Libro Primero · Título III Capítulo VI. Medidas de coerción

Whoever considers that they may be accused in criminal procedure may appear before the Public Prosecutor's Office requesting to be heard.

When the presence of the accused is necessary, their summons or conveyance shall be ordered.

When at the initial moment of the investigation of an act, it is not possible to individualize the perpetrator or the participants and the witnesses and urgent action is required so as not to prejudice the ascertainment of the truth, it may be ordered that those present shall not leave the place, nor communicate with each other before providing information, nor alter the state of the things and of the places, adopting the measures appropriate to the case, and, if necessary, the remaining of all of them at the place shall also be ordered.

The police shall apprehend whomever they catch in flagrante delicto. Flagrancy shall be understood to exist when the person is caught at the very moment of committing the crime. Apprehension shall likewise proceed when the person is discovered moments after the crime has been committed, with traces, instruments or effects of the crime that give well-founded reason to believe that such person has just participated in the commission thereof. The police shall initiate immediate pursuit of the offender who has been caught in flagrancy when apprehension at the same place of the act has not been possible. For apprehension to proceed in this case, continuity must exist between the commission of the act and the pursuit.

In the same case, any person is authorized to carry out the apprehension and to prevent the punishable act from producing further consequences. Such person shall immediately deliver the apprehended person, together with the things collected, to the Public Prosecutor's Office, to the police or to the nearest judicial authority.

The Public Prosecutor's Office may request the apprehension of the accused from the judge or tribunal when it considers that the legal requirements are met and that incarceration of the accused is necessary, in which case it shall place the accused at the disposal of the judge who controls the investigation. The judge may order any alternative measure to deprivation of liberty, or dispense with it, in which case the judge shall release the accused.

The duty and power provided for in the preceding article shall extend to the apprehension of the person whose detention has been ordered or of one who escapes from the establishment where they are serving their sentence or pretrial detention.

In these cases the apprehended person shall be placed immediately at the disposal of the authority that ordered their detention or of the person in charge of their custody.

Preventive imprisonment may be ordered, after hearing the indicted person, when there is information on the existence of a punishable act and sufficient rational grounds to believe that the indicted person has committed it or participated in it.

Liberty shall not be restricted except within the absolutely indispensable limits to ensure the presence of the accused person in the proceedings.

The imprisonment order shall be issued by the competent judge or tribunal, and shall contain:

1)The personal data of the accused person or those that serve to identify him.

2)A succinct statement of the fact or facts attributed to him.

3)The grounds, with specific indication of the prerequisites giving rise to the measure.

4)The citation of the applicable criminal provisions.

In less serious crimes, pretrial detention shall not be necessary, unless there is a reasonable presumption of flight or of obstruction of the ascertainment of the truth.

Pretrial detention may not be ordered in crimes that do not provide for a penalty involving deprivation of liberty or when, in the specific case, such sanction is not expected.

To decide on the risk of flight, the following circumstances shall be taken into account, especially:

1)Ties in the country, determined by domicile, habitual residence, seat of the family, of their businesses or work and the facilities for permanently leaving the country or remaining hidden.

2)The penalty expected as a result of the procedure.

3)The importance of the compensable damage and the attitude that the suspect or accused person voluntarily adopts toward it.

4)The behavior of the suspect or accused person during the procedure or in another prior procedure, to the extent that it indicates their willingness to submit to criminal prosecution; and

5)The prior conduct of the accused person.

To decide on the danger of obstruction to the ascertainment of the truth, account shall be taken, especially, of the grave suspicion that the accused person might:

1)Destroy, modify, conceal, suppress or falsify elements of evidence.

2)Influence co-accused persons, witnesses or experts to provide false information or to behave in a disloyal or reticent manner.

3)Induce others to engage in such behaviors.

Whenever the danger of flight or of obstruction of the investigation of the truth can reasonably be avoided by application of another less severe measure for the accused person, the competent judge or tribunal, on its own initiative, may impose upon him one or several of the following measures:

1)House arrest, in his own domicile or residence or in the custody of another person, without any surveillance or with such surveillance as the tribunal may order.

2)The obligation to submit to the care or supervision of a designated person or institution, who shall periodically inform the tribunal.

3)The obligation to appear periodically before the tribunal or the authority designated.

4)The prohibition against leaving, without authorization, the country, the locality in which he resides or the territorial area fixed by the tribunal.

5)The prohibition against attending certain meetings or visiting certain places.

6)The prohibition against communicating with specific persons, provided that the right of defense is not affected.

7)The posting of adequate economic security, by the accused person himself or by another person, by means of deposit of money, securities, creation of a pledge or mortgage, attachment or delivery of property, or the bond of one or more suitable persons.

The tribunal shall order the measures and the communications necessary to guarantee their compliance, and it may also avail itself of any telematic control means, if in its judgment the circumstances of the case so warrant. In no case shall these measures be used distorting their purpose nor shall measures whose compliance would be impossible be imposed. In particular, it shall avoid the imposition of economic security when the state of poverty or lack of means of the accused person prevent its posting.

In special cases, all coercive measures may also be dispensed with, when the mere promise of the accused person to submit to the procedure suffices to eliminate the danger of flight or of obstruction of the investigation of the truth.

None of the substitute measures listed above may be granted in proceedings conducted against repeat offenders or habitual criminals or for the crimes of intentional homicide, murder, parricide, aggravated rape, qualified rape, rape of a minor under twelve years of age, abduction or kidnapping in all its forms, sabotage, aggravated robbery, to the repeat offender of the crimes of illegal carrying of firearms for civil and/or sporting use; possession or carrying of a firearm with an altered, erased register number or not legally marked by DIGECAM.

Also excluded from substitute measures are the crimes included in Chapter VII of Decree No. 48-92 of the Congress of the Republic, Law against Drug Trafficking.

The substitute measures ordered must bear a relation to the seriousness of the charged crime. In the case of crimes against property, the application of the seventh paragraph of this article must bear a proportional relation to the damage caused.

In proceedings conducted for the crimes of tax fraud, customs fraud and customs smuggling, none of the substitute measures referred to in this article may be granted, except that of posting economic security, *provided that it is not less than one hundred percent (100%) of the taxes withheld or defrauded, as well as the surcharges, fines and compensatory interest, as determined by the tax administration at the request of the Judge.

In the proceedings conducted for the crimes of: a) Adulteration of medicines; b) Production of falsified medicines, falsified pharmaceutical products, medical devices and falsified surgical medical material; c) Distribution and commercialization of falsified medicines, falsified pharmaceutical products, adulterated medicines, medical devices and falsified surgical medical material; and d) Clandestine establishments or laboratories, none of the substitute measures referred to in this article may be granted.

When dealing with acts arising from traffic accidents, those who cause them shall remain in immediate liberty, under house arrest.

This measure may be established by means of a record drawn up by a Notary, Peace Judge or by the Chief of Police himself who has knowledge of the matter; these public officials shall be responsible if they unnecessarily delay the granting of the measure. The interested party may request the presence of a prosecutor of the Public Prosecutor's Office in order to expedite the granting of said measure. In the record, the personal identification data of both the beneficiary and his guarantor shall be stated, who shall identify themselves with their neighborhood identity card or their motor-vehicle driver's license, and the address of the residence of both shall be registered.

The competent Judge of First Instance, upon receiving the case file, shall examine and determine the duration of the measure, and may order its substitution with any of those contemplated in the preceding article.

A person who at the time of the act is in any of the following situations shall not enjoy the benefit:

1)In a state of drunkenness or under the effect of drugs or narcotics.

2)Without a valid driving license.

3)Having failed to provide aid to the victim, despite having been in a position to do so.

4)Having fled or hidden to avoid his prosecution.

In cases in which the liable person was the driver of collective passenger transport, school transport or cargo transport, in general any commercial transport, this benefit may be granted to him, provided that payment of civil liabilities is sufficiently guaranteed before the respective Trial Court of First Instance. The guarantee may be established by means of a first mortgage, bond provided by an entity authorized to operate in the country or by means of the deposit of a sum of money in the Treasury of the Judicial Branch, which the judge shall set in each case.

Prior to the execution of these measures, a record shall be drawn up in which shall be stated:

1)The notification to the accused person.

2)The identification of the persons who intervene in the execution of the measure and the acceptance of the function or of the obligation assigned to them.

3)The domicile or residence of said persons, with indication of the circumstances that require the suspect or accused person not to be absent from the same for more than one day.

4)The designation of a special place to receive notifications, within the radius of the tribunal.

5)The formal promise of the accused person to appear in response to the summonses.

The record shall state the instructions on the consequences of the failure to appear of the accused person.

In cases where the accused person hides or is in a state of default, the judge, even without a prior declaration, may order their detention.

If preventive imprisonment has already been ordered, it shall suffice to refer to it and state the reason giving rise to the current need for incarceration.

When the accused person is apprehended, they shall be informed of the act attributed to them and of the authority that has ordered their detention or to whose disposition they are consigned.

The deprivation of liberty shall end:

1)When new evidentiary elements demonstrate that the grounds on which it was based do not concur or render its substitution by another measure advisable.

2)When its duration exceeds or is equivalent to the expected sentence, considering, including, the possible application of penal rules relating to the suspension or remission of the penalty, or to early liberty.

3)When its duration exceeds one year; but if a conviction judgment pending appeal has been issued, it may last three more months.

The chambers of the Court of Appeals of the Republic, in cases submitted to their knowledge at the request of the Peace judges, First Instance judges or Sentencing Tribunals or the Public Prosecutor's Office, shall take cognizance of, and where appropriate authorize as many times as necessary, the extension of the time limits for preventive imprisonment established by the Code, in all cases setting the time limit of the extension granted.

In no proceedings subject to the jurisdiction of the Peace Trial Courts may the extension referred to in this article be granted more than twice.

In proceedings in which a conviction judgment has been issued, preventive imprisonment may be prolonged during the processing and decision of the special appeal.

The Supreme Court of Justice, in cases submitted to its knowledge, on its own initiative or at the request of the Chambers of the Court of Appeals or the Public Prosecutor's Office, may authorize, in cases within its jurisdiction, that the foregoing time limits be extended as many times as necessary, setting the specific duration of the extensions. In this case it may indicate the necessary measures to expedite the processing of the procedure and the examination of the imprisonment shall remain under its charge.

The tribunal, where applicable, shall fix the amount and the type of the security, shall decide on the suitability of the guarantor, according to free assessment of the circumstances of the case. At the request of the tribunal, the guarantor shall justify their solvency.

When the security is provided by another person, that person shall assume jointly and severally with the accused person the obligation to pay, without benefit of excussion, the sum fixed by the tribunal.

The accused person and the guarantor may substitute the security for another equivalent one, with prior authorization of the tribunal.

In cases of default or when the accused person evades execution of the penalty, a time limit of not less than five days shall be set for him to appear or to serve the sentence. The accused person and the guarantor shall be notified thereof, warning them that, if the former does not appear, does not serve the imposed sentence, or does not prove that he is prevented by force majeure, the security shall be executed upon expiry of the time limit.

Upon expiry of the time limit, the tribunal shall order, as applicable, the public auction sale of the property constituting the security through a banking institution or the attachment and immediate execution of property of the guarantor, by way of enforcement in a separate record under the procedure established in the Civil and Commercial Procedural Code. The liquid sum of the security shall be transferred to the Treasury of the Judicial Branch.

The security shall be cancelled and the property affected by the guarantee shall be returned, provided that they have not been executed, when:

1)The accused person is again remanded to preventive imprisonment.

2)The decision to constitute securities is revoked, whether or not they are replaced by another measure.

3)By final judgment the accused is acquitted or the proceedings are dismissed.

4)Execution of the penalty depriving of liberty commences, or it is not to be executed.

5)Full payment of the fine is verified.

If the requirements for issuing a pretrial detention order are not met, the tribunal shall declare lack of merit and shall not apply any coercive measure, unless absolutely essential to prevent the risk of flight or obstruction of the ascertainment of the truth, in which case it may only order one of the provided substitute measures for pretrial detention.

The confinement of the accused person in an assistance facility may be ordered when the following requirements concur:

1)The existence of sufficient elements to reasonably sustain that the accused person is, with probability, the perpetrator of an unlawful act or a participant therein.

2)Verification, by opinion of two experts, that he suffers from a serious alteration or insufficiency of his mental faculties that render him dangerous.

3)The existence of the danger of flight.

4)The prior conduct of the accused person; and

5)Having six or more admissions to detention centers.

Persons held in preventive detention shall be housed in special establishments, different from those used for persons convicted to a penalty involving deprivation of liberty, or at least in places absolutely separate from those provided for the latter, and shall be treated at all times as innocent persons undergoing imprisonment for the sole purpose of ensuring the correct development of the criminal procedure.

In particular, prison regulations shall conform to the following principles:

1)Lodging places and services guaranteeing the minimum comforts for life and human coexistence shall be healthy and clean.

2)The accused person shall freely dispose of their time and only such restrictions as are essential to enable coexistence shall be imposed on them.

3)The accused person shall enjoy, within the establishment, freedom of movement, to the extent permitted by the facilities.

4)The accused person may keep with them reading and writing materials, books, magazines and newspapers, without any restriction.

5)Epistolary communication shall be free, except in case of serious suspicion of preparation of escape or of continuation of criminal activity.

6)The health of the inmates shall be adequately cared for, who, in case of illness, shall have the right to free medical assistance, including from a physician of their confidence, at their own expense.

7)If the accused person so requests, religious assistance shall be facilitated to them, according to their beliefs.

8)An accused person who works shall have the right to a wage, which they shall receive monthly.

9)The accused person may periodically enjoy privacy with their partner.

The tribunal shall monitor respect for the rights and compliance with the obligations imposed in the preceding article. It may also designate a judicial inspector with sufficient powers to monitor compliance with the established regime.

The order imposing a coercive measure or rejecting it is revocable or modifiable, even on its own initiative.

The accused person and their defense counsel may request examination of the imprisonment and confinement, or of any other personal coercive measure that may have been imposed, at any time during the procedure, provided that the original circumstances have changed. The examination shall take place in an oral hearing, to which all intervening parties shall be summoned. The tribunal shall decide immediately in the presence of those who appear. The hearing or the decision may be interrupted for a brief period in order to conduct a summary inquiry.

The attachment of property and the other coercive measures to guarantee the fine or reparation, their incidents, proceedings, execution and third-party claims, shall be governed by the Civil and Commercial Procedural Code. In crimes brought by the Tax Administration, what is prescribed in Article 170 of the Tax Code shall apply.

In these cases the first-instance judge or the tribunal hearing them shall be competent.

They shall be appealable only when the aforementioned law allows it and with the effect it provides.

In the cases of crimes punished with a fine, the Public Prosecutor's Office may request the attachment of property or another substitute measure, to secure payment.

The accused person, their defense counsel and the third-party civil defendant may request from the complainant and from the foreign or transient civil plaintiff, in the manner provided for by the Code of Civil and Commercial Procedure, security for costs, damage and losses.