The IACHR found a violation of the requirements of the American Convention on Human Rights regarding the right to citizenship, the prohibition of collective expulsions from the country and the principle of non-discrimination.

Заголовок: The IACHR found a violation of the requirements of the American Convention on Human Rights regarding the rig Сведения: 2020-06-20 04:43:07

The ruling of the Inter-American Court of Human Rights of August 28, 2014 in the case of Expelled Dominicans and Haitians v. Dominican Republic v. Dominican Republic (Series C, No. 282).

The applicants were assisted in preparing a complaint to the Inter-American Commission on Human Rights (Washington, USA).

Subsequently, the Inter-American Commission on Human Rights submitted the applicants' complaint to the Inter-American Court of Human Rights (San Jose, Costa Rica) for consideration. Then the Dominican Republic was communicated.

In the case, the complaint was successfully considered on the issue of the right to citizenship, the prohibition of collective expulsions from the country, and the principle of non-discrimination.


Circumstances of the case


In 1999 and 2000, members of six family groups were detained by the authorities of the Dominican Republic and were expelled to Haiti through collective simplified proceedings. Official identity cards of some of the victims were destroyed or ignored by Dominican authorities at the time of expulsion. In other cases, victims born in the Dominican Republic were not registered at all and did not have documents proving their citizenship. Some of the closest relatives of those who were expelled were also granted victim status in the present case. Some of the victims were Haitians, others were born in the Dominican Republic. Some were children during the events in question.

The Inter-American Court of Human Rights found that at the time of the events, Haitians and people of Haitian descent in the Dominican Republic usually lived without documents and in poverty. They also became frequent victims of derogatory or discriminatory treatment, even by public authorities, which increased the vulnerability of their situation. For at least 10 years in the 1990s, there has been a system of expulsions from the country of Haitians and people of Haitian descent, including collective expulsions based on discriminatory grounds.

The constitutional provisions in force when the victims were born enshrined the principle of ius soli (Ius soli (lat.) - right of the soil) to acquire citizenship of the Dominican Republic, with the exception, inter alia, of children of foreigners who were “in transit” in the country. In 2005 and 2013, based on these and previous constitutional provisions, the Supreme Court and the Constitutional Court of the Dominican Republic interpreted that in the case of foreigners in an illegal migration situation this violation does not provide an opportunity for their children born in the Dominican Republic to acquire citizenship of the republic, based on the exception associated with the concept of "transit". Thus, the decision of the Constitutional Court TC / 0168/13 2013 introduced a general policy of administrative checks to identify "foreigners" registered in Dominican birth certificates starting in 1929. In 2014, Law No. 169 allowed persons born in the Dominican Republic whose parents were foreigners in an illegal migration situation to acquire citizenship of the Dominican Republic through “naturalization”.


QUESTIONS OF LAW


(a) Substantive provisions of the American Convention on Human Rights. (i) Regarding compliance with the requirements of Articles 3, 18–20, and 24 (Right to Recognize a Legal Entity, Right to Name, Rights of a Child, Right to Citizenship, and Equal Protection of Law. In addition, the Inter-American Court of Human Rights examined the right to identity , which is not directly included in the American Convention on Human Rights, based on the relation of this right to the rights to recognition of a legal entity, to a name and citizenship) in conjunction with paragraph 1 of Article 1 and Article 2 (Obligations to respect and guarantee rights without discrimination and accept national law) of the American Convention on Human Rights. The expulsion of persons who are to be considered citizens of the expelling state, ignoring their identity cards or their nationality, violates their right to identity and, therefore, their right to be recognized as a legal entity, to their name and citizenship, and, when applicable, the rights of the child . In addition, since expulsion was the result of prejudice based on personal characteristics, the obligation to respect rights without discrimination was also violated.

Article 20 of the American Convention on Human Rights recognizes the right to citizenship (the American Convention on Human Rights includes two aspects of the right to citizenship: the right to citizenship in terms of providing a person with basic legal protection for a number of legal relations by establishing his relationship with a particular state and protecting the individual from arbitrary deprivation of citizenship, as this would deprive him of all political and those civil rights that are based on the citizenship of the person). Although the definition of requirements for acquiring citizenship continues to be within the internal jurisdiction of states, when regulating the provision of citizenship, states should take into account their obligations (a) to prevent, avoid and reduce statelessness and (b) provide everyone with equal and effective protection from law without discrimination.

Accordingly, there is no justification for the differential treatment of persons born in the state based on the different situation of their foreign parents as legal or illegal migrants. A simple reference to the “illegal situation” of the parents of interested parties is not enough when assessing this difference, its reasonableness and proportionality. The Inter-American Court of Human Rights found no reason to deviate from its opinion in the ruling on the Girls Yean and Bosico v. Dominican Republic [The Girls Yean and Bosico v. Dominican Republic] stating that “the migratory status of a person is not passed on to his children” (The Girls Yean and Bosico v. Dominican Republic case (preliminary objections, merits, compensations, judicial costs and expenses), Ordinance of 8 September 2005, Series C, No. 130, § 156). Thus, the introduction of the standard of unlawful constancy of parents as an exception for acquiring citizenship on the basis of the ius soli principle was discriminatory in the Dominican Republic when it was applied as part of a discriminatory attitude towards Dominicans of Haitian descent.

In addition, the state cannot establish rules that could lead to persons born on its territory at risk of becoming stateless. The state’s assertion that another country has a legal system that would allow such persons to acquire citizenship is not enough; rather, it should take measures to verify that these persons actually meet the requirements for being able to acquire this citizenship.

Legal certainty regarding the use of citizenship is undermined as a result of a retroactive policy that establishes additional requirements based on a judicial interpretation of constitutional provisions in force at the time of the birth of the persons concerned and not explicitly incorporating such requirements.

Even if a law or measure of a general nature was not directly applied to the alleged victims, it may be appropriate to consider the law or measure in the context of a litigation if, depending on the circumstances, the law or measure may lead to a deterioration of their rights. The provisions contained in Law N 169-14, which establish that persons who should automatically obtain citizenship as a fundamental right, since they were born on the territory of the state, can acquire it through "naturalization", consider these persons as foreigners and create obstacles for them the exercise of their right to citizenship.


RESOLUTION


The case has violated the requirements of Articles 3, 18 - 20 and 24 in conjunction with paragraph 1 of Article 1 and Article 2 of the American Convention on Human Rights (pronounced unanimously).

2 and guarantee rights without discrimination) of the American Convention on Human Rights. It is unreasonable, therefore, to arbitrarily deprive a person of liberty on the basis of a racial attribute, because he or she is undoubtedly a foreigner or a person of foreign origin.

The completion of the deprivation of liberty of the victims did not occur due to their release on the territory of the Dominican Republic, but when representatives of the state expelled them from the territory of the Dominican Republic. The expulsion of a person without prior delivery to the competent authority, which, if necessary, could decide on the possible admissibility of their release, constitutes a violation of the guarantee of judicial control over detention.

Basic guarantees of due process must be respected during proceedings, which may lead to expulsion from the country. Since the victims were not provided with the basic guarantees that they relied on as persons to be expelled, the right to a fair trial was violated.


RESOLUTION

 

The case has violated the requirements of Articles 7, 8, 19, 22 and 25 in conjunction with paragraph 1 of Article 1 of the American Convention on Human Rights of the Convention (pronounced unanimously).

(iii) The Inter-American Court of Human Rights also unanimously found violations of Articles 11 and 17 (Rights to protect honor and dignity and the protection of the family) in conjunction with Article 19 and paragraph 1 of Article 1 of the American Convention on Human Rights and decided that the Inter-American Court for human rights is not required to rule on articles 5 and 21 (Rights to the inviolability of the person and property) of the American Convention on Human Rights.

(b) Procedural aspects of the proceedings before the Inter-American Court of Human Rights. (i) evidence. Although the absence of documents or certificates of administrative or judicial procedures usually indicates the absence of facts that should be supported by such means, in the present case this is not the case when such absence is part of the factual disputes under consideration and is consistent with the contextual situation established in the decision.

The absence of evidence derived from the actions or policies of the state cannot be used as a basis to consider the facts alleged by the alleged victims as unproven. The assessment of evidence in this sense would be contrary to the principle that the courts are obliged to reject any argument based on the negligence of the party representing it (nemo auditur propriam turpitudinem alegans (Nemo auditur propriam turpitudinem alegans (lat.) - no one listens to his own immorality)).

It may be a disproportionate measure to undeniably place the burden of proof on the alleged victims, documentary or other evidence, the occurrence of facts that are associated with the inaction of the state.

(ii) Application of Article 53 of the Rules of Procedure (Protection of alleged victims, witnesses, experts, representatives and legal advisers. Prohibition of prosecution or reprisal for statements or actions before the Inter-American Court of Human Rights).

States have the right to institute proceedings to punish or annul acts contrary to their laws.

However, those who enter the proceedings in the Inter-American Court of Human Rights must be sure that they will not be harmed because of this. The initiation of administrative or judicial proceedings at the national level against any alleged victims due to the fact that the state was convicted in the international sphere may impair the safety of their procedural activities. The Inter-American Court of Human Rights cannot consider that the proceedings instituted in connection with the violation of Article 53 of the Rules of Procedure are lawful, therefore, it cannot serve as an obstacle to compliance with its ruling.

(c) Compensation. The Inter-American Court of Human Rights ordered the state to (a) annul certain administrative investigations and trials, (b) provide some of the victims with Dominican Republic citizenship and identification documents, (c) ensure that the Haitian victim can live in the Dominican Republic (given that her daughter, also a victim, is a Dominican woman and is still a child), (d) publish this Regulation, (e) organize educational programs, (f) take measures to ensure that regulation TC / 0168/13 is terminated and specific articles of Law N 169-14, (g) repeal any rules, practices, decisions or interpretations that establish or make the illegal migration situation of foreign parents a reason for refusing Dominican citizenship to persons born on the territory of the Dominican Republic, (h) accept the necessary measures to ensure that everyone born in the territory of states a, could be registered immediately after their birth, regardless of their origin or origin and the status of their parents as migrants, (i) pay certain amounts in compensation for pecuniary and non-pecuniary damage, reimburse court costs and expenses, make payments to the Fund legal assistance to victims.

 

 

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