I/A Court H.R., Case of the Pacheco Tineo family v. Bolivia. Preliminary Objections, Merits, Reparations and Costs. Judgment of November 25, 2013. Series C No. 272.

Non official brief

 This summary is also published in the website of the Council of Europe in the following link: www.venice.coe.int/files/Bulletin/B2014-3-e.pdf

 

Headnotes:

In certain cases in which migratory authorities take decisions that affect fundamental rights, such as personal liberty, in proceedings such as those that may result in the expulsion or deportation of aliens, the State cannot issue punitive administrative or judicial decisions without respecting certain minimum guarantees, the content of which is substantially the same as those established in Article 8.2 ACHR, and so they are applicable as appropriate.

 

Under the Inter-American System, the right of any alien, and not only refugees or asylees, to non-refoulement is recognised, when his life, integrity and/or freedom are in danger of being violated, whatsoever his legal status or migratory situation in the country where he is. Consequently, when an alien alleges before a State that he will be in danger if he is returned, the competent authorities of that State must, at the very least, interview that person and make a prior or preliminary assessment, in order to determine whether or not this danger exists if he or she is deported. This entails respecting said minimum guarantees, as part of the opportunity to explain the reasons why he or she should not be expelled and, if this danger is verified, he or she should not be returned to his country of origin or the one where the danger exists.


Once a State has declared refugee status, this protects the person to whom this has been recognised beyond the borders of that State, so that other States that the said person enters must take into account this status when adopting any measure of a migratory character in his regard and, consequently, guarantee a duty of special care in the verification of this status and in the measures that it may adopt.


Asylum seekers cannot be turned back at the border or expelled without an adequate and individualised analysis of their application. Before returning anyone, States must ensure that the person who requests asylum is able to access appropriate international protection by means of fair and efficient asylum proceedings in the country to which they would be expelling him. States also have the obligation not to return or deport a person who requests asylum where there is a possibility that he may risk persecution, or to a country from which he may be returned to the country where he or she suffered this risk (the so-called «indirect refoulement»).


The right to seek and to receive asylum established in Article 22.7 ACHR, read in conjunction with Articles 8 and 25 ACHR, ensures that the person applying for refugee status must be heard by the State to which he or she applies, with due guarantees and in the corresponding proceeding. Consequently, in proceedings relating to a request for recognition of refugee status or in proceedings that may lead to the expulsion or deportation of an applicant for this status or of a refugee, owing to the nature of the rights that could be affected by an erroneous determination of the danger or an unfavourable answer, the guarantees of due process are applicable, as appropriate, to this type of proceeding, which is usually of an administrative character. Thus, any proceeding relating to the determination of the refugee status of a person entails an assessment and decision on the possible risk of affecting his most basic rights, such as life, and personal integrity and liberty. In this way, even if States may determine the proceedings and authorities to implement that right, in application of the principles of non-discrimination and due process they must ensure predictable proceedings, as well as coherence and objectivity in decision-making at each stage of the proceedings to avoid arbitrary or decisions.


Asylum seeks must have access to proceedings to determine this status that permit a proper examination of their request in keeping with the guarantees contained in the American Convention and in other applicable international instruments, which, in cases such as this one, entail the following obligations for the States:

 

a.   they must guarantee the applicant the necessary facilities, including the services of a competent interpreter and access to legal assistance and representation, in order to submit their request to authorities. Thus, the applicant must receive the necessary guidance concerning the procedure to be followed, in words and in a way that he can understand and, if appropriate, he should be given the opportunity to contact a UNHCR representative;

 

b.   the request must be examined, objectively, within the framework of the relevant procedure, by a competent and clearly identified authority, and requires a personal interview;

 

c.     the decisions adopted by the competent organs must be duly and expressly founded;

 

d.     in order to protect the rights of applicants who may be in danger, all stages of the asylum procedure must respect the protection of the applicant’s personal information and the application, and the principle of confidentiality;

 

e.   if the applicant is denied refugee status, he should be provided with information on how to file an appeal under the prevailing system and granted a reasonable period for this; and

 

f.    the appeal for review must suspend proceedings and must allow the applicant to remain in the country until the competent authority has adopted the required decision, and even while the decision is being appealed, unless it can be shown that the request is manifestly unfounded.

 

Article 19 ACHR, in addition to granting a special protection to the rights recognised therein, establishes a State obligation to respect and ensure the rights recognised to children in other applicable international instruments, such as  Articles 12 and  22 of the Convention on the Rights of the Child. The special protection derived from Article 19 should be extended to the judicial or administrative proceedings in which a decision is taken on a child’s rights, which entails a more rigorous protection of Articles 8 and 25 ACHR. Furthermore, the Court has already established in other cases that there is a relationship between the right to be heard and the best interests of the child, and it is this relationship that governs the essential role of children in all decisions that affect their life.


The right of children to express their opinions and to play a significant role is also important in the context of asylum proceedings, the scope of which may depend on whether the child is an applicant, regardless of whether or not the child is accompanied and/or separated from his or her parents or the persons responsible for taking care of him or her.


When the applicant for refugee status is a child, the principles contained in the Convention on the Rights of the Child must guide both the substantive and the procedural aspects of the decision on the child’s request for refugee status. Thus, when children are the applicants, they must enjoy specific procedural and probative guarantees to ensure that fair decisions are taken when deciding their requests for refugee status, which requires the establishment and implementation of proceedings that are appropriate and safe for children and of an environment that creates trust at all stage of the asylum procedure. Also, and under this same principle, if the main applicant is excluded from refugee status, the family members have the right to have their own requests evaluated independently. In addition, if an applicant for refugee status receives protection, other members of the family, particularly the children, may receive the same treatment or benefit from that recognition, based on the principle of family unification. In the proceeding to decide refugee status, the applicant’s family members may be heard, even if there are children among them. In each case, it is for the authorities to evaluate the need to hear them based on the contents of the application.


In certain circumstances, the separation of children from their parents may endanger their development and survival, which must be ensured by the State as established in Article 19 ACHR and in Article 6 of the Convention on the Rights of the Child, especially by the protection of the family and the absence of illegal and arbitrary interference in the family life of children, because the family plays an essential role in their development. Also, the participation of children acquires special relevance in the case of proceedings that may be of a punitive nature, in relation to an infringement of the immigration regime, opened against migrant children or against their family, their parents, representatives, or those accompanying them, because this type of proceeding may lead to the separation of the family and the subsequent impairment of the child’s well-being, regardless of whether the separation occurs in the State that expels them or in the State to which they are expelled.

 

Summary:

 

I. The events of this case refer to the return of the Pacheco Tineo family from Bolivia to Peru on 24 February 2001, as a consequence of the summary rejection of an application for recognition of refugee status in Bolivia and the Bolivian immigration authorities’ summary decision to expel the family, despite its knowledge that the family had apparently obtained refugee status in Chile. The Pacheco Tineo family entered Bolivia on 19 February 2001. The Bolivian immigration authorities did not allow the family, including three children, an opportunity to set out the reasons for their application and did not serve notice of its decisions. Furthermore, in their decision to expel the family, Bolivian authorities did not evaluate which state would be appropriate for the purpose of receiving its members. Furthermore, despite that the State of Chile had authorised the family to enter into that country, the latter were unexpectedly expelled to Peru and handed over to Peruvian authorities.


On 21 February 2012, the Inter-American Commission on Human Rights submitted the case to the Court’s jurisdiction, alleging violations to Articles 5, 8, 19, 22.7, 22.8 and 25 ACHR, in relation to Article 1.1 ACHR.

 

II.  On the merits, the Court found violations to the rights to seek and receive asylum, and the principle of non-refoulement, as well as the rights to judicial guarantees and protection, contained in Articles 22.7, 22.8, 8 and 25 ACHR with its relation to Article 1.1 ACHR, to the detriment of all the victims, as well as to the rights of children and family rights contained in Articles 19 and 17 ACHR, to the detriment of the three children that belonged to the Pacheco Tineo Family. It further declared violations to Article 5.1 ACHR in detriment of the members of the aforementioned family.


The Court determined that the State had violated Articles 22.7, 22.8, 8 and 25 ACHR given that on 21 February 2001, the Bolivian National Commission for Refugees declined to consider Mr Rumaldo Pacheco’s request, nor did it allow for him to express the reasons of his irregular entry to the country, nor his reasons for seeking asylum, thus, refusing to evaluate whether his life and liberty where endangered in Peru.


The Court further declared that the State had violated Articles 22.7 and 22.8 ACHR, given that Bolivia immediately initiated procedures to expel the victims from their territory without giving them the opportunity to argue their case against expulsion, nor were the latter correctly notified of any procedure of expulsion from the country. Moreover, there was no evaluation of which country was appropriate for their expulsion or of the possible risks that person could have suffered within Peru. Further, the family was not given the opportunity of appealing the decision.


The Court also determined that the retention of the victims’ documents and Fredesvinda Tineo’s illegal and arbitrary detention generated suffering, anxiety and frustration in the family members. Additionally, the lack of information regarding their requests, along with their expulsion, constituted a violation to their moral and psychological integrity, recognised under Article 5.1 ACHR.


Finally, the Court declared that the children expelled in the case were not considered as parties in these procedures, and the State failed to take their best interests, as well as the principles of non-refoulement and family unity, into account when deciding their migratory status. Instead, their rights were made to depend on the determination of the rights of their parents. This constituted a violation of Articles 19 and 17 ACHR, along with Articles 8.1, 22.7, 22.8, 25 and 1.1 ACHR.


Accordingly, the Court ordered, inter alia, that the State implement permanent educational programs for the formation of public officials that work in Bolivia’s Migration Offices and any other official that has contact with migrants and asylum seekers, and that it pay due compensation for the material and moral damages suffered by the victims.