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REPORT
Nº 28/01
CASE
12.189
DILCIA YEAN AND VIOLETA BOSICA
DOMINICAN REPUBLIC
February 22, 2001
I.
SUMMARY
1.
On 28 October 1998, The Inter-American Commission on Human Rights
(hereinafter “the Commission” or “the IACHR”) received a complaint
lodged by the International Human Rights Law Clinic (University of
California Berkeley, School of Law, Boat Hall), the Center for Justice and
International Law (Centro por la Justicia y Derecho Internacional –
CEJIL) and the Haitian-Dominican Women’s Movement, Inc. (MUDHA) on
behalf of Dilcia Yean and Violeta Bosica. In it they maintain that the
State of the Dominican Republic (hereinafter “the State” or
“Dominican Republic”) has denied these two girls citizenship in spite
of the fact that both were born within the territory of the Dominican
Republic and that the Constitution establishes the principle of jus
soli.
2.
The petitioners claim that the Dominican Republic is depriving
Misses Yean and Bosica of their basic rights and exposing them to imminent
and arbitrary expulsion from their native country due to the fact that
they do not have any document that proves their Dominican citizenship. In
addition, Violeta Bosica is not allowed to attend school for lack of a
birth certificate.
3.
The petitioners allege that by not recognizing Dilcia Yean (4 years
of age) and Violeta Bosica (15 years of age) as citizens and by denying
them documentation that would verify their Dominican citizenship, the
State is violating the right to nationality as enshrined in Article 20 of
the American Convention on Human Rights and other rights if the facts as
declared can be proven.
4.
On 27 August 1999, the Commission adopted precautionary measures on
the basis of Article 29 of its Rules of Procedure. This was done to assure
that the girls not suffer any irreparable harm, such as both of them being
expelled from the Dominican Republic or Violeta Bosica being denied the
right to attend school and receive an education like any other child with
Dominican citizenship. During the proceedings, the Commission offered its
good graces to the Parties to try to reach a friendly solution. Two
hearings were held with that aim, but the Parties did not reach agreement.
5.
The Dominican Republic maintains that it has acted in accordance
with the provisions of domestic law and the American Convention. It claims
that the petitioners have not exhausted domestic remedies.
6.
In its 110th Session, the Commission examined the
statements of fact and of law presented by the Parties during the
processing of the complaint and declared the case admissible.
II.
PROCEEDINGS BEFORE THE COMMISSION
7.
The Commission received the initial petition on 28 October 1998. On
13 June 1999, the petitioners submitted an amended version requesting that
precautionary measures be instituted on behalf of Dilcia and Violeta. On 7
July 1999 and in accordance with Article 34 of its Rules of Procedure, the
Commission begun proceedings on case 12.189 and requested the Dominican
Republic to submit pertinent information within 90 days.
8.
On 27 August 1999 and in accordance with Article 29 of its Rules of
Procedure, the Commission requested the Dominican Republic to institute
precautionary measures on behalf of Dilcia Yean and Violeta Bosica to
assure that they would not be expelled from the Dominican Republic and
that Violeta Bosica would be able to continue attending school. The
Commission gave the State 15 days to submit all pertinent information.
9.
On 17 September 1999, the Commission received a request from the
State to extend the above-mentioned period. On 30 September 1999, the
State submitted its comments, indicating that the petitioners had not
exhausted domestic remedies. This information was passed on to the
petitioners on 7 October 1999.
10.
On 5 October 1999, during its 104th Regular Session, the
Commission met with the parties in a hearing in which precautionary
measures were discussed. The State announced that the measures requested
by the Commission were being carried out. The petitioners stated that the
information they had received indicated that the girls had not been
deported from the Dominican Republic and that Violeta Bosica was regularly
attending school.
11.
On 1 November 1999, the Commission decided to offer its good graces
to help the Parties reach a friendly solution. In a letter dated 22
November 1999, the State indicated that it would be willing to undertake
such a proceeding. On 11 January 2000, the petitioners also accepted to
begin proceedings aimed at a friendly solution as proposed by the IACHR.
12.
In a hearing on 6 March 2000, the petitioners outlined their
proposals for a friendly solution. The State, however, disputed each and
every fact set forth by the petitioners, distancing itself from the
friendly solution framework proposed by the IACHR.
13.
On 2 May 2000, the petitioners submitted additional information to
the Commission, which was in turn remitted to the State on 4 May 2000. The
State responded on 7 June 2000 by repeating that domestic remedies had not
been exhausted and that Article 47(1)(a) of the Convention should be
applied. In accordance with normal procedures, this information was passed
on to the petitioners on 7 July 2000.
III.
POSITIONS OF THE PARTIES
A.
Position of the Petitioners
14.
The petitioners maintain that the Dominican Republic has refused to
issue belated declarations of birth to Dilcia Yean and Violeta Bosica,
both of whom were born in the territory of the Dominican Republic to
Dominican women of Haitian descent.
The petitioners claim that the State has violated their right to
nationality and that deprived of such legal identity, the girls are in
danger of imminent expulsion from the country.
15.
The petitioners also point out that deprived of the right of having
their births registered, the girls are unable to obtain recognition of
their legal personality and cannot enroll in school because they have no
identity document. Moreover, the petitioners
maintain that upon coming of age, the girls will not be able to exercise
their right to vote and will be deprived of their political rights. The
petitioners go on to claim that the State has deprived the alleged victims
of the right to the protection of the family, the rights of the child, the
right to a name and to nationality, and the rights to private property, to
freedom of movement and residence and to equal protection of the law, all
enshrined in the American Convention. The petitioners argue that the
plaintiffs are being deprived of their rights because of their race and
their Haitian descent.
16.
The petitioners maintain that the offices in charge of processing
birth registrations refused to register the girls, saying that they had
orders not to register or issue birth certificates to children of Haitian
descent. In this regard, the petitioners claim that the official in charge
of the Civil Registry pointed out that both the first and last names of
the girls were foreign and that they couldn’t be registered because
their parents were Haitian and thus they also were Haitian. This same
official said that when the girls were born, their parents were in the
country illegally and thus the girls had no right to Dominican
citizenship.
17.
The petitioners claim to have exhausted domestic remedies. The
respective mothers went to the Civil Administration Office (Oficialía
Civil) in Sabana Grande de Boyá to request belated declarations of
birth. When the official there refused to issue them, the plaintiffs
appealed the decision to the Procurator of the Monte Plata District, who
also rejected their applications. This was the final recourse available
for obtaining the belated declarations of birth.
B.
POSITION OF THE STATE
18.
The State holds that domestic remedies were not exhausted in the
case under consideration. It adds that there was no refusal to register
the girls and that they were told to redirect their efforts to comply with
the provisions of the Central Electoral Board (Junta Central Electoral,
hereinafter JCE), which is competent body for belated declarations. The
State added that the JCE has remained open to the petitioners complying
with legal requirements at any stage of the proceedings and that the order
issued by the Procurator of the Monte Plata District should not be
considered final and irreversible.
19.
The State also holds that the girls’ mothers must go before the
courts of the land to comply with the requirement of exhausting domestic
remedies. It maintains that an appeal to the Procurator, who is a
representative of the Office of the Attorney General (Ministerio úublico)
and not a judge with jurisdiction to rule over legal disputes, is
insufficient.
20.
The State counters the petitioners’ allegations of
discrimination, maintaining that the JCE, under which public employees of
the Civil Administration work, has never issued instructions that children
of Haitian descent are not to be registered.
21.
In response to the claim that the girls are in a situation of
imminent danger, the State maintains that “Currently there is no
possibility of the Dominican Republic repatriating any Haitian who is in
the country on a legal basis (such as those who hold legal residence,
refugee status, a work permit or a current visa), or who fulfills any of
the conditions for tolerance of illegal immigrants (such as citizenship
with prolonged presence in the country or family links with Dominican
nationals).”
22.
The State holds that in the case under consideration, the General
Office on Migration (Dirección General de Migración) ordered the
pertinent departments not to repatriate minors Dilcia Yean and Violeta
Bosica, both of Haitian descent and allegedly born in the Dominican
Republic, until their claims could be fully checked. The State also
reports that the Department of Haitian Affairs was sent orders to issue a
certificate allowing the minors to temporarily remain in the country on a
fully legal basis while their status was being examined.
IV.
ANALYSIS OF ADMISSIBILITY AND COMPETENCE
23.
As stipulated in Article 44 of the American Convention on Human
Rights (ratione materiae), the
Commission has prima facie
competence to examine the petitioners’ complaint since the alleged acts
concern the right to nationality enshrined in Article 20 of the
Convention. The Commission has ratione
loci competence since the alleged acts occurred in the jurisdiction of
the Dominican Republic, which has been a State Party to the Convention
since 7 September 1978. The Commission has ratione
temporis competence since the alleged acts were carried out during a
period in which the Dominican Republic was under obligation to respect and
guarantee the rights enshrined in the Convention.
24.
The Commission will now examine if the petition meets the
admissibility requirements set out in Articles 46 and 47 of the American
Convention.
B. Requirements
for Admissibility
a.
Exhaustion
of domestic remedies
25.
Article 46(1)(a) of the Convention stipulates that:
1.
Admission by the Commission of a petition or communication lodged
in accordance with Articles 44 or 45 shall be subject to the following
requirements:
a.
that the remedies under domestic law have been pursued and
exhausted in accordance with generally recognized principles of
international law;
26.
The Commission has repeatedly referred to the “supplemental or
complementary” nature of the inter-American human rights protection
system. This rule allows states to resolve matters within their own legal
framework before being faced with any international proceedings.
27.
In the case under consideration, the petitioners claim to have
reported the human rights violations to the competent authorities.
Nonetheless, the attempted use of domestic remedies did not prove
fruitful.
28.
The State, on the other hand, disputes the facts as presented by
the petitioners in regard to exhaustion of domestic remedies. The State
claims that domestic procedures are still available and thus domestic
remedies have not been exhausted.
29.
The petitioners claim to have exhausted all remedies available
domestically once they applied for belated declarations of birth for
Dilcia Yean and Violeta Bosica in Sabana Grande de Boyá, province of
Monte Plata, on 5 May 1997. They point out that in order to register the
minors, both mothers submitted their identity cards and proof that the
girls were born in the Dominican Republic. The petitioners state that
after the Civil Registry official refused to authorize issuance of belated
declarations of birth for the minors, they appealed the case to the Procurator
of the Monte Plata District, requesting him to order that the girls’
births be entered in the Civil Registry. On 20 July 1998, the Procurator
denied their request, saying that proper documentation had not been
provided and that proper procedures had not been followed.
30.
The petitioners state that during their attempts to register the
girls, they were asked to submit a number of documents that in their
opinion were irrelevant to showing that the girls were in fact born in the
Dominican Republic. Moreover, they maintain that most Haitian-Dominicans
would find it impossible to produce all the documents required.
31.
The petitioners claim that both mothers are Dominican citizens, as
proven by their respective identity and voter registration cards. But they
affirm that they cannot meet the requirement of supplying identification
for the girls’ fathers, both of whom are Haitian and have no contact
with them. The petitioners add that the requirement of presenting
witnesses over 50 years of age with an identity card and who also know how
to read and write is impossible to meet. Both girls were born in the
“bateyes” where people do not possess identity cards and most are
illiterate. In addition, the petitioners claim that the State considers
Haitian and Haitian-Dominican workers to fall under the “in transit”
category of people established by the Constitution, a category which
denies Dominican nationality to their children.
32.
The petitioners hold that the girls’ mothers took the initiative
to present their request directly to the Procurator since his function is
to oversee and report on errors made by Civil Registry officials.
33.
The petitioners claim that in domestic law there is no provision
allowing a private party to appeal a decision of the Procurator to a Court
of First Instance. According to Law 659 on Acts of the Civil
Administration, it is the Procurator who is charged with presenting
belated declarations to the Court of First Instance and in the case under
consideration, that was never done.
34.
In regard to possibly appealing to the JCE, the petitioners
maintain that in domestic law there is no procedure for applicants to file
individual cases before the JCE in regard to denial of a belated
declaration of birth. Moreover, petitioners hold that an appeal to the JCE
is not an effective recourse since the JCE has made its opinion known
by declaring that the documents submitted by the mothers were not
sufficient and for that reason they had not granted the birth
certificates. Lastly, the petitioners hold that they are not required to
appeal to the JCE since it is not a body of judicial recourse.
35.
The petitioners maintain that the JCE and the Dominican courts do
not offer effective remedy. They hold that any appeal to the JCE is a
purely illusory remedy since that body will not consider registration
requests that do not include the mandatory documentation, which the
petitioners claim is impossible to provide. The petitioners maintain that
domestic legislation does not confer the JCE with jurisdiction to hear
individual cases previously handled by the Offices of Civil
Administration. They add that the impossibility of appealing a decision of
the JCE, which denied the girls their request for birth certificates,
effectively means that all domestic remedies have been exhausted.
36.
The State holds that the documents required for the issuance of a
belated declaration of birth apply equally to all persons and that there
is no discrimination on the basis of the parents’ heritage. In this
regard, the State maintains that the affected parties were informed at all
times of the requirements for obtaining the kind of declaration they
wanted. The State notes that when applying for a belated declaration of
birth in the Office of Civil Administration in Sabana Grande de Boyá, the
mother of Violeta submitted only a certification of birth issued by the
mayor of Batey Las Charcas and her own identity and voter registration
cards, while Dilcia’s mother submitted only a certification of birth
issued by the Sabana Grande de Boyá health clinic and her own identity
card. The State considers such documentation to be insufficient to issue a
declaration.
37.
The State maintains that the JCE has still not issued a final
decision, that the case is still open, and that the plaintiffs can still
register the minors in question by complying with the requirements
established by law.
38.
The State also maintains that the plaintiffs have not sought remedy
before the regular courts and that the Procurator, to whom they went to
apply for a belated declaration of birth, is a representative of the
Office of the Attorney General and not a judge. They thus argue that
domestic remedies have not been exhausted. Moreover, the State holds that
the Procurator incurred in a procedural error when accepting the appeal
filed by the mothers of the alleged victims. They point to Article 41 of
Law 659 which stipulates that it is the Civil Registry official who shall
send a certified copy of the file to the Procurator of the Court District.
The State argues that the Procurator rejected the application for a
belated declaration of birth on the basis of documental and procedural
shortcomings. The State thus maintains that the JCE has not yet made any
final decision in this case.
39.
An examination of Dominican legislation in the possession of the
Commission shows that the petitioners lack the authentication needed to
initiate a court case since they must request the Procurator to do so
according to Article 41 of Law 659. Moreover, examination of submissions
shows that the Procurator did not authorize the judge of first instance to
initiate an investigation on whether belated declarations of birth should
be issued to Dilcia Yean and Violeta Bosica, as stipulated in Article 41
of law 659.
40.
Jurisprudence in the inter-American system has established that a
State claiming that domestic remedies have not been exhausted must show
that suitable and effective remedies exist (onus
probandis incumbit actoris) for reparation of the alleged violations,
or failing that, the State must explain what remedies should be exhausted
or why they have not been effective. In the case under consideration, the
State has not clearly shown what suitable and effective remedy or remedies
exist that should have been exhausted by the petitioners.
41.
The
Commission notes that, in effect, the State has not proven that there is a
suitable remedy capable of changing administrative decisions handed down
by the Procurator or by the JCE. Neither has the State countered the
petitioners’ claims that there are no mechanisms that would allow the
plaintiffs to proceed with a direct appeal.
42.
For
the above-mentioned reasons, the Commission considers the petitioners to
have exhausted the remedies expressly provided for in current domestic
law, in accordance with Article 46(1) of the American Convention.
Moreover, there are no suitable domestic remedies available that need to
be exhausted before resorting to the international level and thus the
exception to exhaustion of domestic remedies provided for in Article
46(2)(a) is to be applied in this case.
43.
In
this regard, the Inter-American Court of Human Rights has pointed out:
When
certain exceptions to the rule of non-exhaustion of domestic remedies are
invoked, such as the remedies not being effective or due process of law
not being afforded, the implication is not only that the harmed party is
not obligated to file for such remedies, but that the State is violating
anew the obligations it has under the Convention. In such circumstances,
the question of domestic remedies draws very close to the merits.
44.
The Commission believes that in the case under consideration,
exhaustion of domestic remedies is closely linked to the merits since the
State has the obligation to provide for effective judicial remedies, in
accordance with the American Convention. Thus the aspects of this case
related to the effectiveness of domestic remedies will be examined along
with the merits.
45.
Taking into consideration all the elements examined, the Commission
deems that the admissibility requirement on exhaustion of domestic
remedies as stipulated in Article 46(1)(a) of the American Convention has
been met.
b. Timeliness of
Petition
46.
Article 46(1)(b) of
the American Convention establishes that for a petition to be admissible,
it must be “lodged within a period of six months from the date on which the party
alleging violation of his rights was notified of the final judgment.”
47.
The Commission notes that the petitioners appeared before the
Commission within the period stipulated in Article 46(1)(b) of the
Convention. The Procurator’s decision was made on 20 July 1998 and the
petition was lodged with the Commission on 28 October1998.
48.
In consequence, the Commission deems that the admissibility
requirement contained in Article 46(1)(b) of the Convention stipulating
that a petition must be lodged within six months has been met.
c.
Duplication of Procedures and Res
Judicata
49.
Article 46(1)(c)
stipulates that for a petition or communication to be admitted by the
Commission, the subject of it cannot
be pending in another international proceeding. Article 47(d) stipulates
that the Commission shall declare inadmissible any petition or
communication that is substantially the same as one previously studied by
the Commission or by another international organization.
50.
From the submissions of the parties and documents on file it can be
ascertained that the petition is not pending in another international
proceeding or settlement, and that it is not substantially the same as one
previously studied by the Commission or by another international
organization. The Commission thus deems that the admissibility
requirements contained in Article 46(1)(c) and 47(d) of the American
Convention on Human Rights have been met.
d.
Characterization of the Alleged Facts
51.
The Commission deems that, in principle, the acts outlined in the
petitioners’ statement of fact, if proven, could be characterized as a
violation of the rights guaranteed by the American Convention. The
Commission believes that the allegations of violation of the right to
nationality and the lack of suitable and effective domestic remedies must
be examined during consideration of the merits of the case.
V.
CONCLUSIONS
52.
In virtue of the above considerations, the Commission concludes
that the petition complies with the requirements of admissibility set
forth in Articles 46 and 47 of the American Convention on Human Rights.
Thus the Commission is competent to hear case No. 12,189.
53.
Based on the arguments of fact and of law outlined above, and,
without prejudice to the merits of the case,
THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
DECIDES
TO:
1.
Declare this case admissible with regard to the alleged violation
of the right enshrined in Article 20 of the American Convention on Human
Rights.
2.
Defer consideration of the other rights invoked by the petitioners
until examination of the merits of the case, if the facts are proven.
3.
Notify the parties of this decision.
4.
Continue with the analysis of the merits of the case.
5.
Publish this decision and include it in its Annual Report to the
OAS General Assembly.
Done
and signed by the Inter-American Commission on Human Rights on the 22nd
day of February 2001. (Signed): Claudio Grossman, Chairman; Juan Méndez,
First Vice-Chairman; Marta Altolaguirre, Second Vice-Chairwoman;
Commissioners: Hélio Bicudo, Robert K. Goldman, Peter Laurie and Julio
Prado Vallejo.
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