I/A Court H.R., Case of expelled Dominicans and Haitians v. Dominican Republic. Preliminary Objections, Merits, Reparations and Costs. Judgment of August 28, 2014. Series C No. 282.

Non official brief

 

[This summary was developed by the Secretariat of the Inter-American Court of Human Rights. It relates only to the merits and reparations aspects of the judgment. A more detailed, official abstract (in Spanish only) is available on that Court’s website: http://www.corteidh.or.cr/.] 

 

Facts – In 1999 and 2000, members of six family groups were apprehended by the Dominican authorities and summarily expelled to Haiti. The official identity documents of some of the victims were destroyed or disregarded by Dominican State authorities at the time of the expulsion. In other cases, victims born in the Dominican Republic had never been registered and did not possess documentation proving their nationality. Some of the next of kin of those who were expelled were also considered victims in this case. Some of the victims were Haitians and others were born in Dominican territory. Some were children at the time of the events.

 

The Inter-American Court established that at the time of the events, Haitians and individuals of Haitian descent in the Dominican Republic were usually undocumented and living in poverty. They were also frequent victims of pejorative or discriminatory treatment, even by State authorities, which increased their situation of vulnerability. At least during an approximate time of a decade, in the 1990s, there was a systematic pattern of expulsions of Haitians and those of Haitian descent, including collective expulsions, based on discriminatory conceptions.

 

The constitutional provisions in force when the victims were born established the principle of ius soli for the acquisition of Dominican nationality, except for, inter alia, the children of aliens who were “in transit” in the country. In 2005 and 2013, based on these and on prior constitutional provisions, the Supreme Court and the Constitutional Court of the Dominican Republic interpreted that in the case of aliens in an irregular migratory situation, this irregularity prevented their children born in Dominican territory from obtaining Dominican nationality based on the “in transit” exception. Thus, the Constitutional Court judgment TC/0168/13 of 2013 ordered a general administrative review policy to detect “foreigners” registered in Dominican birth records as of 1929. In 2014, Law No. 169 allowed individuals born in Dominican territory whose parents were aliens in an irregular migratory situation to acquire Dominican nationality by “naturalization.”

 

Law

(a)  Substantive provisions of the American Convention on Human Rights (ACHR)

(i)          Articles 3, 18, 19, 20 and 24[1], in relation to Articles 1(1) and 23 – the expulsion of individuals who should be considered nationals of the expelling State, disregarding their identity documentation or their nationality, violates their right to identity and, in relation to this, their rights to juridical personality, to a name, and to nationality, as well as, when applicable, the rights of the child. Furthermore, since the expulsion was the result of prejudicial treatment based on personal characteristics, the obligation to respect rights without discrimination was also violated.

Article 20 of the ACHR[2] recognizes the right to nationality[3]. Though the determination of the requirements for acquiring nationality continues to be subject to the internal jurisdiction of States, when regulating the granting of nationality, States must take into account (a) their obligation to pre vent, avoid and reduce statelessness, and (b) their obligation to provide each individual with equal and effective protection of the law without dis- crimination.

 

Accordingly, there is no justification per se for a differential treatment of persons born in the territory of a State based on the different situation of their foreign parents as regular or irregular mi- grants. The mere allusion to the “illegal situation” of the parents of those concerned is insufficient when assessing the purpose of the distinction and its reasonableness and proportionality. The Court found no reason to depart from its opinion in its judgment in the case of the Girls Yean and Bosico v. Dominican Republic that “the migratory status of a person is not transmitted to his or her children”.[4] Thus, the introduction of the standard of irregular permanence of the parents as an exception to the acquisition of nationality by ius soli was discriminatory in the Dominican Republic when it was applied in a discriminatory context towards Dominicans of Haitian origin.

 

Furthermore, a State may not establish regulations that could result in persons born in its territory running the risk of becoming stateless. It is not sufficient that the State argues that another country has a legal system that would allow such persons to acquire nationality; rather it must take measures to verify that, in fact, those persons meet the requirements to be able to obtain that nationality.

 

Legal certainty regarding the enjoyment of nationality is impaired as a result of retroactive policies that include further requirements based on judicial interpretations of constitutional provisions in force at the time of the birth of the individuals concerned which did not expressly include such requirements.

 

Even if a general law or measure has not been applied directly to the alleged victims, it may be pertinent to examine it in the context of a contentious case if, according to the circumstances, it may result in an impairment of their rights. Provisions such as those contained in Law No. 169-14, establishing that individuals who should obtain nationality automatically as a basic right because they were born in the territory may acquire it by “naturalization”, treat those persons as aliens and subject them to an impediment to the enjoyment of their right to nationality.

 

Conclusion: violation (unanimously).

(ii)             Articles 7, 8, 19, 22 and 25,[5] in relation to Article 1(1)[6]– It is unreasonable, and therefore arbitrary, to deprive a person of liberty based on racial profiling because he or she is apparently a foreigner or of foreign descent.

 

The end of the deprivation of liberty of the victims was not brought about by their release in Dominican territory, but occurred when State agents expelled them from Dominican territory. The expulsion of a person without being brought before a competent authority who could decide, as appropriate, on the possible admissibility of their release, constituted a violation of the guarantee of judicial control of detention. The basic guarantees of due process must be observed in proceedings that may result in expulsion. As the victims were not accorded the basic guarantees that corresponded to them as persons subject to expulsion, the right to a fair trial was violated.

 

Conclusion: violation (unanimously).

(iii)            The Inter-American Court, unanimously, also determined violations of Articles 11 and 17,[7] in relation to Articles 19 and 1(1), and found that it was not incumbent on the Court to rule on Articles 5 and 21.[8]

 

(b)  Procedural aspects of the proceedings before the Inter-American Court

 

      (i)    Evidence – Even though the absence of documentation or of certifications of administrative or judicial procedures would normally indicate the inexistence of facts that should be substantiated by such means, this is not the case when such absence is part of the factual controversies examined and is consistent with a contextual situation established in the judgment.

 

A lack of evidence derived from State actions or policies cannot be used as grounds for considering that facts alleged by the alleged victims have not been proved. An assessment of the evidence in that sense would be contrary to the principle that the courts have the obligation to reject any argument based on the negligence of the party presenting it (nemo auditur propiam turpitudinem alegans).

 

It may be disproportionate to place the burden of proving irrefutably, by documentary or other evidence, the occurrence of facts that relate to the State’s omissions exclusively on the alleged victims.

(ii)          Application of Article 53 of the Rules of Procedure[9] – States have the power to institute proceedings to penalize or to annul acts contrary to their laws. However, those who intervene before the Inter- American Court must be assured that they will not be prejudiced because of this. The institution of domestic administrative or judicial proceedings against any of the alleged victims due to the fact that the State is being judged in the international sphere may impair the security of their procedural activity. The Court cannot consider that proceedings arising from a violation of Article 53 of the Rules of Procedure are valid; hence they cannot constitute an impediment to compliance with its judgment.

 

(c)  Reparations – The Court ordered the State to (a) annul certain administrative investigations and judicial proceedings; (b) provide some of the victims with Dominican nationality and identity documents; (c) take measures to ensure that a Hai- tian victim could live in the Dominican Republic (considering that her daughter, also a victim, was Dominican and still a child); (d) publicize the judgment; (e) implement training programs; (f ) take measures to prevent judgment TC/0168/13 and specific articles of Law No. 169-14 from continuing to have legal effects; (g) annul any norm, practice, decision or interpretation that established or had the effect of making the irregular situation of foreign parents the basis for denying Dominican nationality to individuals born in the territory of the Dominican Republic; (h) adopt the necessary measures to ensure that all those born in the State’s territory can be registered immediately after their birth, regardless of their descent or origin and of the migratory situation of their parents; and (i) pay certain sums as compensation for pecuniary and non-pecuniary damage, and reimburse costs and expenses and the Victims’ Legal Assistance Fund.

 

 


[1] Rights to recognition of juridical personality, to a name, of the child, to nationality and to equal protection of the law. In addition, the Court examined the right to identity, which is not expressly included in the American Convention on Human Rights, based on its relationship to the rights to juridical personality, to a name and to nationality.

 

[2] Obligations to respect and ensure rights without discrimination, and to adopt domestic legal provisions.

 

[3] The American Convention includes two aspects of the right to nationality: the right to a nationality from the perspective of endowing the individual with basic legal protection for a series of relationships by establishing his connection to a specific State, and the protection of the individual against the arbitrary deprivation of his nationality

because this would deprive him of all his political rights and of those civil rights that are based on a person’s nationality.

 

[4] Case of the Girls Yean and Bosico v. Dominican Republic (Preliminary Objections, Merits, Reparations and Costs), judgment of 8 September 2005, Series C No. 130, § 156.  

 

[5] Rights to personal liberty, to judicial guarantees, of the child, to freedom of movement and residence, and to judicial protection.  

 

[6] Obligation to respect and ensure rights without discrimination.  

 

[7] Rights to protection of honour and dignity, and to protection of the family.  

 

[8] Rights to personal integrity and to property.

 

[9] Protection of alleged victims, witnesses, expert witnesses, representatives and legal advisers. Prohibition to prosecute or take reprisals based on declarations or actions before the Inter- American Court.