IV. CASE LAW OF THE INTER-AMERICAN SYSTEM IN RELATION TO MIGRANT WORKERS AND THEIR FAMILIES
63. Traditionally, as part of its annual report, the Rapporteurship informs the General Assembly of the developments in the case law of the organs of the Inter-American system for the protection of human rights related to migrant workers and their families. The decisions of the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights (hereinafter the “Commission” and the “Court”) are valuable for developing the content and scope of the human rights of migrant workers and their families. This section examines the case law of both the Commission and the Court in 2004.
64. In the above-mentioned period, the Inter-American system produced very little case law regarding migrant workers and their families. The Commission admitted a petition concerning the right to equality for foreigners and nationals in Chile in the practice of law. The petition was based on a regulatory prohibition against the practice of law by foreigners in Chile. Furthermore, the Court issued its judgment in the Tibi Case v. Ecuador, in which it dealt with the preliminary objections, merits, and reparations. This judgment refers to the arbitrary detention, violation of the right to a fair trial, torture, and failure to return property confiscated from a French citizen living in Ecuador.
65. These two cases are illustrative of the violations of the human rights of migrant workers and their families in the Americas and show the regulatory and practical challenges that must be faced so as to ensure and provide proper protection for their rights.
Right to Equality
66. In October 2004, the Commission adopted Admissibility Report 59/04 in connection with a petition lodged by Margarita Cecilia Barbería Miranda, a Cuban citizen with permanent residence in Chile, against Chile. The petition alleges violation of the right to equality before the law (Article 24 of the American Convention on Human Rights –hereinafter, the “American Convention”-), of the obligation to protect and ensure human rights (Article 1 of the American Convention), and the duty to adopt domestic legal provisions (Article 2 of the American Convention). The petition also claims violation of Articles 2, 3 and 6 of the Additional Protocol to the American Convention in the Area of Economic, Social and Cultural Rights (hereinafter, the Protocol of San Salvador).
67. The alleged facts in the case may be summarized as follows. Ms. Barbería married Jaime Fernando Rovira Sota, a Chilean citizen, in 1985. The couple moved to Chile in December 1989. Ms. Barbería obtained permanent resident status in Chile in 1990 and since then has been living in the country with her husband and their three children, who are Chilean citizens. Ms. Barbería went to law school at Universidad Nacional Andrés Bello, in Santiago, Chile, and completed her studies in 1996 after successfully sitting the bar exam (Licenciatura en Ciencias Jurídicas) and meeting the requirement of a six-month internship in a professional practice, thereby satisfying all of the academic requisites to practice law in Chile. The petitioner submitted the documents to the Department of Titles of the Supreme Court of Justice of Chile, in order to take an oath as a lawyer. The Supreme Court did not permit her to take an oath inasmuch as Article 526 of the Organic Code of Tribunals provides that only Chilean citizens are permitted to practice law “without prejudice to the provisions of international treaties in force.”
68. The petitioner attempted the following judicial remedies against the decision of the Supreme Court. In May 2001, she filed an appeal for protection (recurso de protección) with the Court of Appeals of Santiago for violation of the rights to equality before the law and freedom from arbitrary discrimination, and the right to work recognized in Articles 2 and 16 of the Chilean Constitution. The appeal was found inadmissible. In March 2002, the petitioner entered a special motion for reversal with the Supreme Court, invoking new facts, and at the same time interposed a motion of inapplicability on grounds on unconstitutionality. With this appeal, Ms. Barbería sought to prevent the application of Article 526 of the Organic Code of Tribunals as unconstitutional. The appeal was ruled inadmissible by the plenary of the Supreme Court. In September 2002, the petitioner sought a writ of amparo on financial grounds from the Court of Appeals of Santiago, which was also ruled inadmissible. Ms. Barbería said that she had exhausted all remedies available in Chile.
69. Ms. Barbería argued that the laws and actions of the Chilean authorities preventing her from practicing law violate her rights to equality before the law and to protection from arbitrary discrimination, since they discriminate against her on the basis of nationality, preventing her from making a living and undertaking economic initiatives. She says that by its actions the Chilean State violates the right to equality before the law (Article 24 of the American Convention) and the right to work (Article 6 of the Protocol of San Salvador). She further adds that the actions of the State violate Article 1 of the Protocol of San Salvador to adopt progressive measures to ensure the full observance of the rights protected in that instrument; and Article 3 of the same instrument, which prohibits discrimination, inter alia, for reasons of national origin. The petitioner also alleged violation of Articles 1(1) and 2 of the American Convention.
70. The State replied to the petition, saying that Ms. Barbería had failed to exhaust one of the domestic remedies. The State argued that she should have presented a motion for reversal against the decision denying her appeal for protection lodged on May 25, 2001, and furthermore, that the petitioner could have applied for and taken Chilean nationality. With respect to violation of the right to equal protection, the State mentioned that the requirement to hold Chilean nationality in order to practice law derives from the Constitution, which guarantees the right to work but recognizes legal limits thereon. The State further mentions that Ms. Barbería, a law student in Chile, cannot claim ignorance of the law, in this case with respect to the requirement to be a Chilean national in order to practice law. As to the arguments of the petitioner, the State said that it is not possible to allege violation of the right to work and to free economic initiative since they are not guaranteed in the American Convention. With respect to the alleged violations of the Protocol of San Salvador, the State said that it cannot be held to liability for such because Chile has not ratified said instrument. Finally, the State said that responsibility rests with the law school at the university where the petitioner studied, since it permitted her to register despite her foreign status and awareness of the requirement to hold Chilean nationality in order to practice the profession. Accordingly, the State asked the Commission to declare the petition inadmissible or to reject it outright for failure to establish violation of rights for which the Chilean State could be held liable.
71. In its admissibility analysis, the Commission determined that it has ratione materiae competence with respect to violations of Articles 1, 2, and 24 of the American Convention, but rejected the alleged violations of the Protocol of San Salvador as the Chilean State is not a party a thereto. The Commission also found that it is competent ratione personae, ratione temporis, and ratione loci.
72. As to exhaustion of domestic remedies, the State argued that the petitioner did not file a motion for reversal against the decision of the Court of Appeals that dismissed the appeal for protection. The petitioner said that she filed said appeal and that it was denied by the Supreme Court. She added that the State failed to demonstrate the suitability and effectiveness of the domestic remedy that it argues she was required to exhaust. The State also said that the other remedy that the petitioner should have exhausted was that of naturalization, and that, despite meeting the necessary requirements, she has not done so. The petitioner said that she is not prepared to renounce her nationality in order to take Chilean nationality. Furthermore, she added that under Law 19.074 persons who have studied abroad are entitled to practice the profession in Chile. The purpose of this law is to facilitate the reincorporation of Chileans exiled under the military dictatorship and their families. This law permits foreigners to practice law in Chile without need for them to renounce their nationality. However, that law sets time limits for the entry of such foreign nationals that prevent Ms. Barbería benefiting from it.
73. The Commission considered the arguments of the parties and determined that to change nationality is not a domestic remedy that need be exhausted as the State claimed, since the petition precisely concerns the right of a foreigner to practice law in Chile. Based on the foregoing, the Commission determined that the petition meets the requirements contained in Article 46 of the Convention and declared it admissible. Finally, the Commission found that the petition was lodged within the six-month time limit and that the subject of the petition is not pending in another international proceeding for settlement.
74. In relation to other arguments advanced by the State, the Commission found that the arguments of the petitioner regarding violation of the right to work and to free economic initiative cannot be considered in this case since those rights are not enshrined in the American Convention. The Commission also agreed with the petitioner that the university where the petitioner pursued her law studies is not responsible for the violation but, rather, the State which is the one that should grant her a license to practice her profession.
75. Based on the foregoing, the Commission declared the case admissible with respect to Articles 1, 2, and 24 of the American Convention.
Right to personal liberty, a fair trial, and property
76. In June 2003, the Commission submitted an application to the Court against the State of Ecuador for violation of the rights of Daniel David Tibi. The application mentioned violation of the following rights: humane treatment (Article 5 of the American Convention), personal liberty (Article 7 of the American Convention), fair trial (Article 8 of the American Convention), property (Article 21 of the American Convention), and judicial protection (Article 25 of the American Convention), in connection with the obligation to respect rights (Article 1 of the American Convention) and the duty to adopt domestic legal provisions (Article 2 of the American Convention).
77. The facts alleged in the application may be summarized as follows. Mr. Daniel David Tibi, a French citizen with permanent resident status in Ecuador, was arrested on September 27, 1995, in Quito. Mr. Tibi was a trader in precious stones and he resided with his family in Ecuador. Mr. Tibi was arrested without a court order and taken to the city of Guayaquil. There he remained, illegally imprisoned for 28 months. The Commission holds that Mr. Tibi was tortured on several occasions in order to coerce him to confess to involvement in a drug trafficking offense, in accordance with the Law on Narcotic and Psychotropic Substances. Furthermore, when he was arrested, property belonging to Mr. Tibi worth an estimated one million French francs was seized from him. Mr. Tibi was finally set at liberty on January 21, 1998. However, the seized property was not returned to him.
78. The Commission requested the Court to order the State to provide effective reparation to the victim, including compensation for emotional pain and suffering and material injuries caused to Mr. Tibi. The Commission further requested the Court to order the State to adopt the appropriate measures to ensure the rights recognized in the American Convention to all persons under its jurisdiction, in order to prevent similar violations in the future. Finally, the Commission asked that the State be ordered to defray the legal costs and other procedural expenses incurred both in the domestic courts and before the organs of the Inter-American system.
79. The Court examined the case and delivered a judgment, which may be summarized as follows. The Court found that it was competent to take up the case inasmuch as Ecuador has been a party to the American Convention since December 28, 1977, and recognized the contentious jurisdiction of the Court on July 24, 1984. Furthermore, Ecuador ratified the Inter-American Convention to Prevent and Punish Torture (hereinafter the “Inter-American Convention against Torture”) on November 9, 1999.
80. With respect to processing, the State filed two preliminary objections, alleging i) failure to exhaust domestic remedies and ii) that the Inter-American Court lacked subject matter competence to take cognizance of violations of the Inter-American Convention against Torture. With respect to failure to exhaust domestic remedies, the State argued that the criminal proceeding against Mr. Tibi had not concluded and, therefore, that the petition should not have been admitted by the Commission, nor the application by the Court. The State later said that the criminal proceeding was suspended. It also said that a writ of amparo (amparo de libertad), the remedy exhausted by the victim’s legal representative, was not a suitable and effective remedy, given that it was a complaint appeal to the superior court that issued the order of imprisonment. The State added that a writ of habeas corpus had not been sought before the magistrate for the district where Mr. Daniel Tibi was detained, and that it was the suitable remedy. The State further held that the victim should have brought a civil suit against the State for judicial error, inadequate administration of justice, acts that cause the imprisonment or arbitrary detention of an innocent person, and violation of due process guarantees. Nor did the victim exhaust the remedy of appeal once the court examining the case hands down its judgment. The State added that there has not been an unwarranted delay in the proceeding.
81. The Commission submitted a reply to the aforesaid request, and asked that the first preliminary objection be declared inadmissible. It argued that the decision on admissibility adopted by the Commission should be considered final by the Court, since the State had the opportunity to dispute admissibility at that time. On said occasion, the State neglected to mention which criminal proceedings were pending. The Commission added that there are no proceedings pending because the Superior Court of Guayaquil confirmed the provisional dismissal of the proceeding and the provisional acquittal of the accused, and ordered the release of Mr. Tibi. Furthermore, the Commission mentioned that Mr. Tibi filed for two writs of amparo before the courts to challenge the legality of the arrest: one on July 1, 1996, the other on October 2, 1997. The first of these motions was rejected and the second never received a reply. Furthermore, the Commission said that the victim cannot attempt appeals for cassation or review because they are only admissible against a final judgment and, in this case, the proceeding against Mr. Tibi concluded before that occurred because the charges against him were dismissed. During processing before the Commission, the State made no mention of the writ of habeas corpus, the civil suit for damages, or the remedy of appeal and, therefore, it cannot do so now in the proceedings before the Court. With respect to the confiscated property, the State did not mention what procedure should be followed to secure its return.
82. The representatives of the victim requested the Court to reject the two preliminary objections. They argued that the Commission determines the admissibility of a petition and that the principle of procedural preclusion was in effect, for which reason the decision on admissibility is final. They also added that no appeal is admissible against the judgment that confirmed the provisional dismissal; that Mr. Tibi filed for two writs of amparo, which were rejected; and that Mr. Tibi was not required to apply for a writ of habeas corpus. By the same token, they said that a civil suit for damages is not a suitable remedy and that it was not mentioned as such by the State in the procedure before the Commission.
83. In the judgment, the Court made the following considerations with respect to the preliminary objections. In first place, it reiterated the arguments on admissibility of the petition and exhaustion of domestic remedies, and mentioned that in failing to invoke non-exhaustion of certain domestic remedies during the admissibility proceeding before the Commission, the State tacitly waived the right to invoke failure to exhaust such remedies at a later stage. Based on the foregoing, the State cannot invoke failure to exhaust said remedies in the proceeding before the Court. The Court also considered the argument of the State to the effect that the criminal proceeding against Mr. Tibi was still pending and that yet to be exhausted were the remedies of cassation and review, which could be attempted once a decision had been reached in the proceeding. The Court found that, given that said proceeding had first come to the attention of the Commission in 1998, there was an unwarranted delay, for which reason the exception to the rule of exhaustion of domestic remedies found at Article 46(2)(c) of the American Convention applied.
84. As its second objection, the State argued that the Court lacked competence to take up violations of the Inter-American Convention against Torture, since the facts in this case occurred before Ecuador ratified said instrument. The Commission mentioned that it had made no reference to that instrument and, therefore, requested the Court to reject said objection. The representatives of the victim said that they were not asking the Court to pronounce on violations that occurred before the Inter-American Convention against Torture entered into force for the State. Nevertheless, after said instrument came into force, the State omitted to investigate the facts, thereby violating Articles 1, 6 and 8, and the Court is competent to take up those violations. With respect to this second preliminary objection, the Court mentioned that the issue concerns competence by reason of time rather than the subject matter of the case. It explained that facts that occurred before the Inter-American Convention against Torture entered into force for Ecuador are not of its competence; however, those that occurred after the date that said Convention came into force for the State are. Based on the foregoing, the Court dismissed the second preliminary objection interposed by the State.
85. The Court agreed with the facts contained in the application submitted by the Commission and mentioned others, which are summarized next. Mr. Tibi was arrested by agents of Interpol without a court order or in flagrancy. At the moment of his arrest the agents told him that it was part of an immigration control operation and failed to inform him of the charges against him. Mr. Tibi gave a pre-procedural statement without a judge or his attorney present. At the time of his arrest, Mr. Tibi was not permitted to communicate with his partner or with the consulate of his country. In the criminal proceeding against Mr. Tibi procedural measures were adopted that affected him and were not notified to him. He was without defense counsel for a month and though a public defender was assigned to him, he was not aware of it, nor did he meet said attorney. The judge hearing the case ordered the provisional dismissal of the case against Mr. Tibi, which decision was confirmed by the Superior Court of Justice of Guayaquil on January 14, 1998. Mr. Tibi was set at liberty on January 21, 1998 (he had been arrested on September 27, 1995). With respect to the confiscated property, a judge ordered their return in September 1998, following confirmation of a consultation submitted to the Sixth Chamber of the Superior Court of Justice of Guayaquil. It is not known what decision was reached in that consultation. The seized property was not returned to Mr. Tibi.
86. The Court also confirmed the following facts: When he was arrested, Mr. Tibi was engaged in an economic activity with which he supported his family. Their monthly income fluctuated by virtue of their economic activity as merchants. Currently, Mr. Tibi is unable to work normally. During his incarceration he was held in several different wings of the Penitenciaria del Litoral under inadequate conditions; he had to pay for his food; he slept on the ground; he was assaulted by other inmates; he was the victim of physical violence and threats on the part of the prison guards; and he did not receive adequate medical attention. As a result of these facts, Mr. Tibi suffers from physical and mental health disorders. The facts caused financial costs, suffering, distress, and pain to his family.
87. Next the Court examined each violation of rights alleged in the application. With respect to personal liberty and based on the arguments set forth, the Court said that under the body of laws in force at the time of Mr. Tibi’s arrest, a court order is required in order to arrest a person unless it is a case of flagrancy. In this case, there was no court order, which violated Article 7(2) of the American Convention. Furthermore, despite the fact that preventive detention is an exceptional measure, the State ordered the detention of Mr. Tibi even though it lacked sufficient evidence to suspect his responsibility for a crime; and it also failed to show the need for such a measure. Based on the foregoing, the Court found that the preventive detention to which Mr. Tibi was subjected was arbitrary, in violation of Article 7(3) of the American Convention. The Court further determined that other requirements were not met at the moment of notification, such as the obligation to inform him of the charges against him and of his right to communicate with an attorney, a family member, or a consular official, thus violating Article 7(4) of the American Convention. Finally, Mr. Tibi was not brought before a court or a judicial authority. This requirement is not satisfied simply by informing a judge of the arrest; rather, the detainee must be brought in person and without delay before the judge. Nor was this requirement met by the presence of the government prosecuting attorney, since that official does not have judicial powers. In light of the foregoing, Article 7(5) of the American Convention was also violated.
88. Next the Court examined the violation of the right to personal liberty and judicial protection. First it mentioned that the writs of habeas corpus and amparo are judicial guarantees essential for the protection of several rights and that their purpose is to prevent arbitrary and illegal arrest. It added that said remedies must be effective. In this case, in July 1996, Mr. Tibi filed a writ of amparo, which was denied 21 days after it was submitted. Mr. Tibi filed a second writ of amparo in October 1997. The Court concluded that there was a violation of Articles 7(6) and 25, in conjunction with Article 1(1), of the American Convention. The Court did not find a violation of Article 2 of the American Convention.
89. As regards violation of the right to humane treatment, the Court finds that the outright prohibition of all forms of torture is a part of ius cogens. In this case, it is demonstrated that during his period of detention, on repeated occasions Mr. Tibi was the victim of physical violence designed to compel him to admit responsibility for the above-mentioned crimes. He was also the victim of threats and harassment. These acts of violence caused Mr. Tibi physical and mental suffering, which is a form of torture under Article 5(2) of the American Convention. Mr. Tibi remained deprived of liberty in overcrowded and unsanitary conditions, which are not consistent with a humane treatment, also required under Article 5. Furthermore, Mr. Tibi was twice examined by doctors who noted that he had injuries and traumatism, but he was not offered medical assistance. The lack of proper, timely medical care had adverse consequences for the present state of health of the victim. Deficient medical assistance during deprivation of liberty violates Article 5 of the American Convention. Furthermore, the failure to separate persons awaiting trial from convicted prisoners violates Article 5(4) of the American Convention. In addition the State neglected its duty to investigate the torture inflicted on Mr. Tibi in disregard of the obligations to prevent and punish acts of torture contained in Articles 1, 6 and 8 of the Inter-American Convention against Torture. The Court determined, furthermore, that, as a result of his detention, Mr. Tibi’s family were also victims of violations of their right to humane treatment, inasmuch as those violations led to the breakup of the family in violation of Articles 5.1 and 1.1 of the American Convention. The Court did not find a violation of Article 2 of the American Convention.
90. As regards to the right to a fair trial, the Court determined with respect to the principle of reasonableness of time that its appraisal should take into account the entire duration of the proceeding. Reasonableness should be determined based on the complexity of the case, the procedural activity of the interested party, and the conduct of the judicial authorities. By those standards, the Court concluded that the State violated the right of Mr. Tibi to a hearing within a reasonable time (Article 8(1) of the American Convention). As to the presumption of innocence, the Court found that the detention of Mr. Tibi was illegal and arbitrary and that there was no evidence to suspect of his involvement in a drug trafficking operation. Based on the foregoing, the Court determined that the State violated Article 8(2) of the American Convention. As regards the right to know the charges against him, the Court said that it was found that Mr. Tibi was not provided that information in a timely manner, in violation of Article 8(2)(b) of the American Convention. Concerning the right of defense, the Court found that Mr. Tibi did not have access to a lawyer for the first month of his detention, during which he made a statement to the government prosecutor without the assistance of legal counsel. Furthermore, the judge presiding over the case assigned him a public defender, who never contacted him. In addition, the Court said that, despite his foreign status, Mr. Tibi was not advised of his right to communicate with a consular official from his country, as provided in Article 36(1)(b) of the Vienna Convention on Consular Relations, which is part of the right of defense. In light of the foregoing, the Court determined that the State violated Articles 8(2)(d) and 8(2)(e) of the American Convention to the detriment of Mr. Daniel Tibi. The Court also mentioned that Mr. Tibi was subjected to torture in order to compel him to testify against himself, in violation of Article 8(2)(g) of the American Convention.
91. With respect to the right to property, the Court determined that possessions belonging to Mr. Tibi were seized from him when he was arrested, and that despite the fact that the Ecuadorian regulatory framework provides that such possessions must be returned when so ordered by a court, and that a court ordered their return almost six years earlier, that decision has not been executed. In view of the foregoing Mr. Tibi’s right to property was violated under Article 21 of the American Convention.
92. Based on the above-described examination of violations, the Court ordered that the victim and his family be provided reparation for material, incidental, and non-material damages caused. Furthermore, as regards measures of satisfaction and guarantees of non-repetition, the Court determined that the victim was entitled to know the identities of the persons responsible for his illegal and arbitrary arrest, torture, and violation of his due process guarantees and right to a fair trial. This is the right to truth. To that end, the State should investigate the incident in order to identify, prosecute and punish those responsible. The results of the investigation should be made public to enable the Ecuadorian and French society to know the facts. The State must publish the pertinent portions of the Court’s judgment in Ecuador and in a French newspaper of broad circulation in the area where Mr. Tibi lives. Furthermore, the Court ordered the State to publish a formal statement of recognition of international responsibility for the above-mentioned facts, in which it is also required to extend an apology to Mr. Tibi and his family. The purpose of said declaration is to provide satisfaction and a guarantee of non-repetition. Also, the Court ordered the State to set up an education and training program for personnel of the judiciary, office of the attorney-general, prisons, and the police on protection of human rights, in particular on the principles and standards applicable to persons deprived of liberty. Finally, the Court ordered the State to pay costs and granted it one year to pay compensation and expenses.
93. Judge Sergio García Ramírez submitted a reasoned concurring vote. Judge Antonio Cançado Trindade also entered a reasoned vote, as did Judge Hernán Salgado Pesantes.
 Inter-American Commission on Human Rights, Admissibility Report 59/04, Petition 292/03, Margarita Cecilia Barbería Miranda, October 13, 2004.
 Inter-American Court of Human Rights, Judgment, Tibi Case v. Ecuador, September 7, 2004.
 Inter-American Court of Human Rights, Judgment, Tibi Case v. Ecuador, September 7, 2004, par. 48-50.
See, Inter-American Court of Human Rights, Judgment, Tibi Case v.
Ecuador, September 7, 2004,
 “[i]t should be applied as an exceptional measure since it is limited by the principles of legality, presumption of innocence, necessity, and proportionality, which are essential in a democratic society.” Inter-American Court of Human Rights, Judgment, Tibi Case v. Ecuador, September 7, 2004, par. 106.