I/A Court H.R., Case of the Girls Yean and Bosico v. Dominican Republic. Preliminary Objections, Merits, Reparations and Costs. Judgment of September 8, 2005. Series C No. 130.

Non official brief

This summary is also published in the website of the Council of Europe in the following link:  https://www.venice.coe.int/files/Bulletin/B2006-2-e.pdf

 

Headnotes:

 

The right to nationality is a non-derogable fundamental human right for all human beings.

 

Lack of nationality and statelessness deprive stateless persons of their recognised legal personality, denying them fundamental civil and political rights, placing them in an extremely vulnerable position and hindering their access to basic rights, such as housing, education and health care.

 

The right to a name is a fundamental and essential component of the identity of an individual for his recognition by society.

 

States must protect a person's right to a name, and put in place the necessary measures to facilitate the registration of an individual, immediately after his birth.

 

Nationality shall be granted at birth or upon application. Such an application may not be rejected arbitrarily.

 

A person's migratory status cannot be a condition for the State to grant or refuse nationality; neither can it be transmitted to his children.

 

The requirements needed to prove that somebody was born within a State's territory should be reasonable, clear and objective, and should not present an obstacle to the enjoyment of the right to nationality.

 

Summary:

 

I. On 11 July 2003, the Inter-American Commission on Human Rights asked the Court to decide whether the Dominican Republic had infringed various . These included Article 3 ACHR (the right to a legal personality), Article 8 ACHR (the right to a fair trial), Article 19 ACHR (rights of the child), Article 20 ACHR (right to nationality), Article 24 ACHR (right to equal protection), and Article 25 ACHR (right to judicial protection). The above articles were to be examined against the background of Article 1.1 ACHR (obligation to respect rights) and Article 2 ACHR (domestic legal effects). It was suggested that the Dominican Republic's infringements were to the detriment of two children, Dilcia Oliven Yean and Violeta Bosico Cofi. The petitioners alleged violation of other articles of the Convention, including Article 5 ACHR (right to humane treatment), Article 12 ACHR (freedom of conscience and religion), Article 17 ACHR (rights of the family), Article 18 ACHR (right to a name) and Article 26 ACHR (progressive development), also in relation to Articles 1.1 and 2 ACHR. 

 

The Constitution of the Dominican Republic stipulates that all those born on its territory are Dominicans, under the principle of ius soli, apart from children of foreigners who are in transit. Dilcia Yean and Violeta Bosico were both born in the Dominican Republic, in 1996 and 1985, respectively. On 5 March 1997, the two girls applied for late registration of their birth before the competent Civil Status Registry Office. At first, their application was denied. Eventually, on 25 September 2001, the State granted birth certificates to the two children. The Dominican Republic had left the two girls stateless for over four years, and arbitrarily denied them their legal personality. They were obliged to live on a long-term basis in an illegal situation, which left them extremely vulnerable and with limited access to housing, health care, sanitation and education services. Violeta Bosico was unable to attend regular day school for one year as she did not have an identity document, and instead had to attend adult evening classes, which were not appropriate for her needs. This caused suffering, uncertainty, anxiety and insecurity for both girls, their mothers and Violeta's sister.

 

II. By a judgment of 8th September 2005, the Court rejected the three preliminary objections filed by the State of non-exhaustion of domestic remedies, non-compliance with a friendly settlement, and lack of jurisdiction ratione temporis.

 

The Court also held that the State violated Articles 3, 18, 20 and 24 ACHR, in the context of Articles 19 and 1.1 ACHR, to the detriment of Dilcia Yean and Violeta Bosico. It was also in breach of Article 5 ACHR in the context of Article 1.1 ACHR, to the detriment of the girls' mothers and Violeta's sister.

 

The Court ordered the State to acknowledge its international responsibilities publicly and to apologise to the victims. The State was also ordered to adopt legal and administrative measures, under the Convention, with a view to the regulation of the pprocedure and requirements for acquiring Dominican nationality based on a late declaration of birth. The Court also ordered the State to recompense the girls for moral damage and to pay their costs and expenses.

 

Judge Cançado Trindade wrote a separate opinion.