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Visit to the Settlement of La Carpio 134. As part of their activities during their first visit to Costa Rica, staff of the Rapporteurship visited La Carpio, a population settlement of low-income persons inhabited mostly by Nicaraguan migrants. This settlement, situated in the outskirts of San José in the district of La Uruca, Central Canton of the province of San José, was created in 1993 when a group of 25 families of Nicaraguan origin invaded the lands of a farm that belonged to the CCSS (known as la Finca de la Caja), for the purpose of establishing dwellings there. Over time, La Carpio became a large community inhabited mostly by persons of Nicaraguan nationality or origin, and by a minority of low-income Costa Rican families. Thanks to the contributions of the Costa Rican government, the San José government, and the support of private and foreign organizations, including the Government of Canada, the settlement has gradually built up some basic infrastructure. Nonetheless, this development it has been a slow process, and accordingly there are still many problems in this area. While there is a basic electrical grid and a drinking water network, the community does not have sewerage services, and most of the housing units are frail. Access is difficult, and security is quite deficient, given the presence of criminal gangs, many of whom operate with impunity due to the lack of police presence. [110] 135. During the visit to the settlement, the Rapporteurship visited the health center and the only primary school in the community. The representatives of the Rapporteurship were able to verify that the health center was in good condition. As for equipment, it had modern medical equipment and computers for record-keeping. The professional staff was quite complete and included physicians with various specialties, including nurses, psychologists, and social workers. In general, the center was organized to perform preventive work and education, and to treat cases of moderate to medium gravity. Extremely serious cases are referred to other care centers. The center is financed by the CCSS, and provides general medical and dental care to the community free of charge. 136. The primary school, conversely, presented some worrisome characteristics. The school serves approximately 1,800 students in three shifts, for primary education. Most of the children who go to school are of Nicaraguan ancestry. As for infrastructure, the school presented serious shortcomings in terms of the classrooms, bathrooms, lunchroom, and recreation areas. The assistant principal indicated that there was a shortage of teachers and that as a result class sizes were large. In addition, she explained that the large number of students and lack of personnel made it difficult to give specific attention to students with learning problems. Among the positive points, the school had a computer room that made it possible for students to learn rudimentary computer skills. Education is free and financed by the State. D. Migration and development 137. The arrival of migrant workers to Costa Rica is very important in the country’s social and economic development. As indicated in the previous section, the presence of migrant workers affects the domestic labor market. According to government figures, Nicaraguan immigrants account for 5.5% of Costa Rica’s labor force. [111] In some areas, however, they account for a much larger share of the labor force. [112] These persons contribute to various economic activities that are key for Costa Rica including agriculture, construction, and the services sector, among others. Considering Costa Rica’s growing dependence on labor and the difficulty the Nicaraguan economy has displayed creating jobs, many authors point to the existence of an interconnection and dependency between both economies. [113] 138. For Costa Rica, the immigration of a population equivalent to 7% to 9% of its own population has a major impact. Immigration makes it possible to fill jobs that nationals do not want; in other words, there is complementarity between the local labor force and the Nicaraguan labor force. [114] In addition, the presence of Nicaraguan labor that is cheaper than local labor helps bolster the productivity of strategic sectors such as agro-industry and farming, of both traditional products (coffee, sugar cane, bananas) and the non-traditional ones (pineapple, citrus fruits, melons, heart of palm, ornamentals, cassava, and macadamia nuts, among others). Several authors agree that the presence of Nicaraguan migrant workers is vital because it drives down production costs –migrant workers are willing to work for wages lower than the minimum legal wage- and thus helps maintain the competitiveness of certain strategic activities in agriculture and agro-industry. [115] At the same time, the presence of Nicaraguan migrant workers is beneficial because it makes it possible for local labor to engage in other productive work (i.e., the possibility to hire migrant domestic service workers at low wages allows Costa Rican men and women to join the labor market) who would otherwise have to work at their homes. Furthermore, migrant workers and their families impact on the local economy because they consume goods and services and because their presence injects vital young labor to activities such as agriculture. Migrant workers also contribute to the economy through their taxes. In this connection, more than two-thirds of the Nicaraguan migrant workers are documented, and so contribute to the state through their taxes. Nevertheless, it is important to indicate that a decrease in the prices of goods produced in Costa Rica such as sugar cane and coffee have generated unemployment among Costa Rican workers too. 139. In addition, the presence of migrant workers and their families has an effect on the provision and expansion of the social services provided by the Costa Rican State. On the other hand, their access to government services such as education, health, housing, and other benefits, naturally has an effect on governmental social spending. 140. From the standpoint of Nicaragua, the massive presence of its nationals in Costa Rica is also of great importance. The exodus of workers makes it possible to release labor that the local economy cannot absorb. Migration also diminishes the burden on the State of having to provide certain basic social services. Furthermore, Nicaragua benefits from the remittances sent by its nationals from Costa Rica. One study indicates that Nicaraguans in Costa Rica send approximately US$ 108 million annually to their families and friends in Nicaragua; this does not include goods such as clothes, tools, and household goods. [116] 141. In Costa Rica, Nicaraguan migrant workers find employment in various activities in the primary, secondary, and tertiary sectors. These activities, as explained above, do not absorb local labor, or only absorb a limited percentage of it. The migratory flow has generated a gradual process of labor market segmentation, whereby relatively unskilled foreigners, such as the Nicaraguans, hold the jobs that involve the most heavy physical labor, are the poorest paid, and that generally are characterized by great flexibility concerning hiring and dismissal practices. [117] 142. The activities in which Nicaraguan migrant workers are employed include the following. In the north, many migrant workers find employment in agriculture in harvests, planting, and packing of products for export, such as coffee, sugar cane, tubers, and fruits. In the Atlantic region, most work on the banana plantations. In both regions part of the migration is seasonal. [118] In the central region, meanwhile, migrant workers find employment in construction, [119] domestic work, cleaning, security, or retail sales. A smaller number (18%) are self-employed (some as hair dressers, cobblers, or artisans), or as small entrepreneurs. [120] Many Nicaraguans also work in the informal sector selling fruit, vegetables, candy, auto parts, and other goods. [121] 143. There is less information on migrant workers who are not of Nicaraguan origin. Academics and authorities, however, explained that these persons are engaged in a wide array of activities, particularly in the services sector. A percentage, especially South Americans, U.S. citizens, and some Europeans, work in the area of production and services (technology, tourism, education, and others). [122] 144. The presence of migrant workers and members of their families, and their demand for social services such as education, health, housing benefits, and other services, as indicated, has an impact on the Costa Rican economy. Although there are no precise figures on the impact on the public treasury of consumption of the above-mentioned services by foreigners, several studies indicate that it tends to be rather limited. According to a document prepared by the CCSS, it is estimated that the cost of care for foreign patients accounts for 4.4% of annual government spending on health. The same study indicates that 5% of the patients hospitalized and 4% of emergency services were used by foreigners in 1999 (many of these persons contribute to the system). [123] In terms of the cost in educational terms, while there are no studies on the cost of financing the education of foreign children, according to data from the Ministry of Public Education, in 1999 some 2.2% of the students enrolled were Nicaraguan. [124] With respect to housing benefits, there are no precise studies on government disbursements to help foreigners. Even so, from 1986 to 1999, only 1,736 foreigners (and their families) benefited from the loans extended by Banco Hipotecario de la Vivienda [125] (119,536 Costa Ricans benefited from these loans from 1991 to 2001). [126] Furthermore, the government has invested in infrastructure, such as building streets and access roads, sewerage, health centers, schools, providing electricity, police checkpoints, and others, in marginal urban sectors where foreigners live. E. Social repercussions: discrimination against migrant workers and members of their families 145. The presence of migrant workers and their families, especially when massive, may have a profound impact on the receiving countries. [127] Migrant workers and their families interact with the local population at work, at home, at health centers and schools, and during administrative procedures or dealings with authorities. The interaction between the local population and resident foreigners may often cause friction as a result of competition, resentment, or lack of understanding. In this respect, it should be noted that migrant workers, especially undocumented ones, are especially vulnerable to expressions of xenophobia and discrimination that are latent in every society. [128] 146. In relation to the treatment accorded to migrant workers, the team from the Rapporteurship was able to note that in Costa Rica there is a certain degree of discrimination against persons of Nicaraguan origin. In order to clarify the ideas, following the definitions used by the annual report that the Rapporteur prepared the previous year, we define discrimination as “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.” (Article 1). The definition derives from the International Convention on the Elimination of All Forms of Racial Discrimination. [129] 147. Several sources mention that Costa Rica is affected by problems of discrimination against migrant workers and their families. In its final observations in relation to the report submitted by Costa Rica on the situation of discrimination, the Committee on the Elimination of Racial Discrimination indicates: “The Committee is also concerned at the living and working conditions of migrants, most of them from Nicaragua, who may become victims of discrimination in terms of article 5 of the Convention.” [130] Similarly, several analyses, including the Estudio Binacional sobre la Situación Migratoria entre Costa Rica y Nicaragua, [131] prepared by the Proyecto Estado de la Nación at the request of the IOM, studies by the Fundación Arias, [132] FLACSO, [133] and articles by independent academics, [134] indicate that there is discrimination against migrant workers, especially Nicaraguans. The reports indicate that the discrimination suffered by migrant workers and their families does not reflect a State policy, but rather has to do with a negative predisposition with respect to migrant workers on the part of the population. The discrimination to which these persons are subjected takes, among others, the following forms: (a) abuse or mistreatment by government authorities; (b) harassment, resentment, and stigmatization by sectors of the local population; and (c) abuse and discrimination in the labor market, especially in regards to wages and benefits. 148. The Government of Costa Rica argues that there is no policy of discrimination against migrant workers and that the State not only respects human rights but provides a series of services, including health, education, and subsidies to the migrant population. In regards to non-official instances in which discrimination occur, in its latest report to the Committee on the Elimination of Racial Discrimination, the Government indicated:
Differences of accent and some physical features that characterize the Nicaraguan migrant population are elements that have very subtle been used in some areas of the Central Valley to isolate that population; to them is also attributed a peculiar propensity to resort to violence to resolve their everyday problems. In contrast, their devotion to hard work is recognized as a positive characteristic. [135] 149. As regards the situation of discrimination against migrant workers in Costa Rica, the opinions received by the Rapporteur’s team during its visit were highly divergent. On the one hand, government officials, including the current and previous vice-minister of interior and police, the previous director of the DGME, and officials from the Costa Rican Ministry of Foreign Affairs during the past and present administrations indicated that there is no discrimination against migrant workers and their families in Costa Rica. Researchers and members of civil society organizations, to the contrary, agreed in noting that the problem exists and is serious. The Ombudsman indicated that there were problems of discrimination, and that unfortunately there was a negative perception of the presence of Nicaraguans on the part of a sector of the population. Nonetheless, he explained that the problem has nothing to do with a state policy that fosters discrimination. In the second visit, however, Ombudsman Echandi nuanced his views and indicated that in Costa Rica migrant workers did not suffer worse discrimination, and that the alleged negative expressions by the local population regarding the presence of Nicaraguans were isolated. In a survey carried out by FLACSO it was found that Nicaraguans have a more positive perception in regards to their work opportunities and access to social services than Costa Ricans. [136] 150. With respect to the presumed abuses committed by the authorities against migrant workers, researchers and members of civil society indicated that these actions are frequent. Among these actions are physical mistreatment, abuse of authority (for example requesting documents indiscriminately, detaining persons arbitrarily, recurring to threats, destruction of documents, and verbal abuse), and omission of duty when refusing to investigate complaints of abuses committed by government agents. Many of these actions are carried out during police operations in which immigration officials participate. These excesses against migrant workers are often committed by public officials such as regular police agents or personnel from the Migration Police. The same sources complained that many of those incidents were not properly investigated nor punished. Many of the persons interviewed also emphasized that the perception of migrant workers varied considerably depending on the level of instruction of the state agents. The government officials, to the contrary, agreed in indicating that they did not have information in this respect, and that in any event these were isolated cases that would be punished forcefully. Nonetheless, they emphasized that if such situations as those described arise in the future, the pertinent investigations would be opened to determine liabilities and punish or suspend those responsible. 151. In order to illustrate that kind of problem the Rapporteur is referring to, it was learned that several complaints had been lodged with the Ombudsman on abuses of authority by the police. One corresponds to physical mistreatment and verbal abuse against foreigners during operations to seize merchandise from street vendors situated outside the Heredia market. While the authorities proceeded against all the persons selling merchandise, according to the complaint, their conduct was particularly vehement and offensive against Nicaraguan women. [137] Another complaint describes a beating by police agents of a minor of Nicaraguan origin and the harassment and abuse of authority to which a woman, related to the youth and who stepped forward to defend him, was subjected by agents that insulted and detained her without justification. [138] A third complaint describes a woman entrepreneur who is the owner of a night club in San José frequented by Nicaraguans. This person filed a complaint with the Ombudsman indicating she was the victim of harassment and abuse of authority by police officials who regularly conducted searches in her business. In this case, in addition to the abuses committed during police operations in which the agents mistreated the customers and employees, in its report, the Office of the Ombudsman questions the procedure used by the police agents. The Ombudsman explains:
152. As for the alleged harassment, resentment, and stigmatization of immigrants by sectors of the local population, academics and members of civil society indicated that in a considerably predominant sector of the local population there is a negative predisposition to migrant workers, especially Nicaraguans. These sources expressed that the negative perception of Nicaraguan workers is often accompanied by social stigmatization. A certain part of the population, they indicated, frequently associates Nicaraguan citizens with crime, or stigmatizes them as abusers who try to take advantage of the social system or who are contributing to its collapse. The non-governmental organizations explained that in their view, certain prejudices rooted in part of the Costa Rican society have a negative impact on the treatment and relationship that Costa Ricans have with the migrant workers. With respect to the Nicaraguans, representatives of the NGOs said that they are perceived as criminal, often dangerous. These stereotypes, they explained, reflect clichés usually promoted by tendentious press reports or based on generalizations of specific incidents. According to these persons and the above-mentioned studies, the negative predisposition against some migrant workers at times results in physical assaults or verbal abuse (offensive jokes, insults, and graffiti). Representatives of the NGOs stated that discrimination also depends on the level of schooling and social position of the persons, since foreign workers with an average or high level of education are rarely subjected to such abuse. The stigmatization is directed primarily against persons with a rather low level of schooling. Similarly, there is discrimination based on nationality. While persons from the United States, Europe, or the Southern Cone generally receive deferential treatment from the population, Central Americans, Caribbeans, and Colombians are more likely to be the victims of discrimination and mistreatment. 153. The state authorities explained that such accusations are exaggerated and unfair. In this regard, they explain that attacks, abuses, and other problems that migrant workers suffer are isolated incidents that do not reflect the feelings of the vast majority. Although the authorities with whom the Rapporteur’s team met did not mention it, after the last immigration amnesty, the Government of Costa Rica carried out large-scale information campaigns to inform and sensitize the population to immigrants’ rights and contributions. [140] Ombudsman Echandi explained that even though much is said about the alleged distrust and hostility that one assumes that the population displays against Nicaraguan workers, individually, Costa Ricans entrust the care of their children to Nicaraguan domestic workers and the care of their homes and personal property to Nicaraguan security guards. These considerations, however, contrast with the views stated by the High-level Inter-institutional Commission on International Migration, a high-level state entity that studies the formulation of a new migration policy, and which indicates:
154. Several opinion polls indicate that part of the population has a negative perception of Nicaraguan migrant workers and their families. Based on public opinion polls, Alvarenga notes that in 1997, 44% of the local population opposed the presence of Nicaraguans in Costa Rica. [142] Public opinion surveys by the Instituto de Estudios Sociales en Población (IDESPO) of the Universidad Nacional show the same trend: this study notes that 34% of those surveyed indicated that the Nicaraguans only bring problems to Costa Rica; 51% said that Nicaraguans should not be allowed to entering Costa Rica; 52% said that Nicaraguans are the same as Costa Ricans; and 87% said that Nicaraguan customs are different from Costa Rican customs. In contrast, 73.2% and 69.9%, respectively think that Nicaraguans are very good workers and help the country’s economy. [143] The negative perception on the part of a considerable part of the Costa Rican population with respect to Nicaraguans who reside in Costa Rica is also observed in opinion polls conducted by SID/Gallup. [144] In contrast, a recent study by the Inter-American Development Bank (IDB) argues that Nicaraguan citizens in Costa Rica are not victims of exclusion or discrimination. The investigation indicates that the inferior status of the migrant workers vis-à-vis the local population, in terms of purchasing power and access to social services, is rather due to the structural vulnerability of migrant workers. [145] 155. Abelardo Morales, a researcher with the Facultad Latinoamericana de Ciencias Sociales, explained that the negative perception on the part of a certain percentage of the population derives in part from the fear that many Costa Ricans have that the presence of Nicaraguan citizens will have negative repercussions on the country’s economic and social welfare, and that it may transform the country’s culture and way of life. That perspective, he indicates, is reinforced by the large number of foreigners who live in the country (as indicated at the beginning of this section, from 7.5% to 9% of the population living in Costa Rica is Nicaraguan), which makes many natives feel threatened. In addition, Morales thinks that Costa Rican society does not recognize multicultural characteristics when it looks at itself. Even though at least 1.7% of the population is indigenous, 1.79% is Afro-Costa Rican, 0.21% is Chinese, [146] and despite the constant flow of migrant workers and the fact that foreigners account for up to 9% of the population, he underscored that the Costa Rican people perceive themselves as homogeneous. This sentiment, he indicated, makes it difficult to accept and absorb certain groups with a different phenotype, such as the Nicaraguans. [147] 156. The information collected by the Rapporteur’s team on the labor market also indicates that there is discrimination against foreigners, especially persons of Nicaraguan origin and with little schooling. At least four studies consulted in the preparation of this report document discriminatory practices, including the already-cited Estudio Binacional sobre la Situación Migratoria entre Costa Rica y Nicaragua, [148] a research project by the Fundación Arias, [149] working documents of FLACSO, [150] and articles by independent academics. [151] (This point is developed in greater detail in section IX, Labor Rights and Economic, Social and Cultural Rights.) 157. The Rapporteurship would like to highlight the willingness of the Government of Costa Rica to facilitate access to public services for migrant workers and their families. In the case of undocumented persons, the law imposes certain restrictions, even so, in these cases persons are not automatically deprived from protection. In the case of the health sector, for example, primary and emergency care (including hospitalization) are extended to all persons in the country. In the case of medical check-ups, however, only those affiliated with the CCSS are beneficiaries. To affiliate with the CCSS, one must have a residency card or work permit, thus undocumented persons cannot gain access to such insurance. [152] As for education, the law does not pose obstacles to the children of migrant workers, independent of their immigration status. A recent ruling by the Fourth Chamber of the Supreme Court [153] extended the right to receive a school allowance (consisting of clothes and school supplies) to all minors who attend school. [154] In regards to housing, as already indicated, since 1986 the Government of Costa Rica promoted a housing program for poor families and middle sectors. Through this initiative, Costa Ricans and foreigners can gain access to loans provide by the Banco Hipotecario de Vivienda. Furthermore, the Instituto Mixto de Ayuda Social (IMAS) earmarks resources to a program to assist families in poverty or extreme poverty. One study estimates that almost half of the documented Nicaraguan population benefits from the IMAS programs. [155] F. Migration policy and practice 158. The law governing the immigration of foreigners to Costa Rica is based on Article 22 of the Constitution, which grants freedom of movement for Costa Ricans – not for foreigners, whose are subject to the immigration regime. [156] That rule is established in Law No. 7033 of August 4, 1986. The law assigns competence to various state agencies with respect to the entry and stay of foreign persons in Costa Rican territory, and it establishes the requirements and procedures in this regard. Following is a description of the most important characteristics of Costa Rican immigration law. State Institutions 159. The Dirección General de Migración y Extranjería (DGME) is responsible for implementing immigration policy. The law assigns various functions to the DGME, which can be summarized as follows: authorization, control, and surveillance of the entry and stay of foreign persons in the country, based on the immigration rules and categories; oversight of the entry and exist of persons to and from the country; the issuance of exit and re-entry visas as appropriate; and the issuance of passports and of identification documents for foreigners residing in Costa Rica. [157] 160. The National Migration Council is a consultative and advisory body. The Council is made up of representatives of the ministries of Foreign Affairs and Worship, Interior and Police, Public Security, Labor and Social Security, and Justice, and one representative from the Costa Rican Tourism Institute. The law assigns the Council the following functions: to advise and support the implementation of immigration policy; to set selection criteria for the admission of foreigners; to consider and make recommendations on residency applications; to propose modifications to the legislation and to bilateral and multilateral treaties on migration; to promote operating and technical assistance agreements vis-à-vis inter-governmental agencies; and to set requirements for residency applications. [158] 161. The Office of the Ombudsman (Defensoría de los Habitantes) is an organ under the legislative branch that enjoys operational and administrative independence. It looks into the legality, morality, and justice of the acts and omissions in the administrative activity of the public sector, insofar as they may affect the rights and interests of the country’s inhabitants. It may act on its own initiative or upon the request of a party, through complaints that are investigated, resulting in recommendations. This agency has received complaints related to violations of the human rights of immigrants in Costa Rica. In addition, it has assumed a role of coordination and intermediary between state agencies and civil society. [159] 162. The Permanent Forum on the Migrant Population was established in 1995. This forum was designed to promote the exchange of ideas between the government and civil society. Several non-governmental organizations, public institutions, research centers, and cooperation agencies and entities participate in it. The Forum’s general objective is to “impact on the enactment and enforcement of comprehensive and integrative policies to address migration dynamics that ensure human rights and the quality of life of the migrant population in the national territory.” The Forum has four committees: legal matters, dissemination, social services, and labor issues. The Forum has facilitated institutional coordination on issues such as immigration amnesty, the celebration of the week of the immigrant, and joint operations or round-ups. The Office of the Ombudsman serves as the technical secretariat for the Forum. [160] Civil Society Organizations 163. Several non-governmental organizations work in Costa Rica for the defense and promotion of the human rights of migrant workers and their families. Some of these established the National Network of Civic Organizations for Migration, which brings together many of the organizations that met with the Rapporteur and his team during their visits. Several of these organizations also belong to the Permanent Forum on the Migrant Population. These organizations provide social and legal assistance to the immigrant population in general, and in some cases to a group of specific workers, such as domestic workers or agricultural workers. Legal Regime for Migration 164. The above-mentioned law establishes the Special Migration Police, as a corps to control and exercise surveillance over migratory movements. The functions of the Special Police include: to inspect hotels and other accommodations offering lodging to investigate the immigration status of foreign workers by going into workplaces; visiting places of leisure or public entertainments to conduct immigration checks; to cooperate in dispatching and offloading persons in ports of entry; to request to see the identification of foreign persons; to question and receive statements from persons alleged to be undocumented immigrants and to detain them for the time that is strictly necessary; and to ensure that foreign persons are respecting the conditions of their residency card or visa, engaging in such activities as are authorized. [161] The DGME is assisted by consular representatives who serve as immigration agents abroad. [162] 165. The migration legislation allows foreigners to enter and remain in the country under different categories. Foreigners may be admitted to Costa Rica under two broad categories, residents and non-residents. [163] 166. The residents can be admitted as permanent residents or persons temporarily in the country, depending on their intention to stay in the country. Permanent residents can reside indefinitely in the country, and can work in whatever economic activity they choose to pursue. Temporary residents can reside in the country for one year, which can be extended for equal periods, so long as they meet the requirements established for each one. Each of these categories, in turn, is divided into sub-categories. Persons temporarily living in the country includes scientists and professionals hired to provide professional services; businesspersons; students; clergy; asylum seekers and refugees; spouses and relatives of the persons mentioned; the owners of tourist and recreational facilities; and other persons who despite not being included in the described categories are so authorized by the DGME. [164] The residency cards, documents issued to foreigners who are admitted as residents, must be processed in the country of origin or residence of the person who wishes to migrate to Costa Rica. 167. A person may be admitted as a non-resident if in one of the following eight sub-categories: tourist; professional or scientist invited by public or private institutions based on his or her area of expertise or special skill; travel agents or merchants; artists and athletes; passengers in transit; local cross-border transit; company crew for international transport; and migrant workers. [165] 168. Persons temporarily living in the country may apply for permanent resident status. In addition, foreigners who enter as non-residents may request a change in immigration status to that of persons temporarily living in the country, so long as they have not entered the country as tourists; passengers in transit; local cross-border transit; crew of international transport companies; and migrant workers. [166] Furthermore, undocumented foreigners can seek the status of persons temporarily living in the country if they are called on to regularize their immigration status or when exceptional measures are adopted for the purpose of facilitating the documentation of foreigners who lack authorization to reside in the country. 169. As part of the development of this legal framework, Costa Rica gave impetus to an exceptional immigration regime to regularize the situation of thousands of undocumented migrants. [167] The initiative was undertaken to help alliviate the devastating economic and social effects of Hurricane Mitch in Honduras, El Salvador, and Nicaragua. The measure reflected Costa Rica’s solidarity. After the disaster, Costa Rica decided to afford an opportunity to Central American migrants to regularize their immigration status in order to prevent their deportation, and the effects this would have had for the economies and societies of their countries. The exceptional regime was ordered by Decree 27457-G-RE, of November 24, 1998. Initially, the law was to be in force for six months starting February 1, 1999; it was applied to all Central American citizens living in Costa Rica who had entered the country before November 9, 1998. 170. A total of 152,000 people, 97% of them Nicaraguan, and 1.5% Panamanian, availed themselves of the exceptional regime. [168] In April 2000, a total of 125,000 resolutions had been issued, 95% of them favorable. [169] The government carried out a campaign to publicize the amnesty, to encourage undocumented migrants to avail themselves of the opportunity. Non-governmental organizations carried out other activities to urge migrants to avail themselves to the authorities in order to obtain the amnesty. . 171. The non-governmental organizations that provided assistance to the migrants to meet the requirements for the amnesty and to regularize their immigration status explained to the Rapporteur’s team that several obstacles kept many migrant workers from form obtaining this benefit, or from continuing to be protected by it, due to the duty to renew documentation annually – unless one can show that one has been a continuous resident for 10 years. For example, the documents required by the Costa Rican authorities must be obtained and legalized in the country of origin. Specifically, these are passport, birth certificate, and criminal or police record, though it was possible to postpone their submission with an out-of-court. The documentation requirement was difficult to meet for the low-income migrant population, particularly because the documents could not be obtained through the consulates, making it necessary to obtain them in the country of origin and legalize them in the respective Costa Rican consulate. For the poorest migrants, the cost of obtaining these documents impacted on the possibility of regularizing their situation or/and keeping their status. Another difficulty associated with renewing the residency card was the impossibility of transferring files when one changes residency within Costa Rica. In view of this problem, the executive issued Decree 29878-G, which authorizes persons who are submitting their documentation for permanent residence, in those exceptional cases in which it is materially impossible to obtain the criminal records or birth certificates, to be exempted from submitting them by presenting a brief to the Director General of Migration showing that it is impossible. Along the same lines, in July 2002, the Executive issued an amendment to the regulation of the 1999 exceptional regime. The modification authorizes migrants, when it is impossible to submit the documents mentioned, to be able to make a statement before a notary public. [170] 172. Recently, the Vice-Minister of Interior submitted a consultation to the Attorney General regarding the legality of processing the applications for residency in Costa Rica, which was taking place on a regular basis instead of it being done at the consulates. The Office of the Attorney General determined that the procedure violated the law, but that the resolutions issued under this procedure were valid. In August 2002 the Executive ordered that the requests received to date be processed, and that in the future such processing be exclusively through the consulates. [171] This measure is unfortunate, for it does not allow persons who enter Costa Rica to regularize their status in country. In addition, it entails additional expenses, such as sending the documents from the Consulate to the DGME, and charging the cost to the applicant. In lieu of the effects that this measure would have on migrants attempting to regularize their status in Costa Rica, the Sub-director of the DGME issued a memorandum on November 6, 2002, ordering that some of the petitions be processed in Costa Rica when petitions were based on marriage to a Costa Rican or were children were petitioning to remain with their parents. 173. All persons who enter Costa Rica must undergo immigration controls. It is only possible to enter Costa Rica through posts that have been set up for this purpose. When verifying a person’s entry, the immigration authorities may deny entry to an individual who does not present the necessary documentation or falls under one of the grounds for refusal of admission. These grounds are: being a carrier of a communicable disease, being internationally recognized as a drug trafficker or a person who profits from prostitution, [172] having been convicted or prosecuted for a common crime that carries a sentence greater than one year, having been deported or expelled (unless the competent authority has authorized re-entry), and having a record that leads one to presume that the person will endanger national security, public order, or the way of life. [173] Additional grounds include: when one is surprised seeking to evade an immigration control or entering through an unauthorized place; when one has been deported or expelled and does not have a permit for re-entry; and when one’s name is on the list of undesirable persons kept at the DGME. The decision to refuse entry is called rejection; no administrative or judicial appeals are available to challenge it. Those who are rejected must re-embark by the same means of transportation by which they arrived, or be taken to the country of embarkment or origin, or to a third country. [174] 174. It is considered that a foreigner who has entered through an unauthorized place without being subject to the immigration control, or who does not meet the conditions for entry and stay under any of the various immigration categories, has entered the country illegally, and that his or her stay in the national territory is not authorized. When the illegality of the entry or stay of a foreign person in Costa Rica is determined, the DGME may: call on the person in question to regularize their status request him/her to leave the country within a given time frame; order his or her deportation; or request that his or her expulsion be ordered. [175] 175. Deportation by the Special Migration Police is the act whereby a foreigner who is in one of the following situations is placed outside the national borders: having entered the country clandestinely or without abiding by the migration laws; having entered or stayed in the country based on false statements or documents; staying in the country beyond the authorized period, or after one’s residency is cancelled; or when, being a non-resident, one’s authorization to remain in the country is canceled and one does not leave the country in the authorized time for doing so. The foreigners must be deported to their country of origin or to a third country. [176] 176. An expulsion is the order the Ministry of Interior directs to a foreign resident to leave the country in a given time period. The reasons for ordering an expulsion are: that the government considers the presence of the person in question harmful, or that his or her activities endanger the national security, tranquility, or public order, independent of such a person’s immigration status; that the person has been convicted and sentenced to a prison term exceeding three years; and that the person have obtained the status of asylee or refugee and does not meet the conditions agreed upon for granting much immigration status. The expulsion procedure is as follows. The DGME requests the Legal Department of the Ministry of Interior to file the charges. Foreigners are notified and have three to five days to present the arguments in his or her defense. The Legal Department weighs the charges and the minister issues the respective resolution. Notice of the resolution ordering expulsion is given personally to the individual in question, and may be appealed within 24 hours, before the Third Chamber of the Supreme Court of Justice. [177] Pending the ruling on the appeal, the expulsion order is suspended. The minister may request that a foreigner whose expulsion has been ordered be detained when, based on his or her personal background, it is presumed that he or she will seek to evade the order. [178] 177. In November 2001, by Decree No. 29964-G, a new procedure was added that was not provided for in the law: cancellation of the stay. The decree explains that the DGME may limit the stay of residents and non-residents when they do not meet the conditions for entry into the country. The resolution that orders cancellation of the stay is tantamount to an order for the person to leave the country, and the threat that, if the person does not do so, he or she will be deported. Such a resolution may be challenged by a motion for direct revocation, or a motion for appeal. The measure entails a prohibition on re-entering the country for five years. 178. The law establishes the grounds for cancellation of residency and loss of immigration status. These refer to meeting the conditions of the respective status, including staying in the country and renewing the documentation; re-entering without authorization or evading immigration controls; and lodging, hiding, or aiding and abetting a foreigner who is in the country in violation of the immigration laws. [179] The law provides that the exit of nationals and of foreigners be they permanent residents or persons temporarily living in the country from Costa Rica should be preceded by the issuance of an exit visa. This requirement, though provided for in several articles of the immigration law that are in force, is not being enforced. [180] See the comment by the Rapporteur in Section VII, Due Process Guarantees. 179. The law states that residents must carry their immigration ID document, which they must show the authorities whenever required. [181] The immigration document for permanent residents and persons temporarily in the country is renewed annually. Permanent residents who show evidence that they have resided continuously in the country for 10 years may renew their residency card every five years. Foreigners are under an obligation to communicate any change in address to the DGME, and to notify the police of the canton or district where they are residing. [182] 180. The law defines a series of administrative infractions and offenses for violating the immigration regime. These can be summarized as follows: A foreigner who makes false statements or presents false documents to obtain any immigration document will be punished by deportation. A foreigner who hides or does not communicate his or her change of address will be punished by 80 to 100 days fine by the competent judicial authority, and his or her authorization to remain in the country shall be revoked. The second time, the punishment will be doubled. A foreigner who has been deported or expelled and who re-enters without authorization will be punished by six months to one year imprisonment. A foreigner who enters the country through an unauthorized place will be subject to the same punishment. [183] 181. The migration law establishes that the resolutions of the DGME may be challenged by motion for revocation and appeal when the interests of foreign persons are harmed in relation to their immigration status, or when deportation of a foreign person is ordered for one of the following reasons: remaining in the country once the authorization for doing so has expired, cancellation of residency, or cancellation of the authorization to stay in the case of a non-resident, or he or she does not leave the country in the time period allowed. [184] The remedies must be pursued within five working days counted from the notification of the respective ruling. The appeals do not need to be specially formulated; it is sufficient that they indicate that revocation of the administrative act is sought. At that moment they can present evidence. The DGME must rule on a motion for revocation within 30 working days. If the appeal is not ruled on it shall be considered denied. When the foreign person has invoked the remedy of appeal on a subsidiary basis, the matter automatically goes to the Minister of Interior and Police for decision. If the revocation is denied, the DGME allows the appeal, and summonses the foreign person to appear within three days before the Minister to uphold his or her rights. The Minister has 15 working days to decide the appeal. Filing a motion for revocation and appeal for the three reasons mentioned above suspends the measures ordered until a final decision is issued. There is no administrative remedy whatsoever against the Minister’s decision. [185] 182. During the administration of President Rodríguez Echeverría, the government worked on a draft amendment to the General Law on Immigration and Alienage. Aware of the complexity of the problem, and with the objective of preparing a solid draft amendment, the Rodríguez Echeverría administration requested the advice of foreign experts with experience in similar proposed legislative reforms in other countries. After months of work, the executive completed a new immigration bill and sent it to the Legislative Assembly for adoption. According to the government’s response to this report, due to the fact that the proposed bill did not fulfill expectations in terms if ensuring an organized migration where human rights were protected and ensured, the executive withdrew it from Congress. Currently the National Migration Council is drafting a new bill. G. The guidance, smuggling and trafficking of migrants [186] 183. During the visit as well as in their prior research, the Rapporteur and his team did not find much background on the scope of this problem in Costa Rica. As a transit country, Costa Rica is used by many migrants on their way to Mexico, the United States, and Canada. This situation means that persons engaged in the smuggling of migrants operate in the region, as non-governmental organizations have pointed out. In addition, some studies point to incipient trafficking of persons for sexual exploitation to Costa Rica (Colombian and Dominican women) and from Costa Rica (Costa Rican women who are trafficked to Canada). [187] 184. With respect to the guidance, smuggling and trafficking of migrants, the state officials interviewed by the Rapporteur’s team stated that this phenomenon is rather uncommon in Costa Rica. Even though it is of limited scope, the problem, these officials stated, does worry them, especially trafficking for sexual exploitation. It must be noted that, as indicated, Costa Rica recently ratified the Protocol to Prevent, Suppress and Punish Trafficking of Persons, Especially Women and Children, and the Protocol against the Smuggling of Migrants by Land, Air and Sea. Under Article 7 of the Constitution, treaties such as the protocol cited that are approved by the Legislative Assembly enjoy a rank superior to that of regular statutes. Until the ratification of this Protocol, Costa Rica had not criminalized the trafficking of persons. During its visit, the IACHR delegation collected testimony from numerous non-governmental organizations that indicated that the guidance, smuggling and trafficking of persons to Costa Rica is much more widespread than commonly thought. These persons expressed great concern over the failure of the authorities to address this problem. 185. In the response to this report, the government disputes the allegations previously stated. It indicates that it is working on initiatives to promote foreign collaboration in the fight against migrant smuggling and trafficking. In the domestic arena, the Ministry of Foreign Relations affirms that it submitted a bill to Congress that includes the criminalization of the smuggling and trafficking of immigrants. Furthermore, the government says that the new draft immigration bill shall regulate these matters. H. Due process guarantees 186. During its on site visits, the Rapporteurship studies the protection of and guarantees for the right to due process. This analysis is based on interviews and documentation collected during its work and its general research. In this regard, the Rapporteur will focus on due process guarantees in the immigration procedures of rejection, deportation, and expulsion of migrant workers. In order to analyze and assess the situation of due process guarantees in Costa Rica, this report uses as a reference the elements of due process set forth in the 2000 Annual Report of the Rapporteurship. Accordingly, this analysis will examine the following points: (i) limitations imposed by international human rights law on immigration policies; (ii) the principle of non-refoulement and the Convention Against Torture; (iii) the absence of discrimination; (iv) the principle of legality; (v) the prohibition on collective expulsions; (vi) the existence of an accountable and impartial adjudicator; (vii) the right to be heard; (viii) the right to information, translation and interpretation; (ix) the right to legal counsel; (x) judicial review; and (xi) consular assistance. In addition, the Rapporteurship takes note of the judicial remedies pursued by migrants and other persons to protect their rights, as well as the complaints filed to the Office of the Ombudsman. Judicial Remedies and Actions 187. All persons, independent of whether they are authorized to enter or remain in Costa Rica, may go before the Constitutional Chamber of the Supreme Court of Justice through writs of amparo and writs of habeas corpus to uphold or re-establish their constitutional and other fundamental rights. [188] These remedies have been used and represent a useful tool for evaluating the protection of judicial guarantees by the DGME or by the highest court in the land. Limitations imposed by international human rights law on immigration policies 188. The Rapporteurship did not receive information on the limitations on the right of nationals to leave Costa Rica. The General Law on Migration and Alienage establishes an exit visa for nationals and foreigners, but it appears that this provision is not being enforced; regardless its mere existence in the Costa Rican normative framework constitutes a violation to the American Convention and thus it should be derogated. In addition, the DGME is authorized to impede the exit of parents with pending child support obligations and persons facing criminal charges. [189] The Rapporteurship indicated in its 2000 Report that restrictions such as exit visas cannot be imposed, since they violate Article 22(2) of the American Convention on Human Rights, on limiting the right to leave any country. 189. The Office of the Rapporteur noted the special protection for the family, guaranteed by the Constitution of Costa Rica, through writs of amparo presented by foreign parents of minors born in Costa Rica, who asked that the interest of the minor who would be forced to leave the country with his/her parents be taken into account. In addition, the Office of the Rapporteur observed cases in which the DGME took into account the interest of the family unit and suspended deportation orders or ordered that a visa be issued, allowing migrants to regularize their status. [190] In addition, the Rapporteur observes that the Supreme Court ruled favorably on both writs of amparo in similar cases in which the DGME had ordered deportation, so long as it was shown that the person was carrying out the procedures for regularizing his or her status. The Rapporteur recalls that prior to initiating the procedures of rejection and deportation of migrants, it is important that prior steps be taken to assure those affected are not nationals. Principle of Non-return (non-refoulement) and the Convention Against Torture 190. Costa Rica has a long tradition as a country of asylum. This policy was especially marked during the 1980s, when it received a large number of Central American refugees. As explained above, according to the U.S. Committee for Refugees, in December 2000, Costa Rica housed 7,300 refugees. [191] In addition, in the introduction to this report, it was also explained that even though the Rapporteur does not have a mandate to look into the situation of refugees, he considers that respect for the rule of non-refoulement is an essential element of due process in immigration matters. In this regard, the Rapporteur wishes to note the disposition of the Government of Costa Rica to carry out its international commitments arising from the Convention relating to the Status of Refugees, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Inter-American Convention to Prevent and Punish Torture, and other regional instruments relevant to the situation of asylum-seekers. [192] Accordingly, the Office of the Rapporteur is concerned to find at least one case in which a foreigner was rejected at the airport and was deported, even though he or she presented an application for political asylum. The latter should be sufficient to allow a foreigner to enter Costa Rica. [193] Absence of discrimination 191. Costa Rica’s immigration law establishes different categories of immigrants based on their level of education, economic activity, and intent to remain in the country. The Rapporteur observes with concern the differentiation in the classification of foreign persons based on the first two criteria mentioned in the immigration legislation. Businesspersons, scientists, professionals, and specialized personnel hired to provide professional services are classified as persons temporarily living in the country. Under this status, these persons may request to be granted the status of permanent residents. Migrant workers with a limited level of schooling, conversely, are classified as non-residents and cannot aspire to becoming permanent residents. [194] 192. The distinctions drawn in the Costa Rican legislation imply different treatment based on individuals’ level of schooling and economic position. The Rapporteurship wishes to emphasize that professionals, scientists, businesspersons, agricultural workers, machine operators, or domestic service employees of foreign nationality are all, without distinction, persons who perform a remunerated activity in a state in which they are not nationals. According to the definition of the International Convention on the Protection of the Rights of All Migrant Workers and Member of Their Families, of the United Nations, all are migrant workers. [195] In the view of the Rapporteur, the distinction between persons temporarily living in the country and migrant workers in Costa Rican immigration law entails distinct consequences and impacts on the living conditions of persons who are in one or another category. In this regard, the differentiations established in the law imply discriminatory treatment based on conditions such as foreigners’ social status, economic level, and ability to perform skilled labor. Accordingly, the Rapporteur considers that this distinction in the immigration law violates Article 1 of the American Convention on Human Rights. The government deemed it appropriate to clarify that in its view migrant workers are seasonal workers and thus they do not desire to stay in the country in which they are working. Therefore, the legislation does not discriminate against them. The Rapporteurship, however, has found that that is not the case in Costa Rica, migrant workers are not seasonal workers and they would benefit from regularizing their status, just as much as professional migrant workers who are able to do so. 193. In the study of the complaints filed with the Office of the Ombudsman, the Rapporteur found cases in which discriminatory enforcement of the law is alleged, in the manner and places in which it is decided to carry out control operations. It is important for the DGME to heed the recommendation of the Ombudsman that immigration enforcement operations should request identification of all persons, without distinctions based on nationality, and that the Special Migration Police should always be present. The Rapporteurship considers Circular No. 48 from the Director General of Government Forces on how identification documents should be requested of people to be a positive initiative (see also Section VII). The Rapporteurship hopes that the necessary measures are taken to carry out the suggestions of that circular. [196] Principle of legality 194. Human rights organizations told the Rapporteurship that in Costa Rica, in practice, there was no difference between rejection and deportation. The Costa Rican government indicates in its reply to the report, that this statement is false and that the presumed deportation must have been a rejection. As explained, these are essentially different legal categories that are applied to migrants who are in different factual circumstances. In addition, one case is described in which a migrant met one of the grounds for expulsion, and the DGME, in order to expedite his departure, cancelled his resident status, and tried to deport him. In a very important decision, the Supreme Court protected this person’s right to due process. [197] The Rapporteurship considers that immigration procedures should be carried out abiding strictly by the rules; in other words, the conditions described should be met before an order is given or a measure taken. [198] In addition, the State has the duty to guarantee due process for all foreigners, including those who have violated criminal laws or who are occupying lands that another persons claims to own. [199] In view of the foregoing, the Rapporteurship notes that the adequate application of the principle of legality with respect to the residency requirements. [200] 195. One element that contributes to guaranteeing the principle of legality is that the person affected by the measure can request that it be reviewed by the same official and his or her superior. In Costa Rican law, this takes place through regular motions for revocation and appeal in the administrative process. [201] In order to be able to recur to such remedies, the administrative acts must be duly justified. A deficient justification does not make it possible to pursue available remedies, as the legal basis of the administrative decision is not known – which violates the principle of legality. [202] Jointly with its response to this report, the Costa Rican Government sent a deportation resolution in order to demonstrate that decisions are justified. Nevertheless, the Rapporteurship finds that the justification is insufficient. Prohibition on collective expulsions 196. Several non-governmental organizations also denounced the practice of the police authorities of staging round-ups in work places, particularly in the fruit packing plants or in the fields. On those occasions, these sources explained, the authorities request the workers’ identification documents. Those who have no documentation with them are taken to a bus and transported to the border. The procedure is summary and immediate. The migrant workers are deported collectively, and are afforded no possibility of exercising their right to defense. The Costa Rican government indicates in its reply that although migrants may be transported collectively their cases are decided individually. 197. In meetings with the Rapporteur’s team, government officials acknowledged that in Costa Rica sustained and targeted joint operations are carried out in places described as “problematic.” In these operations, in addition to the officials of the Immigration Police, staff from other agencies in charge of drug control and child protection also participate. The authorities insisted that in the case of round-ups, undocumented or irregular workers receive individualized treatment, and that after they are detained, they are not deported collectively. The Office of the Ombudsman, however, indicated to the Rapporteur that it has received complaints of the practice of carrying out operations that result in the collective deportation of migrant workers. 198. Based on the information collected by the Rapporteur’s team regarding collective deportations, there appears to be a difference between the situation of migrant workers and other migrants apprehended in San José and the neighboring areas, as compared to those persons detained in other parts of the country. In San José and vicinity, the immigration authorities generally carry out individual deportations. In the rural areas, and particularly in border areas, in contrast, collective deportations appear to be common. According to the data obtained, collective deportations of migrant workers take place under the guise of collective rejections. The practice of massive deportations, especially in border areas, entails a violation of due process the rules and guarantees, and of the express prohibition in Article 22(8) of the American Convention on Human Rights. Responsible and impartial adjudicator 199. Numerous sources alleged that Nicaraguan migrant workers are deported expeditiously from Costa Rica, without any hearing or adequate process. Persons of Nicaraguan origin regularly use the expression “me corrieron” (“they chased me out”) to describe the process whereby they are transported in a bus to the other side of the border, without having been brought before an immigration authority (essentially without any process). Several representatives of NGOs indicated that there is no record of persons deported, so it is not possible to inquire into the whereabouts of a migrant worker who is apprehended by Costa Rican authorities. The ministry of Foreign Relations indicates in its reply that the aforementioned record exists. In this regard, the Rapporteurship is concerned with the fact that this record is not available to the public and to NGOs, who may need to consult it. When persons are expelled without the individualized process established by law for each case, the right to a responsible and impartial adjudicator is violated. 200. The Rapporteurship also received information on repeated cases in which there is no accountable and impartial adjudicator. Sometimes, deportation works as a punishment of an immigrant who has occupied land owned by a third person and is subject to eviction proceedings. The Rapporteurship learned of an eviction in districts in La Carpio in which immigration authorities denied the applications for residency of the persons targeted by those operations, as indicated in the justification for the respective resolutions. It is possible thus to observe the intent of the authority to recur to deportation to punish conduct that could not be sanctioned by any other means. The deficient justifications of the resolutions led the Supreme Court to grant the writs of amparo to protect the right to due process. [203] In addition, a deficient justification of a resolution gives rise to a defense against the administrative act, insofar as the legal basis for the deportation is not known. The right to be heard 201. In large measure, in the cases presented to the Supreme Court of Justice on deportation procedures, one can observe that the DGME allows migrants to exercise their right to be heard through a sworn statement. This is an adequate means of guaranteeing the right to be heard. [204] Nonetheless, it is important that the migrant be aware of the consequences of the statement they are making to the immigration authorities; in several cases, migrants do not understand the legal consequences of their statements. [205] In addition, they do not receive a copy of the statement they give to the immigration authorities, even though it is part of their immigration file. 202. The Rapporteurship also collected information on deportations that occur immediately and without offering migrant workers the opportunity to explain their immigration status or to present the demanded documents. [206] This happens in particular when enforcement operations are carried out at workplaces. In those cases, migrant workers are deprived of the right to be heard and are deported without any opportunity to challenge the charges and to present or produce relevant evidence. This situation led to the deportation of persons awaiting a decision on their appeals of the decisions denying their application for a residency card on an exceptional basis, even though they also appealed the resolution ordering their deportation. The Supreme Court decided that their freedom of movement was violated, vacated the ruling that ordered the deportations, and ordered that those persons be returned to Costa Rica and remain in the country until their application for residency was resolved. [207] 203. The Rapporteurship reiterates that the right to be heard is part of the minimal content of due process to which all persons should have access. Migrant workers and other foreigners have the right to present evidence and dispute the charges made against them in relation to their immigration status. Accordingly, the immigration authorities should take all steps necessary to ensure these persons’ right to be heard. Accordingly, an official from the DGME cannot refuse to receive a document in which a migrant worker invokes the motion for revocation and appeal of a decision that denies him or her an application for residency. [208] When persons are detained, in addition to being afforded an opportunity to explain their immigration status, they must be given the necessary means to be able to present the information, documents, or evidence needed to show that they are not in violation of the immigration laws of the country in which they are located. Information, translation and interpretation 204. The Office of the Rapporteurship compiled information on the lack of information or deficient information received by migrants subject to immigration proceedings. It is fundamental that migrants be knowledgeable of the procedure in which they are involved, the subsequent steps, and the decisions that the authorities made with respect to whether they can remain in the country. Though it is a brief procedure, the Rapporteurship considers it important to take all measures aimed at ensuring the right to information. For example, it cannot be assumed that a migrant will deduce from the text of a ruling that he or she is going to be deported when it is not so indicated in the operative or is not indicated as of part of that resolution. [209] 205. The Rapporteurship notes that at present the DGME has paid translators and interpreters. In its previous visit, the team had noted that the immigration officers turned to staff of the Ministry of Foreign Affairs and Worship in search of a staff member who could serve as an interpreter. [210] The Office of the Ombudsman and the non-governmental organizations told of various incidents in which the lack of information and timely translation had affected due process guarantees of foreign migrant workers, often resulting in the detention of these persons becoming prolonged for an unnecessary and unjust time. 206. The Rapporteurship insists that a migrant worker, irrespective of immigration status, should be able to understand the legal proceedings to which he or she is subjected, as well as his or her rights and procedural opportunities. Even taking account of scarce resources, the Rapporteurship believes it is important for the immigration authorities to make every possible effort to ensure that migrant workers have translation and interpretation services so as to effectively guarantee their right to information in all proceedings related to their immigration status. Legal Assistance 207. In Costa Rica, a large share of expulsion and rejection hearings are held without the migrant workers affected having legal counsel. In many cases, the persons subject to immigration proceedings do not have any information about their rights or procedural opportunities. One of the fundamental reasons why people do not have legal counsel is the lack of information about who can provide it or how to get it. [211] Additionally, the level of income of a large part of the migrant workers who are involved in expulsion proceedings does not enable them to hire an attorney. The lack of legal assistance is particularly serious for persons deprived of liberty, who, therefore, face restricted access to information. Moreover, and as will be explained below, the possibility of gaining access to legal counsel often has a determinant impact on an immigration proceeding. For example, legal representation may be decisive for a person to be released by filing a writ of habeas corpus. 208. Providing information on immigration legislation and how people can regularize their status or exercise their right to defense when facing an immigration proceeding is one way to guarantee the right to legal counsel. The immigration authorities and civil society can take measures aimed at training migrant workers in their rights and their opportunities to receive legal assistance, as well as to encourage and collaborate with those non-governmental organizations that are prepared to provide free or low-cost legal assistance. The non-governmental organizations interviewed and the Office of the Ombudsman insisted on the need to allow organizations to provide assistance to migrants, and for the UNHCR to have frequent access to the centers of detention so as to be able to provide the legal assistance that detainees need. The Costa Rican government argued in its reply that individuals providing legal assistance have always been granted access to detention facilities. The Rapporteur takes note of this suggestion and urges the DGME to facilitate conditions so that persons subject to immigration proceedings can have legal counsel. Judicial Review 209. The Costa Rican legal order only provides for the possibility of judicial review through a contentious-administrative remedy of decisions that harm the interests of foreigners in regards to their immigration status. The administrative contentious recourses are not granted when the person overstayed their visa once it expired, or after the authorization to reside temporarily or permanently in the country expired. In these last cases, as explained before, only the motions for revocation and motion for appeal are available. [212] In other words, judicial review is only available when the interests of foreigners are harmed and they are in regularization proceedings or they are requesting temporary or permanent residence in the country. In all the other cases of deportation or rejection it is not possible to request a judge to review the decision. In fact, there are not even administrative recourses against the rejection. Nonetheless, a person can recur to the writs of habeas corpus and amparo to request that the fundamental rights of a person facing immigration proceedings be protected. The Costa Rican judiciary, particularly the Constitutional Chamber of the Supreme Court of Justice, has issued decisions on writs of habeas corpus and amparo favorable to foreigners deprived of their liberty by the DGME, and who are subject to immigration proceedings. 210. The Rapporteur notes the impact the decisions of the highest court have had on the Executive’s immigration practices and policies. The government officials interviewed indicated that they meet the deadlines imposed by the judicial decisions on writs of habeas corpus. The Rapporteur applauds the fact that the judicial system guarantees an exceptional review of the decisions and measures of the immigration authorities through the remedies mentioned before the constitutional jurisdiction, even though there is no effective judicial remedy for administrative decisions. As the Rapporteurship highlighted in its 2000 annual report, every decision of the immigration authorities, whether judicial or administrative, should be subject to judicial review, whether through remedies before the contentious-administrative jurisdiction, or through a writ of amparo or habeas corpus. Judicial review guarantees the right to an effective judicial remedy, established in Article 25 of the American Convention on Human Rights. [213] Consular Assistance 211. In the case of foreigners who are subject to judicial or administrative proceedings, it is fundamental to guarantee the right to consular assistance as an element of due process guarantees. The Inter-American Court of Human Rights has ruled in detail on the right to consular assistance and on the correlate duty of the State to offer protection to its nationals, as established by the Vienna Convention on Consular Relations. [214] The Rapporteur has emphasized the importance of ensuring foreigners access to consular assistance under the terms of the Vienna Convention. Migrant workers need consular assistance in particular for issuing travel documents. The States should take steps aimed at ensuring effective assistance to its nationals, including the expedite issuance of travel documents, so that is nationals can regularize their immigration status or be deported more quickly. In this regard, the Rapporteurship observes as a positive development the issuance of Memorandun A.JUR.2047-2002-MGC by the Sub-director of the DGME indicating how the Convention should be implemented. 212. The prompt issuance of travel documents by a State to a national who is about to be deported may have a decisive impact while the person remains deprived of liberty. As the Rapporteurship has observed, the Costa Rican authorities normally abide by their duty to facilitate communication between migrant workers who are detained and their respective consulates. This is particularly clear in the case of Nicaragua, with which Costa Rica has established specific agreements. In other cases, however, for which similar agreements are not in place, the procedure is slower and often detainees do not have access to their consular authorities. The DGME explained to the Rapporteur’s team that in proceedings involving the deportation of undocumented persons, the agility of the State of which they are nationals in issuing the corresponding travel documents largely determines the time of deportation. This, in turn, impacts on the time the person affected remains deprived of his or her liberty. In the cases of extra-regional migrant workers, especially Africans, Asians, or East Europeans, contacting the consular staff may be extremely difficult, and, therefore, result in the prolonged detention of the affected person. 213. Consular protection may be the only remedy migrant workers have to protect their rights, in particular the right to due process. Two writs of amparo on the same case resolved by the Constitutional Chamber illustrate the potential of consular assistance. The legal representation that was offered them by the Government of Nicaragua turned out to be fundamental for vacating the deportation orders, even though they had taken effect, and for securing the order to allow the entry and stay of these persons in Costa Rica until their remedies are ruled on. [215] I. Personal liberty 214. This section refers to the way migrants are deprived of their liberty and the conditions in which they are detained. It describes the existing normative framework, refers to case-law and official documents, and includes observations from the interviews and visits by the Rapporteur’s team. The Constitution of Costa Rica establishes limits on the deprivation of liberty, and guarantees the right to personal liberty. The Constitution does not mention the possibility of administrative detention for a violation of the immigration regime. The General Law on Immigration and Alienage establishes as one of the functions of the Special Migration Police “To question and receive statements from persons accused of breaking this law, and to detain them insofar as appropriate for the time strictly necessary.” [216] The Supreme Court of Costa Rica has stated emphatically that “the detention of a foreigner may only take place to carry out his or her expulsion.” It added in the same decision that deprivation of liberty may only occur for a time “reasonably necessary to carry out the measure.” [217] Deprivation of Liberty 215. The Special Migration Police are authorized to carry out immigration control operations in which identity papers should be requested of all persons without distinction based on nationality. Nonetheless, the Rapporteur received complaints and found case-law that indicates that this law is not always enforced. [218] The operations called “task forces” continue, and in the course of these, documents are requested selectively. The Director General of the Public Forces issued Circular No. 48 on August 24, 2001, reminding police personnel of the conditions in which they may request the identification documents from a person and deprive him or her of liberty. [219] The Office of the Ombudsman has indicated that it is important for the authorities to request the identification respectfully, and to allow the person to show them his or her identification documents before depriving him or her of liberty. [220] In those cases in which a person is deprived of liberty while authorities check that their application for residency is pending, authorities should act swiftly and resolve the person’s situation. [221] In November 2001, the Special Migration Police established a record-keeping system of the persons taken to the Fifth Police Station for failure to possess valid immigration documents. Nonetheless, the Office of the Ombudsman found that in some cases persons are deprived of liberty despite having their immigration papers in order. This happens because the authorities question the authenticity of the documentation. [222] 216. Moreover, the Office of the Ombudsman reminded the Ministry of Public Security of the importance of investigating and punishing abuses in the way persons are treated or concerning the grounds for which they are deprived of liberty when the authorities receive complaints. In addition, if it is determined that the police or any other public servant may have committed a criminal offense, the respective criminal investigation should be opened. [223] 217. Migrants who are deprived of liberty may file a writ of habeas corpus, as of result of which the Constitutional Chamber of the Supreme Court of Justice evaluates why a person has been deprived of liberty. If it finds that such deprivation of liberty is illegal or arbitrary, it can order that the person be released. 218. Deprivations of liberty of migrant workers should be for the reasons established by law. The DGME cannot deprive a person of liberty for an excessive time awaiting a request for extradition. The Rapporteur found cases such as that of a foreign man who entered Costa Rica against his will when forced to get off a boat because he had allegedly committed the crime of homicide while navigating in Honduran waters. After having been detained for more than four months, the Court ordered his release, after determining that his situation was uncertain and that his personal liberty had been disproportionately affected. Costa Rica had not initiated criminal or immigration proceedings against him, and Honduras had not concluded the procedures for his extradition. [224] On another occasion, the Court indicated that holding a person under the immigration law for the purpose of having an extradition request drawn up is an abuse of power by the immigration authorities. [225] Conditions of detention 219. As indicated, among the various activities carried out during the two visits to Costa Rica, the Rapporteur’s team investigated the conditions of detention of migrant workers. Both times, as part of this task, the Rapporteur’s team visited the Fifth Police Station, a detention center for migrant workers located in San José. The building, situated in the downtown area of the Costa Rican capital, is an old police station that had several jail cells and which was adapted as a detention center for migrants some years ago. The Fifth Police Station is under the authority of the DGME. 220. The Office of the Ombudsman makes periodic visits to the detention center, considering that it has unlimited access to it. It focused its efforts on providing legal assistance to the persons who so request, sometimes by filing writs such as habeas corpus, other times facilitating communication between detainees and their family members or friends. The staff of the Office of the Ombudsman stated that the reports and suggestions that they have provided to the immigration authorities to improve the conditions of the persons detained at the Fifth Police Station have generally been taken into account. The Rapporteurship team was able to verify this during its visits. [226] 221. The Rapporteur’s team found precarious conditions at the Fifth Police Station, especially in terms of infrastructure. The Office of the Ombudsman reached the same conclusion. [227] The place where the detainees are held consists of an area that is 30 meters long by eight to ten meters wide. A series of cells measuring approximately 3.5 m by 6 m, along with the bathrooms are placed in this area. The rooms are dark and poorly ventilated. [228] A cell may be shared by two people. Some cells are a bit larger and can be used by several persons. Members of NGOs who visit the facility often point out that after round-ups or during the weekends, the center may house as may as 60 or more people, a number that it is clearly not fit to handle. [229] The cells do not have artificial lighting. 222. At the detention center, men and women share the same space. In its first visit, the Rapporteur’s team observed that women and men even shared bathrooms. During the second visit, the team took note that two new bathrooms had been installed, thereby making it possible to separate the men’s and women’s bathrooms. In practical terms, the only separation between detainees of both sexes is that they do not share the same cells. 223. The bathrooms are unsanitary. The showers were not working during the first visit, there were no wash basins, the toilets were broken, and no soap or toilet paper was available to the detainees. [230] During its first visit, the Rapporteur’s team observed that neither showers or toilets had doors or curtains. During the morning of the second visit, some persons were installing the track and plastic curtains for the showers and toilets. The rest of the conditions described persisted, except for the new toilets already mentioned. 224. Likewise, at the Fifth Police Station there is no special place for detainees to eat, nor any area for receiving visitors. During the first visit conducted by the Rapporteur’s team in November 2001, detainees ate at wooden tables that are in poor condition. In June 2002, the Office of the Ombudsman reported that the detainees had to eat in their cells. [231] In the Rapporteur’s July 2002 visit, a white plastic table and four chairs were observed. The persons detained told the Rapporteurship that the table and chairs had been installed the night prior to the visit. 225. The detention center does not have information on the rules of conduct at the facility, or on the rights of the persons detained. On entering the detention center, the persons receive a blanket and a mattress and nothing more. More often than not, those items have deteriorated over time and are dirty. [232] The detainees do not receive anything for personal cleanliness, towels, or a change of clothes. They receive three meals a day. In principle, they have access to the telephone and can receive visitors. [233] There are no educational or recreational programs. According to the detainees with whom we spoke on the day of the second visit, a television was installed the night before; similarly some magazines and table games had been brought the morning of the visit. The immigration authorities operate under the premise that the detainees receive assistance from their families and friends to ensure their access to toiletries and other items. A physician is available to the detainees. In case emergency medical care is needed, the detainees are taken to nearby public health services. 226. While the immigration authorities believe that the average stay of a person detained is two to three days, some of the persons with whom one member of the Rapporteur’s team spoke to indicated that they had been told that their detention would be for five days, even though they are citizens of a neighboring country that commonly expedites the travel documents needed to accelerate their deportation. Nonetheless, as illustrated by the writs of habeas corpus discussed in this report, cases of immigrants have arisen in which they have been held for months at the Fifth Police Station. The situation of the persons not of Nicaraguan origin is quite worrisome because in many cases they do not speak Spanish, nor do they have a support network for legal counsel or for obtaining the articles that the detention center does not provide. 227. During the two visits, the Rapporteur’s team asked the detained persons about their conditions of detention and their immigration proceedings. These persons stated that the treatment they received by the guards was generally good. Personnel in charge emphasized to the Rapporteur’s team during the first visit that the persons detained were dangerous. Guards and persons in charge of the detention center highlighted the detainees’ poor conduct and that the detainees generally destroyed the infrastructure, including the toilets, mattresses, blankets, and other items distributed to them during their stay. 228. The precarious conditions described in the foregoing paragraphs reflect the State’s lack of resources. The detention center’s budget is relatively small and a large share of it is used to feed the persons detained and to maintain clean conditions. Aware of the facility’s many shortcomings, during both visits by the Rapporteurship team, the government authorities expressed their intention of seeking another site for a detention center. Government officials explained that international cooperation has been sought to raise the necessary funds to carry out this project. [234] To date, however, no progress or specific plan can be cited. 229. In northern Costa Rica, in the canton of Los Chiles, province of Alajuela, very near the border with Nicaragua, operates another immigrant detention center. The Rapporteurship team did not have an opportunity to visit that center. Nonetheless, according to several sources with which the Rapporteur and his team met, the conditions of detention at Los Chiles are much worse that those described at the Fifth Police Station. Many persons depicted the conditions at Los Chiles as deplorable. The non-governmental organizations that work in the region as well as the Office of the Ombudsman, however, stated that in recent months the conditions of detention at Los Chiles have improved. 230. In the Government’s reply to this report, it mentions efforts undertaken to improve detention conditions. The national development plan of the current administration included the construction of two new detention facilities. A Permanent Institutional Commission has also been established. This Commission carries out periodic visits to the detention center. Furthermore, the DGME is working on a Handbook of Procedures for the detention center. The Rapporteurship views these initiatives with optimism and will monitor their development. [ Table of Contents | Previous | Next ] [110] Maritza Marin, Allan Monge, and Edith Olivares. 2001. Tejedores de Supervivencia: Redes de Solidaridad de Familias Nicaragüenses en Costa Rica: El caso de La Carpio. San José, Costa Rica. Facultad Latinoamericana de Ciencias Sociales, pp. 27-33. [111] IOM 2001, p. 19. [112] For example, a study by the Ministry of Labor and Social Security (MTSS) indicates that in 1999, 51% of the sugar cane workers were Nicaraguan. MTSS and the DGME. 1999. Diagnóstico de la demanda de fuerza de trabajo en las zafras de naranja y caña de azúcar, regiones Pacífico Seco y Chirotega, San José, p. 3. [113] IOM 2001, pp. 19-30; Fundación Arias 2000, 45. [114] IOM 2001, p. 20. [115] Wiley 1995, p. 429. Committee on the Elimination of Racial Discrimination 2001, para. 382. [116] This figure accounts for approximately 4.5% of the country’s gross domestic product. IOM 2001, p. 28. [117] Committee on the Elimination of Racial Discrimination 2001, para. 363; Fundación Arias 2000, p. 24. [118] IOM 2001, pp. 19-23; Morales, Abelardo and Carlos Castro. 1999. Inmigración Laboral Nicaragüense en Costa Rica. San José. FLACSO, pp. 11-49. [119] Nicaraguans are involved mostly in heavy work; only a small percentage of Nicaraguan migrant workers have the skills needed to do finishing work. [120] Presentation by the Vice-Minister of Interior to the IACHR delegation on migration based on the following study: FLACSO. 2001. Migraciones Nicaragüenses en Costa Rica: Tendencias y Situación. San José. [121] Fundación Arias 2000, pp. 19-25; IOM 2001, pp. 19-23. [122] Committee on the Elimination of Racial Discrimination 2001, para. 369. [123] CCSS 1999, Anuario Estadístico [Statistical Yearbook], Bureau for Actuarial Matters and Economic Planning, Statistics Department, San José, pp. 2-4. [124] Ministry of Health 1999. Memoria Anual, cited in IOM 2001, pp. 35-36. [125] IOM 2001, p. 38. [126] Costa Rica: Octavo Informe del Estado de la Nación. 2001, p. 339. [127] IACHR 2000. Annual Report. Second Progress Report of the Special Rapporteurship on Migrant Workers and their Families in the Hemisphere. <http://www.cidh.org/annualrep/2000eng/chap.6.htm> [128] United Nations. Intergovernmental Working Group of Experts on the Human Rights of Migrants, Report E/CN.4/AC.46/1998/5, para. 28; United Nations, Report by the Special Rapporteur on Human Rights of Migrants, Report E/CN.4/2000/82, para. 13. [129] Adopted by the United Nations General Assembly, Resolution 2106 (XX) of the General Assembly, 1965. It entered into force on January 4, 1969. [130] United Nations. 2002. Concluding observations of the Committee on the Elimination of Racial Discrimination: Costa Rica CERD/C/60/CO/3, para. 15. [131] IOM 2001, p. 41. [132] Fundación Arias 2000, pp. 23, 49-50. [133] See conclusions in Castro Valverde, Carlos. 2000. Inserción laboral y remesas de los inmigrantes nicaragüenses en Costa Rica, Parte Dos. FLACSO, Costa Rica (mimeo.). [134] Wiley 1995, pp. 425-426. [135] United Nations. 2002. Concluding observations of the Committee on the Elimination of Racial Discrimination: Costa Rica CERD/C/60/CO/3, paras. 233-234. [136] Flacso Survey in Urban Communities in San Jose (2001) presented by the Vice-Minister of Government to the Rapporteurship. [137] Defensoría de los Habitantes DHR No. 10010-2001. [138] Defensoría de los Habitantes DHR No. 08721-2001. [139] Defensoría de los Habitantes DHR No. 08435-2001. [140] United Nations. 2002. Concluding observations of the Committee on the Elimination of Racial Discrimination: Costa Rica, CERD/C/60/co/3, paras. 389-390. [141] Comisión Interinstitucional de Alto Nivel Sobre Migraciones Internacionales. 2002. Lineamientos para la Formulación de una Política Migratoria: Bases para la Acción (May), San José, p. 4 (mimeo.). [142] Alvarenga, Patricia. 1997. Conflictiva Convivencia: Los Nicaragüenses en Costa Rica. Cuadernos de Ciencias Sociales No. 101. FLACSO, Costa Rica. [143] IDESPO. 1999. La Población Costarricense ante la Crisis, La Migración y las Instituciones Públicas (July) <http://www.nacion.com.cr/ln_ee/ESPECIALES/una/una1.html>. [144] CID/Gallup. Costa Rica opinion polls Nos. 79 and 80, July 13 and November 3, 1999. [145] Funkhouser, Edward, Juan Pablo Pérez Sáinz, and Carlos Sojo. 2002. Social Exclusion of Nicaraguans in Urban Metropolitan Area of San José, Research Network Working Paper Number 347. [146] See Lara E. Putnam, La Población Afrocostarricense en el Censo 2000, Centro de Investigaciones Históricas de América Central (CIHAC), Universidad de Costa Rica, at symposium Costa Rica a la Luz del Censo del 2000, August 5 and 6, 2002. [147] See also Castro Valverde. 2000. [148] IOM 2001, pp. 22, 29-32. [149] Fundación Arias 2000, pp. 20-24. [150] Castro Valverde. 2000. [151] Wiley 1995, pp. 428-429. [152] The 2000 household survey found that 57.2% of Nicaraguan immigrants were affiliated to the system. [153] Constitutional Chamber of the Supreme Court of Justice, Decision 8857-98, December 15, 1998. [154] However, only Costa Rican citizens can benefit from the scholarships given by the Ministry of Public Education. Fundación Arias 2000, p. 16. [155] Fundación Arias 2000, p. 28. [156] See Constitutional Chamber, vote 2517-96, of May 31, 1996. [157] The complete listing of the functions of the DGME can be seen at Article 7 of the General Law on Migration and Alienage. [158] The complete listing of the functions of the National Migration Council can be seen at Article 9 of the General Law on Migration and Alienage. [159] See Defensoría de los Habitantes, Informe de Labores 2001-2002 (CD ROM). [160] For more information on the Permanent Forum on the Migrant Population, including the list of participating organizations, see: <http://www.iom.int/CostaRica/webdocs/DOC.FORO.PDF>. [161] See Articles 11 to 15 of the General Law on Migration and Alienage, Article 7 of Regulation No. 19010-G and Regulation Nº 24277-G. [162] See Article 16 of the General Law on Migration and Alienage, and Articles 8 and 9 of Regulation No. 19010-G. [163] See Article 35 of the General Law on Migration and Alienage. [164] See Articles 35 and 36 of the General Law on Migration and Alienage, Articles 45 to 53 and 71 to 74 of Regulation No. 19010-G, and Regulation Nº 29878-G. [165] See Article 37 of the General Law on Migration and Alienage, and Articles 54 to 63 of Regulation Nº 19010-G. [166] See Articles 37 to 41 of the General Law on Migration and Alienage, and Articles 64 to 68 of Regulation No. 19010-G. [167] This was the third such measure adopted in Costa Rica in the 1990s; the two earlier ones were issued during the Calderón Fournier administration (1990-1994). [168] Flacso/IOM. 1999. Amnistía Migratoria en Costa Rica. San José: FLACSO, pp. 17, 21. [169] IOM 2001, p. 48 [170] Flacso/IOM. 1999. Amnistía Migratoria en Costa Rica. San José: FLACSO. [171] See Articles 16(1), 39, and 41 of the General Law on Migration and Alienage, and Decree No. 30741-RE-G. [172] See Decree No. 29967-G of November 27, 2001. [173] See Articles 60 to 62 of the General Law on Migration and Alienage, Regulation No. 26334-RE-G, and Regulation 29967-G. [174] See Articles 44 to 48, 83, 102, and 115 to 117, of the General Law on Migration and Alienage. [175] See Articles 49 and 50 of the General Law on Migration and Alienage. [176] See Articles 118 and 119 of the General Law on Migration and Alienage, and Articles 77 to 86 of Regulation No. 19010-G. [177] The defenses against expulsion can only be: being a Costa Rican citizen; the motives invoked for expulsion are not in the law; the charges alleged are false. [178] See Articles 120 to 130 of the General Law on Migration and Alienage. [179] See Article 51 of the General Law on Migration and Alienage. [180] See Articles 17, 25, and 57 to 69 of the General Law on Migration and Alienage. [181] See Article 68 of the General Law on Migration and Alienage. [182] See Articles 68 to 70 and 74 of the General Law on Migration and Alienage. [183] See Articles 86 to 89 of the General Law on Migration and Alienage. [184] See Article 118 of the General Law on Migration and Alienage. [185] See Articles 107 to 114 of the General Law on Migration and Alienage. [186] The Rapporteurship distinguishes three groups of persons involved in transporting people from one State to another. The three categories are: Guidance: This refers to the action of individuals who only help people cross borders, for transport them by air, sea, or land to their points of destination; Smuggling: This refers to the actions of those who have developed networks capable of providing a complete service for migrant workers and their families and which include, among others, transportation, documentation, guide, protection, and contact with employers in the receiving countries. Smuggling, like guidance, entails a mutually agreed upon commercial transaction in which, more than a victim, the migrant worker is a customer. The business is conducted by various types of organizations with various levels of sophistication, from porters to specialized gangs, some of which are involved in illegal activity. Trafficking of persons: This implies elements of violence, coercion, and deceit for the purpose of exploiting persons (mostly women and minors) to obtain a monetary benefit. Trafficking has many of the elements of smuggling, but is also accompanied by the trafficking of persons. In other words, the migrant worker is under the control of the trafficker, who forces him or her to engage in an economic activity as consideration for the service of having been taken to the country of destination. Often the victims of trafficking are subject to terrible conditions, in some cases even semi-slavery, as they are coercively not allowed to leave the place of business, and are victimized physically and sexually. This activity is carried out by criminal organizations engaged in illicit dealings, in particular sexual exploitation of women and minors. In this case, the business almost always involves coercion and violence, and often collusion by the authorities in the receiving country. See Chapter V. Third Progress Report of the Rapporteurship on Migrant Workers and Their Families., IACHR. <http://www.cidh.org/annualrep/2000eng/chap.6.htm>. The Rapporteurship recognizes that these categories do not coincide exactly with those created by the Convention on Organized Transnational Crime and its two additional protocols. [187] International Human Rights Law Institute, De Paul University College of Law. 2002. In Modern Bondage: Sex Trafficking in the Americas, Chicago: De Paul University, p. 49. [188] See Article 48 of the Constitution of Costa Rica. [189] See Constitutional Chamber of the Supreme Court of Justice, Resolution 6819-95, December 13, 1995. [190] See Constitutional Chamber of the Supreme Court of Justice, Resolution 3768-96, July 23, 1996; Constitutional Chamber of the Supreme Court of Justice, Resolution 6162-96, November 13, 1996; Constitutional Chamber of the Supreme Court of Justice, Resolution 2000-07706, August 29, 2000; Constitutional Chamber of the Supreme Court of Justice, Resolution 2000-11085, February 15, 2002. [191] U.S. Committee for Refugees, 2002. [192] With respect to the application of the principle of non-return or non-refoulement found in the Convention Against Torture and other international human rights instruments, see Weissbrodt, David and Isabel Hortreiter, 1999, “The Principle of Non-Refoulement: Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in Comparison with the Non-Refoulement provisions of Other International Human Rights Treaties.” Buffalo Human Rights Law Review 5: 1-72. [193] See Constitutional Chamber of the Supreme Court of Justice, Resolution 2000-07513, August 25, 2000. [194] See Articles 37 and 41 of the General Law on Migration and Alienage, and Articles 64 to 68 of Regulation No. 19010-G. [195] Article 2(1): “The term ‘migrant’ worker refers to a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national.” [196] See Defensoría de los Habitantes, DHR No. 08435-2001-DHR. [197] See Constitutional Chamber of the Supreme Court of Costa Rica, Vote 2754-93, June 15, 1993. [198] See section describing the immigration law in Costa Rica, in this report. [199] See Constitutional Chamber of the Supreme Court of Justice, Resolution 4825-99, of June 22, 1999. [200] See Constitutional Chamber of the Supreme Court of Justice, Resolution 2001-04519, of May 25, 2001. [201] See Constitutional Chamber of the Supreme Court of Justice, Resolution 5791-98, August 11, 1998. [202] See Constitutional Chamber of the Supreme Court of Justice, Resolution 6078-99, August 4, 1999. [203] See Constitutional Chamber of the Supreme Court of Justice, Resolution 4825-99, June 22, 1999, and Constitutional Chamber of the Supreme Court of Justice, Resolution 6078-99, August 4, 1999. In its reply to this report, the Costa Rican Government indicated that the Supreme Court corrected the La Carpio incident and it has not repeated after that. [204] See Constitutional Chamber of the Supreme Court of Justice, Vote 4999-97, August 27, 1997; Constitutional Chamber of the Supreme Court of Justice, Resolution 2001-08335, August 17, 2001. [205] As determined by the Constitutional Chamber of the Supreme Court of Justice, Resolution 04825-99, June 22, 1999. [206] See Constitutional Chamber of the Supreme Court of Justice, Resolution 6078-99, August 4, 1999. [207] Constitutional Chamber of the Supreme Court of Justice, Resolution 7741-99, October 7, 1999. [208] See Constitutional Chamber of the Supreme Court of Justice, Resolution 2000-02509, March 22, 2000. [209] As indicated by the Constitutional Chamber of the Supreme Court of Justice, Resolution 1163-97, February 25, 1997. In its reply to the report, the Costa Rican government submitted examples that indicate that this decision is complied with. [210] See Constitutional Chamber of the Supreme Court of Justice, Resolution 2000-05643, June 12, 2002. [211] FLACSO and IOM. Amnistía Migratoria en Costa Rica. 1999. Análisis de los alcances sociales y del impacto del Régimen de Excepción Migratoria para los Inmigrantes de origen centroamericano en Costa Rica. San José. [212] See Article 113 of the General Law on Migration and Alienage. [213] Report of the Special Rapporteurship on Migrant Workers 2000, para. 98E. [214] Inter-American Court of Human Rights, Advisory Opinion OC-16/99, October 1, 1999, paras. 79-87. [215] Constitutional Chamber of the Supreme Court of Justice, Resolution 7741-99, October 7, 1999. [216] See Article 12(6) of the General Law on Migration and Alienage. [217] See Constitutional Chamber of the Supreme Court of Justice, Vote No. 2754-93, June 15, 1993, para. IV. [218] See Defensoría de los Habitantes DHR Nº 10010-2001-DHR. [219] See Defensoría de los Habitantes DHR Nº 08435-2001-DHR. [220] See Defensoría de los Habitantes DHR Nº 03397-2001-DHR. [221] See Constitutional Chamber of the Supreme Court of Justice, Resolution 2002-02600, March 12, 2002. [222] Defensoría de los Habitantes, Acta de Inspección Centro de Detención Quinta Comisaría, Seguimiento de Expediente No. 08765-22-00-10. [223] See Defensoría de los Habitantes DHR No. 03397-2001-DHR, DHR No. 10010-2001-DHR, and DHR No. 08435-2001-DHR. [224] See Constitutional Chamber of the Supreme Court of Justice, Resolution 2000-09390, October 24, 2000, which denied the first writ of habeas corpus filed by the person in question. The Court was of the view that his exit from the country was being processed, such that his detention was not unlawful. Four months later, however, the Court granted the writ on realizing that he was deprived of liberty by the DGME even though he had not violated any immigration law. See Constitutional Court of the Supreme Court of Justice, Resolution 2001-00083, January 5, 2001. [225] See Constitutional Chamber of the Supreme Court of Justice, Resolution 2000-09649, October 31, 2000. [226] See official note from the Ministry of Public Security 1670-2001-DM, of August 17, 2001, in which it answers a recommendation by the Office of the Ombudsman, in DHR No. 07366-2001-DHR. [227] See Defensoría de los Habitantes DHR No. 07366-2001-DHR. [228] See Recommendation to the Minister of Public Security and Interior to the Director General of Immigration and Alienage in Defensoría de los Habitantes DHR No. 05396-2001-DHR. [229] In an inspection performed by the Office of the Ombudsman, it found 19 persons in one cell, on June 19, 2002, at 8:40 a.m., in Defensoría de los Habitantes, Acta de Inspección Centro de Detención Quinta Comisaría, Seguimiento de Expediente Nº 08765-22-00-10. [230] Accordingly, the Ombudsman decided to recommend to the minister of health that he inspect the Fifth Police Station so as to issue a report on the habitability of a building that houses both persons deprived of liberty and members of the police, see Defensoría de los Habitantes DHR Nº 05396-2001-DHR. [231] Defensoría de los Habitantes, Acta de Inspección Centro de Detención Quinta Comisaría, Seguimiento de Expediente Nº 08765-22-10-00. [232] Defensoría de los Habitantes, Acta de Inspección Centro de Detención Quinta Comisaría, Seguimiento de Expediente Nº 08765-22-10-00. [233] See Defensoría de los Habitantes, in DHR Nº 07366-2001-DHR. [234] This was also indicated by the Office of the Ombudsman in response to an investigation triggered by a complaint on conditions of detention. See Defensoría de los Habitantes DHR Nº 07366-2001-DHR. |
