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EPIC --- Privacy and Human Rights Report 2006

Dominican Republic

Constitutional Framework

The 2002 Constitution establishes a minimum protection of the right to privacy. This provision also includes the right of inviolability of the home and secrecy of communications and private documents, as well as freedom of the press, freedom of expression and freedom of association. Article 8.3 provides that “Any home visit cannot be made unless in specific cases established by the law and pursuant to a judge's order.” Article 8.9 establishes that “letters and other private documents cannot be seized nor registered unless in specific cases established by legal procedures and pursuant to a judge's order.” The Constitution also protects the inviolability of telegraphic, telephonic and cable communications. Article 8.1 guarantees the right to the inviolability of life, where “it cannot be established, neither passed nor apply in any case the death penalty, neither the torture, nor any other penalty or vexatious method or one that implies the loss or decrease of the physical integrity or health of the individual.”[2068]

Article 10 provides that: “the enumeration contained in Articles 8 and 9 is not limitative, and consequently, it does not exclude other rights and duties of equal nature.” Furthermore, Article 3 requires that the “Dominican Republic recognize and apply the regulation of the Public International Law as far as its public authorities have adapted them.”

Habeas data has not been expressly included in the Constitution or other applicable law in Dominican Republic. However, the Appeal for Legal Protection Act provides protection “against any act or omission from the public authority, or from any individual, that currently or in an imminent way and with obvious arbitrariness or illegality injure, restrict, alter or threaten the rights or guarantees explicitly or implicitly recognized in the Constitution.”[2069]

Statutory Rules Related to Privacy

Dominican Republic does not have comprehensive data protection legislation. However, privacy is protected in various laws, decrees, and in resolutions issued by different state organizations. The Ombudsman has the faculty to intervene, representing the collectivity interests, in matters related to human rights, environment, women, children and adolescent affairs and in topics related to consumer protection.[2070] The Ombudsman has had no had practical effect yet, as no one has been appointed to the position.

The Dominican Republic Monetary and Financial System Act stipulates that credit risk information systems must supply truthful, accurate and exact data on debtors. The Act establishes a 10-year term for retention, and contains a purpose limitation for the data.[2071]

The Dominican Republic AIDS Act regulates the procedure that the health specialists should carry out when they determine an HIV positive result in an individual; furthermore it determines the compulsory confidentiality of the information related to AIDS bearers.[2072]

The Credit Information Societies and the Protection of the Data Subject Act regulates the processing of financial solvency data carried out by commercial data brokers. The Act establishes the principles of data protection, consent, data subject rights and the procedure to perform those rights, as well penalties for infringement.[2073]

The Electronic Commerce, Digital Documents and Signatures Act’s Complementary Law on Personal Data Protection regulates the processing of personal data of the subscribers and users of digital certification and signature services. This resolution establishes the principles of data protection, the consent of the data subject for the processing of personal data, security measures, data subjects right to access, correction and cancellation of their own personal data and the penalizing regime for infringements.[2074]

In August 2003, the Code for the Protection of Child and Adolescents Rights was passed.[2075] According to Article 18, all children and adolescents have the right to a private life and to a personal and familiar privacy, banning the arbitrary intrusion from any State authority or from anyone else. Article 26 of the Code contains a prohibition on the “disposition or disclosure, by any mean, of the image or data of children and adolescents in a way that can affect his/her development (...) or that constitute an arbitrary intrusion in his/her private or familiar life.”

The Freedom on Access to Public Information provides that when an individual requests information from a State Institution and this “affects supreme interests or private rights”, such as the “disclosure of personal data that could infringe personal privacy... personal data can be handled only when there is specific and unambiguous evidence that the individual affected consents to the processing of the data or that the law compels its disclosure.”[2076] The Act also includes two exceptions that would permit disclosure: i) the personal data is of public interest; or ii) disclosure is necessary to an investigation carried out by a Public Administration Body.

Wiretapping and Surveillance

The General Telecommunications Act protects the secrecy and inviolability of communications.[2077] The Act establishes that the communications, information and data dispatched through telecommunications services are secret and inviolable with the exception of judicial intervention according to common law, and the provisions of special laws. The telecommunications public service providers must protect the mentioned inviolability, but will not be responsible for violations committed by users or third parties without the provider’s participation, fault or omission.

Article 337 of the Criminal Code criminalizes the intentional violation of personal private life through the capturing, recording or transmission, without the authorization of the person involved, of words or images that have been performed in a private way and place.[2078]

Article 190 of the Criminal Procedure Code allows the seizure of mail dispatched or received by a defendant of a criminal act upon judicial order. In the same way, Article 192 allows the interception of communications, messages, data, images and sounds by any means of a defendant of a criminal act if the provisions and guarantees established by law are observed.[2079]

A preliminary bill of the new Criminal Code of the Dominican Republic, would criminalize purposeful attacks on the “right of private life, capturing, registering or transmitting, without the consent of the victim, words pronounced in private or confidentially; setting up, registering or transmitting the image of a person located in a private place, without his/her consent”; as well as the disclosure “to the general public or a third party, any register obtained according to the former article”. It also penalizes “opening, suppressing, delaying or distracting mail or private documents, arrived or not to its destination and addressed to a third party; or take notice through fraud of that mail or private documents (...), or the interception, distraction, use, or disclosure of mail or private documents issued, transmitted or received via telecommunications; or proceed to the installation of devices conceived to perform those interceptions” in bad faith.[2080]

In the same way, those who intercept “intentionally and with illegal purposes, transmissions of private data from, through or targeted to a computer or telecommunications system, or of the electromagnetic emissions broadcasted by them”; or the act of “erasing, copying, mutilating, diverting, editing, altering or eliminating current data in computer systems or transmitted through these or through a telecommunication system” would also be penalized.[2081] Similarly, individuals trustees of public authority or in charge of a public service, or his/her dependants, or auxiliaries” may not “order, perform or facilitate, beside the cases provided by the law, the distraction, suppression or opening of mail or disclosure of the contents of them”.[2082]

The High Technology Offenses and Crimes Act Article 19 makes it an offense to “use, without legitimate cause or authorization of the competent legal organization, electronic, computer, telecommunications systems or devices that could serve to perform operations against privacy in any of its forms.[2083] Article 9 sanctions “the act of intercepting, tapping, modifying, stopping, spying, listening, deviating, recording, or monitoring by any mean a signal, a data or a signal transmission belonging to another person with illegal intentions by him/herself or order by someone else, without the authorization of the competent judge, from, through or directed to an electronic, computer, telematic or telecommunications system or of emissions originated by them, committing voluntary or involuntary the violation of the secrecy and the privacy of the natural and juridical person.”

The Regulation of Judicial Authorization for the Electronic Monitoring and Interception of Communications issued by the Supreme Court of Justice aims to ensure “the effective fulfillment of the constitutional guarantees in relation to the secrecy of communications.” It also establishes that the interception must be absolutely necessary for the collection of evidence in a criminal investigation.[2084] The interception of communications of an individual will only be authorized when there are justified reasons to damage “the privacy of the secrecy of communications” and when the judicial authorities evaluated this measure.

Resolution Nº 36-00 penalizes illegal telecommunications interceptions in the Dominican Republic.[2085] This Resolution creates the Dominican Institute of Telecommunications (Instituto Dominicano de Telecomunicaciones) (INDOTEL) that is the governing body of the telecommunications in the Dominican Republic. This institute issues penalties to any individual that participates in a direct or indirect way in the modification, interception, intervention, reception, entrusting, permission, spying, tapping, without judicial order, of any of the telecommunications means that are intended for the general public, violating the secrecy and privacy of the people.”[2086] According to this Resolution, the inviolability of the secrecy of the telecommunications includes the content of the dialogue as well as the identities of the parties.

International Obligations

The Dominican Republic has signed and ratified the Universal Declaration of Human Rights (1948), the International Covenant Civil and Political Rights (1966), the Convention of the Right of the Child (1989) and the American Convention on Human Rights (1969). The Dominica Republic also recognizes the competence of the American Court of Human Rights for the interpretation and judgment of human rights cases, subject to international reciprocity.

In November 2003, the XIII Ibero-American Conference was held in Bolivia. The results of this meeting were reflected in "Santa Cruz de La Sierra Declaration," which recognizes data protection as a fundamental right.[2087]

[2068] Constitución de la República Dominicana [Const.], Article 8.3; 8.9, available at <http://www.consultoria.gov.do/const_rd.pdf> (in Spanish, last amended in 2002).

[2069] Ley que establece el Recurso de Amparo No. 437-06, November 30, 2006 at Art.1.

[2070] Act 19-01 that established an Ombudsman for the Dominican Republic, February 01, 2001.

[2071] Ley No. 183-02 sobre el Sistema Monetario y Financiero de la República Dominicana, November 20, 2002 at Art.56, available at <http://www.bancentral.gov.do/normativa/leyes/Ley_Monetaria_y_Financiera.pdf> (in Spanish).

[2072] Ley del Sida de la República Dominicana, No. 55-93, December 31, 1993, available at <http://www.See.gov.do/siteSee.net/MNU/Documents/Rep_Dominicana.pdf>.

[2073] Ley No. 288-05, sobre las Sociedades de Información Crediticia y de Protección al Titular de la Información, available at <http://www.datacredito.com.do/s_ley_buro.asp> (in Spanish).

[2074] Ley No. 126-02, sobre Comercio Electrónico, Documentos y Firmas Digitales y su Norma Complementaria sobre Protección de Datos de Carácter Personal por los Sujetos Regulados at Art. 21c), available at <http://www.optic.gob.do/leyes/Ley_126-02_Comercio_Elec_Firmas_Digitales.pdf> (in Spanish).

[2075] Código para el Sistema de Protección de los Derechos de los Niños, Niñas y Adolescentes, available at <http://www.unicef.org/republicadominicana/resources_4843.htm> (in Spanish).

[2076] Ley General de Libre Acceso a la Información Pública, No. 200-04, July 13, 2004 at Art. 18, available at <http://www.senadord.com/images/ley_libre_acceso_informacion_publica.pdf> (in Spanish).

[2077] Ley General de Telecomunicaciones, No. 153-98, April 15, 1998, at Art.5, available at <www.indotel.org.do/ley_153-98.aspx> (in Spanish).

[2078] Código Penal de la República Dominicana, <http://www.suprema.gov.do/codigos/>. (in Spanish).

[2079] Código Procesal Penal de la República Dominicana, available at <http://www.suprema.gov.do/codigos/> (in Spanish).

[2080] Anteproyecto del nuevo Código Penal de la República Dominicana at Art. 275, 276, and 290.

[2081] Id. at Art. 436 and 437.
[2082] Id. at Art. 505.

[2083] Ley de Delitos y Crímenes de Alta Tecnología, No. 53-0723, April 23, 2007, available at <http://www.suprema.gov.do/pdf/leyes/2007/Ley_53-07.pdf>.

[2084] Reglamento sobre la Autorización Judicial para la Vigilancia e Interceptación Electrónica de Comunicaciones, Resolución No. 2043-2003, November 13, 2003 at Art. 2, issued by Supreme Court of Justice, available at <http://www.informejudicial.com/leyes/Telecomunicaciones/Resolucion%20SCJ%202043-03%20vigilancia%20e%20Interceptacion%20electronica%20de%20comunicaciones.htm> (in Spanish).

[2085] Resolución No. 36-00 que sanciona las interceptaciones ilegales de las telecomunicaciones en la República Dominicana, dictada por el Instituto Dominicano de Telecomunicaciones (INDOTEL), December 19, 2000, available at <http://www.indotel.org.do/(gasm1g45kemxyx55rcppfvmb)/filelist_getfile.aspx?id=127> (in Spanish).
[2086] Id. at Art. 1.

[2087] XIII Cumbre - Santa Cruz de la Sierra 2003, Declaración de Santa Cruz de la Sierra, Article 45, November14-15, 2003, <http://www.cumbresiberoamericanas.com/ant/docs_pdf/decla_Santa_Cruz_de_la_Sierra.pdf>.