on U.S. prosecutors
as a precondition to a fugitive's extradition, at least in
the near term.


9. On April 20 presidential legal advisor Cesar Pina
Torribio was enticed by journalists into commenting that the
extradition treaty should be amended specifically to bar
capital punishment of Dominican citizens, in conformity with
the Dominican Constitution -- but, he added, some of the
current proposals in Congress for amendment of the Penal Code
call for capital punishment for offenses such as rape of a
minor.

-------------- --------------
Future Legal Challenges and Potential Difficulties
-------------- --------------


10. While the treaty is clearly not implicated and there is
little danger of a significant change in law or practice in
the near term, the Embassy would still highlight legal
challenges to extradition that may arise in the coming years.

30 year maximum
- - - - - - - -


11. In regard to maximum sentences, the Dominican
Constitution, while silent on actual terms, may be
interpreted as prohibiting sentences in excess of 30 years
(the maximum set under Article 7 of the Penal Code) based on
language contained in Article VIII, section 1, barring
sentences that impose death, torture, and "any other penalty
or vexatious procedure or that would implicate the loss or
diminution of physical integrity or health of the
individual." The logical argument to make based on that
interpretation would be that extradition of subjects facing
terms in excess of 30 years would violate the Dominican
Constitution.


12. It doesn't appear that there is much support for this
argument, as domestic legislation (Law 489-69, modified by
Law 278-89) simply establishes that the Presidential
authorization for extradition should contain a statement that
authorities should not impose a sentence above the Dominican
30 year maximum. The United States does not interpret the
language as mandatory. And it does not always appear -- it
was not contained in the presidential authorization of the
recently returned fugitive Juan Rincon Concepcion

Death Penalty
- - - - - - -


13. What was present in that authorization, however, was a
boilerplate language explicitly attempting to bar application
of the death penalty ("bajo ninguna circunstancia se le
impondra la pena de muerte" -- "in no circumstances will the
death penalty be imposed on the subject"). As the Dominican
Constitution prohibits imposition of the death penalty and
current Dominican practice attempts to exclude its imposition
for those extradited, the Embassy predicts future
difficulties for extradition requests for crimes possibly
punishable by death sentences upon conviction. The Embassy
maintains this position even as polling conducted by the
Gallup organization and local daily "Hoy" demonstrates that
67 percent of Dominicans favor imposition of the death
penalty for convicted child rapists.

--------------

Conclusion
--------------


14. While the immediate fallout of "El Nacional,s" biased
attacks against extradition and the bilateral treaty are
certain to have no meaningful impact, significant underlying
issues still exist in cases involving the death penalty.
Support for Dominican fugitives, the vast majority of whom
are involved in narco-trafficking, is slight, and without a
significant change in public support there will be little
pressure to link extradition to sentencing guarantees.


15. Drafted by Michael Garuckis.


16. This piece and others can be consulted at our SIPRNET
web site (http://www.state.sgov.gov/p/wha/santodomingo) along
with extensive other material.
HERTELL