Opinion; Subjects: DOMINICAN REPUBLIC, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.23-19934 (E) 250124 260124
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-seventh session,
28 August–1 September 2023
Opinion No. 46/2023 concerning Jean Alain Rodríguez Sánchez
(Dominican Republic)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251
and Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The Council most recently extended the mandate of the Working Group for a
three-year period in its resolution 51/8.
2.
In accordance with its methods of work, 1 on 5 May 2022 the Working Group
transmitted to the Government of the Dominican Republic a communication concerning Jean
Alain Rodríguez Sánchez. The Government submitted a late response on 3 August 2022. The
State is a party to the International Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or her
sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating to
the right to a fair trial, established in the Universal Declaration of Human Rights and in the
relevant international instruments accepted by the States concerned, is of such gravity as to
give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum-seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or remedy
(category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation, disability,
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2023/46
General Assembly
Distr.: General
27 October 2023
English
Original: Spanish
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or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
1.
Submissions
(a)
Communication from the source
4.
Jean Alain Rodríguez Sánchez is a national of the Dominican Republic, is 46 years
old, married and a lawyer by profession. He served as Counsel General of the Dominican
Republic. He is currently detained in the country’s Najayo prison.
(i)
Context
5.
Mr. Rodríguez Sánchez was appointed Counsel General of the Dominican Republic
in August 2016. In December of the same year, he ordered the opening of an investigation
into bribes worth US$92 million offered to Dominican officials by the Brazilian company
Odebrecht.
6.
In December 2016, Brazil, the United States of America and Switzerland signed an
agreement with Odebrecht whereby the company acknowledged having paid bribes in order
to be awarded works contracts in 12 countries, including the Dominican Republic. In January
2017, Mr. Rodríguez Sánchez, then Counsel General, reported that an investigation was being
opened.
7.
In February 2017, Mr. Rodríguez Sánchez signed a cooperation agreement with
Odebrecht, in which representatives of the company admitted to having paid US$92 million
in bribes to officials, and whereby they committed to pay US$184 million to the Dominican
Republic.
8.
On 29 May 2017, Mr. Rodríguez Sánchez presented the results of the investigation
and issued arrest warrants in respect of 14 individuals, including entrepreneurs, politicians,
officials and a lawyer. Among them were officials who at that time belonged to the
government party and officials who belonged to the opposition party.
9.
On 7 June 2017, 10 people implicated in the Odebrecht case in the Dominican
Republic were placed in pretrial detention. Those measures were subsequently replaced with
alternative measures to detention.
10.
On 23 May 2017, a judge (who is the incumbent Counsel General), sent a letter to the
President of the Supreme Court requesting that, if the Odebrecht case reached the Supreme
Court, she not be called on to play a part in the proceedings, either as a special investigating
judge or as a member of the plenary, since she was a friend of one of the defendants.
However, on 6 July 2017, she arrived at the Criminal Chamber to preside over a hearing
involving defendants in the Odebrecht case.
11.
At the end of Mr. Rodríguez Sánchez’s tenure as Counsel General in 2020, the new
President of the Dominican Republic appointed the aforementioned judge as the new Counsel
General, who took office in August 2020.
(ii)
Arrest and detention
12.
On 24 June 2021, Mr. Rodríguez Sánchez set out to leave the Dominican Republic on
a four-day trip. However, the aeroplane was prevented from taking off and passengers were
informed that, due to a technical failure, they would have to disembark and wait for a new
aircraft. After several hours of waiting, Mr. Rodríguez Sánchez was informed by an officer
of the National Investigation Department that, on the instructions of the Counsel General’s
Office, he could not leave the country without a court order.
13.
On 28 June 2021, the new Counsel General recognized the serious violation of
Mr. Rodríguez Sánchez’s fundamental rights, which she described as an “outrage”.
14.
Also on 28 June, Mr. Rodríguez Sánchez reported that he was the victim of
persecution, reiterated that he was at the authorities’ disposal and stated that he had not been
informed that he was under investigation.
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15.
After making such a public complaint, on 28 June, at the request of the Counsel
General’s Office, Mr. Rodríguez Sánchez’s home was searched, along with the living
quarters of other members of his family, in a disproportionate act. Despite this, Mr. Rodríguez
Sánchez was not informed that he was under investigation or that he had been summoned to
appear before the Counsel General’s Office.
16.
In the absence of any official notification or information, on 29 June 2021,
Mr. Rodríguez Sánchez voluntarily arranged to visit the premises of the Counsel General’s
Office, where he was arrested, without being summoned, called or questioned beforehand,
and without being informed of the charges against him or the reason for his arrest.
17.
On 29 June 2021, the incumbent Counsel General publicly recused herself from
hearing the case of Mr. Rodríguez Sánchez. However, she continues to manage the operations
of the Counsel General’s Office and is the hierarchical superior of the prosecutors involved
in the proceedings. The Counsel General allegedly assigned the case to a prosecutor who was
biased against Mr. Rodríguez Sánchez.
18.
It is noted that officials of the Dominican Republic have orchestrated a public smear
campaign against Mr. Rodríguez Sánchez through public statements made by the prosecutor
and her constant media appearances, which is a sign of their intent to cause him harm. The
police authorities that transferred Mr. Rodríguez Sánchez from prison to the court building
deployed special forces and multiple vehicles to that end and fitted him with a helmet and a
bulletproof vest, thus portraying him as a highly dangerous criminal.
19.
The defence lawyers assigned to the case have consistently complained of the
existence of criminal populist manoeuvres as a State policy to keep Mr. Rodríguez Sánchez
deprived of his liberty, in violation of domestic law and to the detriment of fundamental
rights.
(iii)
Trial proceedings
20.
According to the source, on 30 June 2021, one day after Mr. Rodríguez Sánchez was
deprived of his liberty, the Counsel General’s Office requested a judge to order a personal
coercive measure against him.
21.
The judge summoned the parties to an oral hearing on 2 July 2021, which was
postponed and finally took place from 10 to 12 July. Over the course of the proceedings,
Mr. Rodríguez Sánchez, in attempting to exercise his right to be heard by a judge, was
abruptly and systematically interrupted by the public prosecutor’s office during his statement.
Mr. Rodríguez Sánchez was prevented from testifying in relation to the facts referred to by
the Counsel General’s Office.
22.
During the provisional measure review hearing, Mr. Rodríguez Sánchez was
prevented, at the time of his statement, from making any comments regarding a public
document that the Counsel General’s Office had presented as purported evidence against him.
In addition, he was allowed to make only a general statement regarding his ties to the country.
Mr. Rodríguez Sánchez attempted to demonstrate his innocence but was prevented from
doing so by the representative of the Counsel General’s Office and by order of the presiding
judge of Court of Investigation No. 10 attached to the Permanent Judicial Services Bureau of
the National District.
23.
On 13 July 2021, the judge ordered the extension of Mr. Rodríguez Sánchez’s
deprivation of liberty in Najayo men’s prison.
24.
The source expresses great concern over the fact that Mr. Rodríguez Sánchez is being
held in the aforementioned prison, surrounded by prisoners who are there because of legal
action taken by him during his tenure as a judicial official. Due to the high level of danger
posed by the other prisoners, the life and physical integrity of Mr. Rodríguez Sánchez is in
grave and imminent danger, and the state of health is progressively worsening.
25.
Over the course of the proceedings related to the provisional detention measure, on
9 August 2021, the defence lawyers filed an ordinary appeal on the basis of the serious
violations of Mr. Rodríguez Sánchez’s right to be heard and of the infringement of his right
to be tried in liberty before an autonomous, independent and impartial judge.
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26.
On 8 September 2021, the appeal filed by Mr. Rodríguez Sánchez’s defence lawyers
was heard by the Criminal Chamber of the Court of Appeal of the National District. On that
occasion, the prosecutor once again engaged in the serious infringement of the rights of the
defence by interrupting and obstructing Mr. Rodríguez Sánchez’s statement. At the end of
the hearing, the Court of Appeal handed down a judgment upholding the contested decision,
in which it expressly recognized the violation of the rights of the defence. However, it was
considered that the violation had been remedied after Mr. Rodríguez Sánchez had been
allowed to intervene orally.
27.
The defence then filed an appeal in cassation against this judicial decision, repeating
the claim that Mr. Rodríguez Sánchez’s right to be heard had been violated and that the body
of evidence had been distorted. The Court of Appeal judgment recognized the violation of
the fundamental right to a defence, which cannot be enforced by acts of the parties to the
proceedings or by third parties involved. This serious procedural shortcoming can only be
remedied by declaring the absolute nullity of the act and repeating it, rendering null and void
the proceedings initiated and the judicial decisions issued as a consequence of the null and
void act.
28.
In addition, the source complains that, in Mr. Rodríguez Sánchez’s home, where other
members of his family reside, including minors, death threats have been received in the form
of cemetery flower arrangements. Likewise, goods have been stolen from inside his home by
unknown persons. More serious still was the shooting dead of Mr. Rodríguez Sánchez’s
bodyguard and trusted staff. His family is reported to live in a state of permanent anguish
and, despite the corresponding complaints having been filed, the State has not replied or
applied protection measures.
(iv)
Legal analysis
29.
According to the source, Mr. Rodríguez Sánchez was arbitrarily detained and his case
falls under categories I, III and V of the Working Group.
a.
Category I
30.
The source alleges that Mr. Rodríguez Sánchez’s right to leave the country has been
violated by means of an immigration alert issued by the Counsel General’s Office without a
prior court order, in an act that marked the beginning of a pattern of systematic violations of
his fundamental rights.
31.
Article 12 (2) and (3) of the Covenant establish the right to leave the country without
any restrictions except those which are provided by law. This right is provided for in
article 46 of the Constitution.
32.
Mr. Rodríguez Sánchez could only be deprived of his liberty, including his freedom
of movement, by prior court order, as required by article 40 (1) of the Constitution. The act
of preventing Mr. Rodríguez Sánchez from leaving the country on 24 June 2021 was
arbitrary, as it was ordered by the Counsel General’s Office and carried out by the
immigration authorities.
33.
The source notes that, in October 2020, Mr. Rodríguez Sánchez left the country and
returned, which is evidence of his willingness to keep his residence in and ties to the
Dominican Republic. The Counsel General’s Office opened an investigation into alleged
irregularities that had occurred during Mr. Rodríguez Sánchez’s tenure as Counsel General
and initiated an investigation behind his back. He was not informed of the proceedings or
called to make a statement, all of which makes it impossible for him to defend himself.
34.
On the morning of 29 June 2021, Mr. Rodríguez Sánchez announced that he would
appear before the Counsel General’s Office. In the afternoon, the Counsel General’s Office
requested a warrant for his arrest without having informed him of the aforementioned
investigation.
35.
In the afternoon of 28 June 2021, the acting coordinating judge of the courts of
investigation of the National District, in her capacity as investigating judge, authorized the
Counsel General’s Office to arrest the victim, despite having no evidence that the person
under investigation had been notified or summoned to testify and not appeared.
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36.
Article 223 of the Code of Criminal Procedure provides that defendants who are
summoned to appear must be provided with precise information on the act attributed to them
and the purpose of the legal act to be completed, a requirement which was not fulfilled.
37.
The source alleges that this circumstance violated Mr. Rodríguez Sánchez’s right to
know the acts for which he is being investigated, to be provided with a defence counsel and
to proceed to defend himself from the outset of the investigation. The issuance of the
aforementioned arrest warrant under such conditions constitutes arbitrary detention.
38.
The source indicates that Mr. Rodríguez Sánchez’s arrest was carried out on 29 June
2021, when he voluntarily appeared before the Counsel General’s Office without knowing
that a warrant had been issued for his arrest hours earlier.
39.
On the night of 30 June 2021, the Counsel General’s Office wrote to the interim
coordinating judge of the courts of investigation of the National District to request the
imposition of pretrial detention. The hearing, which had been set for 2 July, was postponed
and finally took place from 10 to 12 July 2021.
40.
The source alleges that Mr. Rodríguez Sánchez was arrested on 29 June 2021 and was
brought before the judge on 10 July, 11 days after his deprivation of liberty. This was the
first opportunity he had to appear before the judge and to attempt to exercise his right to be
heard, a right which was also violated during the proceedings.
41.
Article 9 (3) of the Covenant provides for the right of an arrested or detained person
to be brought promptly before a judge. This right is enshrined in article 40 (5) of the
Constitution, which establishes that: “Any person deprived of his or her liberty shall be
brought before the competent judicial authority within 48 hours of being detained or shall be
released. The competent judicial authority shall notify the person concerned of the decision
taken in the case within the same time limit”. Article 95 (7) of the Code of Criminal Procedure
establishes the right of the accused person to be brought before a judge or the public
prosecutor without delay and, in any event, within the time limits established by the Code.
42.
The right to be brought promptly before a judge is fulfilled only when the arrested or
detained person is personally brought before a competent judge; it is not ensured by the
simple sending of a request for a personal coercive measure by the Counsel General’s Office.
The Code of Criminal Procedure states “to be brought”, which implies direct contact between
the accused person and the judge, either in person or by telepresence, provided that
audiovisual contact is guaranteed between the parties to the proceedings, including the
representatives of the Counsel General’s Office and the State Defence Council.
43.
The source indicates that the Constitution and the rules of criminal procedure provide
for a maximum time limit of 48 hours for the arrested or detained person to be brought before
a judge. In the case of Mr. Rodríguez Sánchez, this time limit elapsed, since he was arrested
on 29 June 2021 and should have been brought before a judge in an oral hearing by no later
than 1 July. His being brought before a judge 11 days after his having been deprived of his
liberty has violated his right to be brought before a judge without delay, rendering his
detention arbitrary.
b.
Category III
44.
The source complains that, over the course of the first hearing before the interim
coordinating judge of the courts of investigation of the National District, which was held
between 10 and 12 July 2021, as Mr. Rodríguez Sánchez attempted to give his statement on
12 July, he was coerced and pressured by the representative of the Counsel General’s Office,
which prevented him from being heard by the judge. According to the source, the judge, far
from preventing the violation of the accused person’s right to a defence, consented to it by
issuing a decision that prevented Mr. Rodríguez Sánchez from exercising his right to defend
himself.
45.
The source claims that there has been a violation of Mr. Rodríguez Sánchez’s right to
a fair hearing by a competent, independent and impartial tribunal, which is established in
article 14 (1) of the Covenant, read in conjunction with articles 102 and 103 of the Code of
Criminal Procedure of the Dominican Republic, which confer on the accused person the right
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to testify at any time during the proceedings and establish the judge’s duty to allow him or
her to testify as often as he or she expresses an interest in doing so.
46.
Mr. Rodríguez Sánchez’s defence lawyers have argued that this violation of his
fundamental rights constitutes grounds for declaring the proceedings null and void; the State
authorities have recognized the violation of this right and considered it to have been remedied
by his subsequent intervention during the proceedings. However, the State authorities have
failed to take into account the fact that the violation of the defendant’s rights as they pertain
to his attendance and representation at court can only be remedied or corrected by declaring
the proceedings null and void and holding them again under conditions conducive to the
effective protection of the rights of the parties to the criminal proceedings.
47.
Article 9 (1) and (2) of the Covenant provides that no one may be deprived of his or
her liberty except on such grounds and in accordance with such procedure as are established
by law and that anyone who is arrested must be informed, at the time of arrest, of the reasons
for his or her arrest and must be promptly informed of any charges against him or her.
48.
According to the source, the circumstances of Mr. Rodríguez Sánchez’s detention
violate national and international rules of due process. He was arrested by surprise; he had
not been summoned or informed of the charges against him beforehand. Therefore, he had
no detailed knowledge of the reason for his arrest and did not know that he was the subject
of an investigation.
49.
According to article 9 (3) of the Covenant, pretrial detention must be exceptional and
of short duration, and accused persons must be released when there are means of guaranteeing
that they will appear for trial and serve their sentence. If the period of pretrial detention is
prolonged, the presumption in favour of bail should preferably be applied.
50.
Article 9 (3) of the Covenant requires that the justification for pretrial detention be
analysed in a reasoned judicial decision in every case. Furthermore, this provision provides
that release may be subject to guarantees to appear for trial, at any other stage of the judicial
proceedings and, should occasion arise, for execution of the judgment. Pretrial detention
should be an exceptional measure taken in the interests of justice.
51.
According to the source, Dominican criminal procedure law establishes that pretrial
detention is a measure of last resort and that a lack of ties to the country constitutes grounds
for its application. Several of the individuals under investigation in connection with the same
case as Mr. Rodríguez Sánchez are being investigated while under house arrest.
52.
In order to keep Mr. Rodríguez Sánchez in detention, the judicial authority indicated
that he was a flight risk on account of his previously occupying a high-profile institutional
post. The source claims that being a former public official in itself cannot be considered
evidence of an accused person’s being a flight risk, as this would place former State officials
in general at a disadvantage and discriminate against them.
53.
Holding public office is part of a person’s personal, family, economic and professional
ties to a country, which, if the person does not pose a danger to society, is not a viable basis
on which to issue an arrest warrant for the purpose of criminal prosecution. The source alleges
that what happened in this case violates Mr. Rodríguez Sánchez’s right to be tried in liberty.
54.
Likewise, given that he was engaging in a private professional activity in which he
occupied neither a position of authority nor of power, Mr. Rodríguez Sánchez is unable to
obstruct the investigation.
55.
The source alleges that the judicial authorities and the Counsel General’s Office did
not take into consideration the conditions laid down in Dominican criminal law, which urge
the judge to take special account of the accused person’s ties to the country, which are
determined by his or her residence, whether his or her family is settled there, his or her
employment and whether he or she would easily be able to leave the country or hide; as well
as the attitude adopted by the defendant during the proceedings, insofar as it is an indication
of his or her willingness to submit or not to criminal prosecution.
56.
Mr. Rodríguez Sánchez has ties to the Dominican Republic, where his usual residence
is located, where his family resides and where he served as Counsel General. Therefore, the
Dominican Republic is the centre of his activities.
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57.
Mr. Rodríguez Sánchez would not find it easy to leave the country or hide because he
is easily recognizable by any citizen and because of the high-level security measures to which
he would likely be subject, as is currently the case each time he is transferred by the judicial
authorities, which also violates his right to be presumed innocent and his human dignity.
58.
In the opinion of the source, the attitude adopted by Mr. Rodríguez Sánchez, even
before the proceedings began, has been one of complete transparency with the judicial
authorities. Mr. Rodríguez Sánchez voluntarily appeared before the Counsel General’s Office
with the intention of cooperating with the judicial authorities.
59.
The Inter-American Court of Human Rights has addressed the risk of flight by
concluding that a detailed examination of the specific circumstances of the case must be
conducted,2 the constituent elements of flight risk must also be established by means of
reasonable arguments, and concrete evidence must be provided to demonstrate the risk of
flight.3 In the absence of these elements, the detention of Mr. Rodríguez Sánchez is arbitrary
in keeping with international human rights law.
60.
The source argues that the criteria of competence, impartiality and independence, and
in general the guarantees of a fair trial required of judges, are also applicable to prosecutors,
as the latter have a key role in the administration of justice and the fight against crime.
61.
The source emphasizes that prosecutors are under an obligation to perform their duties
fairly, consistently and expeditiously, to respect and protect human dignity and to uphold
human rights. Their obligations include acting with objectivity. The source underscores the
importance of prosecutors’ active role in criminal proceedings. This role includes instituting
prosecutions, investigating offences, monitoring the lawfulness of proceedings and the
enforcement of court judgments and exercising other functions as representatives of the
general public interest.
62.
The source alleges that, in the case of Mr. Rodríguez Sánchez, the criterion of
impartiality required of prosecutors has not been met since before the beginning of the
proceedings by reason of, for example, the arbitrary order issued by the Counsel General’s
Office of the Dominican Republic to violate Mr. Rodríguez Sánchez’s right to freedom of
movement by preventing him from travelling with his family.
63.
The source mentions that the prosecutor, who intervenes during the criminal
proceedings as Assistant Counsel General and Director of Prosecutions of the above entity,
openly criticized Mr. Rodríguez Sánchez during his tenure as Counsel General by refusing
to sit the competitive examination held by the Supreme Council of the Public Prosecution
Service to replace the 33 serving court prosecutors.
64.
The source alleges that the impartiality of the Counsel General’s Office is
questionable on account of factors such as the close friendship between the Counsel General
and the former Minister of Public Works, during whose tenure most of the works of the
Odebrecht company were carried out, and who was charged and accused by Mr. Rodríguez
Sánchez.
65.
The source indicates that, in March 2019, the then judge and now Counsel General sat
a competitive examination to continue as a member of the Supreme Court, but the National
Judicial Council decided that she did not meet the criteria to remain a member.
66.
According to the source, during the competition process, the then Counsel General
produced letters questioning the assets held by the judge and her links to the former Minister
of Public Works, as well as her links to some drug trafficking cases prosecuted in the country.
67.
The source alleges that, although the Counsel General does not personally oversee
prosecutions, the Attorney General has the power to appoint and remove officials under his
authority, directly oversee investigations and proceedings, freely assign and transfer his
officials to and from investigations and proceedings and determine the opinion and position
of the public prosecutor’s office. This means that prosecutors are subordinates of the Attorney
2 Díaz Peña v. Bolivarian Republic of Venezuela, Judgment of 26 June 2012.
3 Usón Ramírez v. Bolivarian Republic of Venezuela, Judgment of 20 November 2009.
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General, who, though not intervening personally, does so through the intermediary of the
officials beneath him who owe him a duty of obedience.
68.
As an example of the preconceived bias against Mr. Rodríguez Sánchez, the source
indicates that, during the provisional measure review hearing, he was constantly interrupted
by the public prosecutor’s office, which prevented him from testifying and directly affected
his right to a defence.
69.
In addition, the source emphasizes that the Counsel General’s Office has failed in its
duty to provide Mr. Rodríguez Sánchez’s defence lawyers with the information they
requested in relation to the investigation of which he is the subject. The source alleges that
this not only constitutes another violation of Mr. Rodríguez Sánchez’s right to a defence, but
also shows that the Counsel General’s Office is only interested in keeping him in detention,
not in investigating the facts and uncovering the truth.
70.
Mr. Rodríguez Sánchez is being held in Najayo prison, surrounded by persons he
investigated as Counsel General and thus helped put behind bars, or persons who are
associates of those he investigated. He has been placed in a group cell, which has been classed
as maximum security, but which is located in the same cellblock and compound as 800 other
inmates.
71.
These 800 inmates include convicted drug traffickers who were arrested on
Mr. Rodríguez Sánchez’s orders and who have threatened him. There are also other
defendants accused of money-laundering and drug trafficking who have links to a criminal
organization that Mr. Rodríguez Sánchez investigated when he was Counsel General.
72.
The source highlights the case of an individual who was identified in August 2018 by
the Department of State of the United States of America as the ringleader of an international
drug trafficking network and of other crimes, including money-laundering and human
trafficking. On 2 December 2019, this person was captured by the Colombian police and the
Attorney General’s Office, as part of an operation in which Mr. Rodríguez Sánchez, the then
Counsel General, played a coordinating role. Since that date, the individual has posted several
audio messages to social media threatening the person who, at the time, organized and
oversaw his capture.
73.
Moreover, a defendant accused of murder whose extradition Mr. Rodríguez Sánchez
requested from the United States of America is housed on the same floor as him and has
access to Mr. Rodríguez Sánchez during the day.
74.
The source indicates that the public office held by Mr. Rodríguez Sánchez places him
in an especially vulnerable situation, as he is in constant danger inside the prison. It is not a
matter of preferential or special treatment; rather the State has a duty to ensure his right to
life and physical integrity.
75.
According to the information received, the inmates in the prison have easy access to
Mr. Rodríguez Sánchez and also cook and serve his food (since he is not allowed to receive
food from the outside). For the source, this not only violates the United Nations Standard
Minimum Rules for the Treatment of Prisoners, the American Convention on Human Rights
and the Covenant, but also demonstrates that the State took a conscious risk in exposing
Mr. Rodríguez Sánchez to possibly fatal danger without any measures having been taken to
protect him.
c.
Category V
76.
The source claims that, when there is a pattern of persecution against a single person,
for example, in cases where an individual is targeted on multiple occasions through arrests,
acts of violence or threats, it is indicative of discrimination. Such discrimination exists in the
case of Mr. Rodríguez Sánchez, who was targeted repeatedly, even before his arrest.
77.
The source alleges that, on 26 June 2021, his right to freedom of movement was
restricted since, on the orders of the Counsel General’s Office, he was not allowed to leave
the country. At the time, he was unable to identify who had issued the arbitrary order against
him.
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78.
The source recalls that the Working Group has held that discrimination and
harassment based on occupation is an emerging category of discrimination and may form the
basis for arbitrary detention under category V.4
79.
In the case of Mr. Rodríguez Sánchez, the source alleges that his detention is arbitrary
under category V in view of the reprisals taken against him by members of the State in the
form of judicial harassment on account of the work that he carried out in the legitimate
exercise of the office of Counsel General.
80.
The source indicates that Mr. Rodríguez Sánchez’s anti-corruption policies, which led
to the indictment of a number of individuals, and his strong belief in transparent selection
processes, which led to the removal of other individuals from their positions in judicial
institutions, were the reasons behind the reprisals taken against Mr. Rodríguez Sánchez.
Therefore, these reasons are political in nature.
81.
The source adds that another indication that a detention may be motivated by political
discrimination is if the detainee is treated by the authorities in a manner that reveals prejudice.
For example, through statements about the detainee or behaviour towards the detainee that
reflect a discriminatory attitude. The source alleges that this has been demonstrated by the
statements made by the different actors involved in the proceedings, the comments and
decisions of the judges, and Mr. Rodríguez Sánchez’s detention conditions.
82.
The source adds that other officials and former officials of the Counsel General’s
Office were likewise persecuted. For example, the public prosecutor and the Director of
Prosecutions of the Counsel General’s Office were both suspended. Furthermore, concerning
the same matter, an arrest warrant has been issued in respect of the person who served as
director of the Counsel General’s Office during the tenure of Mr. Rodríguez Sánchez, which
likewise amounts to arbitrary persecution. The persecution of specific groups is also a sign
of political persecution.
83.
In the opinion of the source, the detention of Mr. Rodríguez Sánchez must be
considered arbitrary, taking into account the pattern of conduct that demonstrates that he is
being targeted specifically for political reasons, which constitutes a violation of the right to
non-discrimination and equality before the law, under category V.
(b)
Response from the Government
84.
In order to be able to issue an opinion in the present case, the Working Group, in
accordance with its methods of work, transmitted the source’s allegations to the Government
of the Dominican Republic on 5 May 2022, requesting a response by 4 July 2022. The
Working Group also requested the Government to provide detailed information regarding the
case of Mr. Rodríguez Sánchez, to clarify the legal and factual basis for his detention and to
comment on its compatibility with the State’s international human rights obligations. The
Government submitted its response on 3 August 2022. The Working Group finds it
regrettable that the Government did not respond to the communication within the time limit.
85.
Despite the Government’s late response, the Working Group will proceed to render
an opinion on the arrest and detention of Mr. Rodríguez Sánchez, on the basis of all the
information that it has received, in accordance with paragraph 16 of its methods of work.5
2.
Discussion
86.
The Working Group has in its jurisprudence established the ways in which it deals
with evidentiary issues. If the source has established a prima facie case for breach of
international human rights law constituting arbitrary detention, the burden of proof should be
understood to rest upon the Government if it wishes to refute the allegations.6 Mere assertions
that lawful national procedures have been followed are not sufficient to rebut the source’s
allegations.
4 Opinion No. 24/2015.
5 Ibid.
6 A/HRC/19/57, para. 68.
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87.
The Working Group wishes to reaffirm that States have an obligation to respect,
protect and uphold all human rights and fundamental freedoms, including liberty of person,
and that any national law allowing deprivation of liberty should be formulated and
implemented in conformity with the relevant international standards set forth in the Universal
Declaration of Human Rights and other applicable international instruments. Consequently,
even if a detention is in conformity with national legislation, regulations and practices, the
Working Group has a right and an obligation to assess the judicial proceedings and the law
itself to determine whether the detention is also consistent with the relevant provisions of
international human rights law.7
(a)
Category I
88.
The Working Group recalls that a detention is considered arbitrary under category I if
it lacks legal basis. As it has previously stated, in order for a deprivation of liberty to have a
legal basis, it is not sufficient that there is a law that may authorize the arrest. The authorities
must invoke that legal basis and apply it to the circumstances of the case by means of an
arrest warrant.8
89.
In the present case, Mr. Rodríguez Sánchez voluntarily appeared before the Counsel
General’s Office on 29 June 2021, and it was only then that he was arrested, on the basis of
an arrest warrant that had apparently been issued earlier. From the account given by the
source, which has not been contested by the Government in a timely manner, it appears that
Mr. Rodríguez Sánchez was not duly presented with this warrant at the time of his arrest on
29 June 2021, nor were the reasons for his arrest explained (see paras. 15 and 16). However,
the provisions of international law on deprivation of liberty include the right to be presented
with an arrest warrant, which is a procedurally inherent component of the right to liberty and
security of person and the prohibition of arbitrary detention under articles 3 and 9,
respectively, of the Universal Declaration of Human Rights, article 9 of the Covenant and
principles 2, 4 and 10 of the Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment.9
90.
Any form of detention or imprisonment should be ordered by a judicial or other
authority in keeping with the law or be subjected to the effective control of the judicial
authority, the status and tenure of which should afford the strongest possible guarantees of
competence, impartiality and independence in accordance with principle 4 of the Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
In the present case, although it appears that a warrant was issued for the arrest of
Mr. Rodríguez Sánchez, he was arrested without being duly presented with the warrant and
notified of the reasons for his arrest.
91.
The Working Group observes that article 9 (2) of the Covenant imposes two
requirements for the benefit of persons who are deprived of liberty: first, they are to be
informed, at the time of arrest, of the reasons for the arrest; and, second, they are to be
informed of the charges against them. As the Human Rights Committee has explained, one
major purpose of requiring that all arrested persons be informed of the reasons for the arrest
is to enable them to seek release if they believe that the reasons given are invalid or
unfounded. While oral notification of reasons for arrest satisfies the requirement, that
information must be provided immediately upon arrest.10
92.
Therefore, the Working Group concludes that, although a warrant was issued for the
arrest of Mr. Rodríguez Sánchez prior to his arrest on 29 June 2021 – the Government, in its
late response, stated that such a warrant did in fact exist – he was not duly notified of this
arrest warrant and the reasons for his arrest were not explained to him at the time of his arrest,
in violation of the first element of article 9 (2) of the Covenant. The Working Group thus
considers that this violates article 9 (2) of the Covenant and principle 7 of the United Nations
7 Opinions No. 10/2018, para. 39; No. 4/2019, para. 46; No. 46/2019, para. 50; and No. 5/2020,
para. 71.
8 See, for example, opinions No. 1/2017, No. 6/2017, No. 8/2017, No. 30/2017, No. 2/2018,
No. 4/2018, No. 42/2018, No. 43/2018 and No. 79/2018.
9 Opinions No. 88/2017, para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39.
10 General comment No. 35 (2014), paras. 24 and 27.
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Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone
Deprived of Their Liberty to Bring Proceedings Before a Court.
93.
Lastly, as the Working Group has consistently held,11 to establish that a detention is
indeed legal, anyone detained has the right to challenge the legality of his or her detention
before a court, as envisaged in article 9 (4) of the Covenant. The Working Group wishes to
recall that, according to the United Nations Basic Principles and Guidelines on Remedies and
Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings before a
Court, the right to challenge the lawfulness of detention before a court is a self-standing
human right, which is essential to preserve legality in a democratic society.12 This right,
which is in fact a peremptory norm of international law, applies to all situations of deprivation
of liberty13 and must be granted without undue delay.
94.
The Working Group recalls that, as the Human Rights Committee has noted, 48 hours
is normally sufficient to satisfy the requirement of bringing a detainee “promptly” before a
judge or other officer authorized by law following his or her arrest. Any delay longer than
this must remain absolutely exceptional and be justified by the circumstances.14
95.
In the present case, Mr. Rodríguez Sánchez was arrested on 29 June 2021, but had no
opportunity to challenge the legality of his detention for almost two weeks, as he was not
brought before a judge until 10 July 2021, and the Government did not adduce in a timely
manner reasons to justify this delay. Thus, the Working Group finds a violation of article 9
(4) of the Covenant.
96.
The Working Group also considers that judicial oversight of detention is a
fundamental safeguard of personal liberty15 and is essential in ensuring that detention has a
legal basis. Given that Mr. Rodríguez Sánchez was unable to challenge his ongoing detention,
his right to an effective remedy under article 8 of the Universal Declaration of Human Rights
and article 2 (3) of the Covenant was also violated.
97.
In the light of all the foregoing, the Working Group considers that the detention of
Mr. Rodríguez Sánchez on 29 June 2021 is arbitrary and falls under category I.
(b)
Category III
98.
The Working Group will proceed to analyse whether, in the course of the judicial
proceedings, the fundamental elements of a fair, independent and impartial trial have been
respected.
99.
The right to a fair trial was established in the Universal Declaration of Human Rights
as one of the fundamental pillars of international law to protect individuals against arbitrary
treatment. To that end, everyone has the right to be heard in a public trial at which they have
all the guarantees necessary for their defence and where their right to be tried by a competent,
independent and impartial court is respected.
100.
The source has submitted a number of allegations, which the Government has chosen
not to address in a timely manner, concerning violations of Mr. Rodríguez Sánchez’s right to
be presumed innocent. In particular, the Working Group is alarmed by the unrefuted
allegations that both State officials and the prosecutor made a series of public statements
intended to discredit Mr. Rodríguez Sánchez and that he was always provided with a robust
military escort during his transfers so that he would be seen as a dangerous criminal (see
para. 18).
101.
The Working Group wishes to emphasize that the presumption of innocence is one of
the fundamental principles of a fair trial and thus non-derogable and guarantees that no guilt
can be presumed until the charge has been proved beyond reasonable doubt. This right, which
is enshrined in article 11 (1) of the Universal Declaration of Human Rights and in
11 See, for example, opinions No. 1/2017, No. 6/2017, No. 8/2017, No. 30/2017, No. 2/2018,
No. 4/2018, No. 42/2018, No. 43/2018 and No. 79/2018.
12 A/HRC/30/37, paras. 2 and 3.
13 Ibid.
14 Human Rights Committee, general comment No. 35 (2014), paras. 32 and 33.
15 A/HRC/30/37, paras. 2 and 3.
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article 14 (2) of the Covenant, applies at all stages of the proceedings and the Working Group
thus concludes that Mr. Rodríguez Sánchez’s rights under these provisions were violated.
102.
The source states that Mr. Rodríguez Sánchez’s right to be tried in liberty has been
violated. The source adds that the judicial authorities and the Counsel General’s Office did
not assess the specific circumstances of the case to determine the appropriateness of imposing
the provisional measure of pretrial detention. The Counsel General’s Office also failed to
adduce reasonable arguments regarding the potential flight risk and to provide concrete
evidence to demonstrate the risk of flight. The Government, in its belated response, states
that domestic legislation establishes that pretrial detention can last up to 18 months in
complex cases such as this one, owing to the plurality of the acts attributable to the accused
persons and the fact that the case involves organized crime against State assets.
103.
The Working Group insists that, in accordance with article 9 (3) of the Covenant,
anyone arrested or detained on a criminal charge is to be brought promptly before a judge. In
exercising his or her judicial power, the judge must ensure that pretrial detention remains the
exception and not the rule and that, if pretrial detention is ordered, it is for the shortest
possible time.16 In other words, under the Covenant, liberty should be the prime consideration
and pretrial detention an exception. Accordingly, pretrial detention must be based strictly on
an individualized determination that it is reasonable and necessary for such purposes as to
prevent flight, tampering with evidence or the recurrence of the offence.
104.
The Working Group notes that pretrial detention, which, as established previously,
should be the exception and not the rule and last for the shortest possible period of time,
should also be based on an individual determination that it is reasonable and necessary to
achieve the aims sought. Courts must consider whether alternatives to pretrial detention, such
as bail, would render detention unnecessary. 17 In determining whether the conditions
governing pretrial detention have been met, the Working Group examines whether the
national courts have taken into account the particular circumstances of the person concerned
but does not check whether there are risks that would make pretrial detention necessary.18
105.
The Working Group notes that, in the present case, the Government simply points to
domestic legal provisions and the alleged complexity of the crime, but does not explain what
circumstances specifically relevant to Mr. Rodríguez Sánchez justified his pretrial detention
from 13 July 2021 and for the following 18 months.
106.
The Working Group not only considers this period of time to be excessive but also to
run counter to international norms and guarantees against arbitrary detention, as set out in
article 10 of the Universal Declaration of Human Rights and principle 11 of the Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
This violation of Mr. Rodríguez Sánchez’s human rights also contravenes the standard
established by the Human Rights Committee, which has observed that, in order to avoid a
characterization of arbitrariness, detention must not continue beyond the period for which the
State party can provide an appropriate justification.19
107.
In the present case, the requirements of article 9 (3) of the Covenant were not
respected and, consequently, the Working Group considers that Mr. Rodríguez Sánchez’s
rights under this provision were violated.
108.
The source has argued, and the Government did not refute, that Mr. Rodríguez
Sánchez’s ability to exercise his right to defend himself was adversely affected when he and
his defence lawyers were not allowed to state their case freely and, in actual fact, were
systematically interrupted by the prosecution (see paras. 25 and 27), which was even later
acknowledged by the court, although it did not provide a remedy (see para. 27). Thus, the
Working Group finds a violation of article 14 (3) (b) of the Covenant.
16 A/HRC/19/57, paras. 48–58; and opinions No. 5/2019, para. 26; No. 62/2019, paras. 27–29; and
No. 64/2020, para. 58.
17 Human Rights Committee, general comment No. 35 (2014), para. 38.
18 Opinions No. 46/2020, para. 62; No. 37/2021, para. 72; and No. 15/2022, para. 66.
19 Opinions No. 5/2019, para. 26; and No. 62/2019, paras. 27–29.
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13
109.
The Working Group insists that the failure of both the judge who ordered the
provisional measure in respect of Mr. Rodríguez Sánchez and the Criminal Chamber of the
Court of Appeal of the National District to provide a remedy for these violations (see
paras. 21–27) also constituted a violation of Mr. Rodríguez Sánchez’s right to be heard by an
impartial tribunal. This right is codified in article 14 (1) of the Covenant. The Working Group
cannot, therefore, consider that the judicial authority in charge of Mr. Rodríguez Sánchez’s
detention is independent and impartial when it has refused to examine, discuss and answer
the allegations of arbitrary detention and the appeals filed. Therefore, the Working Group
decides to refer the case to the Special Rapporteur on the independence of judges and lawyers.
110.
Consequently, in the light of all the foregoing, the Working Group concludes that the
detention of Mr. Rodríguez Sánchez was the result of a process that seriously violated his
right to a fair trial, enshrined in article 14 of the Covenant, and was therefore arbitrary and
falls under category III.
(c)
Category V
111.
The source has also alleged that the arrest and subsequent detention of Mr. Rodríguez
Sánchez was discriminatory, an allegation which the Government has chosen not to refute in
a timely manner.
112.
The Working Group notes the highly politicized context in which the arrest of
Mr. Rodríguez Sánchez took place, as well as the numerous public statements of his guilt
made by public officials and the prosecutor and the courts’ failure to allow Mr. Rodríguez
Sánchez to effectively exercise his right to a defence, as already established above (see legal
analysis under category III). However, the Working Group is not convinced, on the basis of
all the evidence gathered, that the arrest and detention of Mr. Rodríguez Sánchez were the
result of discrimination, in violation of articles 2 and 7 of the Universal Declaration of Human
Rights and articles 2 (1) and 26 of the Covenant.
(d)
Concluding remarks
113.
Persons deprived of their liberty in penitentiary and prison establishments must be
treated with respect for their inherent dignity as human beings. Consequently, these persons
enjoy, on an equal basis, the same rights as other members of society. This right is enshrined
in the Universal Declaration of Human Rights and the Covenant, as well as in the United
Nations Standard Minimum Rules for the Treatment of Prisoners.
114.
The Working Group is concerned that Mr. Rodríguez Sánchez has been kept in prison
in a life-threatening situation, in flagrant violation of the above-mentioned instruments.
3.
Disposition
115.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Jean Alain Rodríguez Sánchez, being in contravention
of articles 3, 8, 9, 10 and 11 of the Universal Declaration of Human Rights and of
articles 2, 9, 10 and 14 of the International Covenant on Civil and Political Rights, is
arbitrary and falls within categories I and III.
116.
The Working Group requests the Government of the Dominican Republic to take the
steps necessary to remedy the situation of Mr. Jean Alain Rodríguez Sánchez without delay
and bring it into conformity with the relevant international norms, including those set out in
the Universal Declaration of Human Rights and the International Covenant on Civil and
Political Rights.
117.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Rodríguez Sánchez immediately and
accord him an enforceable right to compensation and other reparations, in accordance with
international law.
118.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
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Mr. Rodríguez Sánchez and to take appropriate measures against those responsible for the
violation of his rights.
4.
Follow-up procedure
119.
In accordance with paragraph 20 of its methods of work, the Working Group requests
the source and the Government to provide it with information on action taken in follow-up
to the recommendations made in the present opinion, including:
(a)
Whether Jean Alain Rodríguez Sánchez has been released and, if so, on what
date;
(b)
Whether compensation or other reparations have been made to Jean Alain
Rodríguez Sánchez;
(c)
Whether an investigation has been conducted into the violation of Jean Alain
Rodríguez Sánchez’s rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made to
harmonize the laws and practices of the Dominican Republic with its international obligations
in line with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
120.
The Government is invited to inform the Working Group of any difficulties it may
have encountered in implementing the recommendations made in the present opinion and
whether further technical assistance is required, for example through a visit by the Working
Group.
121.
The Working Group requests the source and the Government to provide the
above-mentioned information within six months of the date of transmission of the present
opinion. However, the Working Group reserves the right to take its own action in follow-up
to the opinion if new concerns in relation to the case are brought to its attention. Such action
would enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as of any failure to take action.
122.
The Working Group recalls that the Human Rights Council has encouraged all States
to cooperate with the Working Group and has requested them to take account of its views
and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily
deprived of their liberty, and to inform the Working Group of the steps they have taken.20
[Adopted on 30 August 2023]
20 Human Rights Council resolution 51/08, paras. 6 and 9.