REPORT Nº 95/08
PETITION 1351-05
ADMISSIBILITY
Nadege Dorzema ET AL, or “guayabin Massacre”
DOMINICAN REPUBLIC
December 22, 2008
I.
SUMMARY
1. On
November 28, 2005, the Inter-American Commission on Human Rights
(hereinafter the “Inter-American Commission, “the Commission,” or “IACHR”)
received a petition lodged by the Support Group for Repatriates and
Refugees [Grupo de Apoyo a los Repatriados y Refugiados],
represented by Mr. Cherubin Tragelus, and by the Dominican-Haitian
Cultural Center [Centro Cultural Domínico Haitiano], represented
by Mr. Antonio Pol Emil (hereinafter “the petitioners”),
alleging the international responsibility of the Dominican Republic
(hereinafter “Dominican Republic” or “the State”) for the presumed
arbitrary deprivation of life of Jacqueline Maxime, Fritz Alce (Gemilord),
Roselene Theremeus, Ilfaudia Dorzema, Máximo Rubén de Jesús Espinal,
Pardis Fortilus, and Nadege Dorzema, the presumed failure to ensure the
humane treatment of Joseph Pierre, Selafoi Pierre, Silvie Thermeus,
Roland Israel, Rose Marie Dol, Josué Maxime, Michel Florantin,
Celicia Petithomme/Estilien, Sonide Nora, Alphonse Oremis, Renaud Timat,
and Honorio Winique, (hereinafter the “alleged victims”), for the
presumed deprivation of freedom of some of the alleged victims, and for
failure to respect the right to a fair trial and the right to judicial
protection, which would have allowed for reparations for the damages
incurred.
2.
The petitioners
alleged that the State is responsible for violating the rights
established in Articles 4 (right to life), 5 (right to humane
treatment), 7 (right to personal liberty), 8 (right to fair trial), 24
(right to equal protection), and 25 (right to judicial Proteccion), in
relation with the obligation to respect rights
established
in Article 1.1 of
the American Convention on Human Rights (hereinafter the “Convention” or
the “American Convention”). With regard to the admissibility
requirements, the petitioners maintained that the requirement of prior
exhaustion of domestic remedies, stipulated in Article 46.1.a of the
Convention, is not applicable because the alleged victims were prevented
from exhausting adequate remedies under domestic law.
3.
For its part, the
State maintained that the petitioners’ complaints were inadmissible, due
to failure to comply with the requirement of prior exhaustion of
domestic remedies stipulated in Article 46.1.a of the American
Convention, since all of the remedies provided under Dominican law to
the injured parties in this case were not exhausted.
4.
Without prejudice to the merits of the case,
and after examining the available information and verifying compliance
with the admissibility requirements set forth in Articles 46 and 47 of
the American Convention, and in Articles 30 and 37 of the Rules of
Procedure, the IACHR concludes that the petition is admissible insofar
as the alleged violation of the rights established in Articles 4, 5, 7,
8, 24, and 25 of the American Convention are concerned, considered in
relation to the general obligation established in Article 1.1 of that
international instrument. Moreover, in application of the principle of
iura novit curia, the Commission will examine, in the merits
stage, whether there is a possible violation of Article 2 of the
American Convention. The Commission has decided to notify the parties
of this decision, to publish it, and to include it in its Annual Report
to the General Assembly of the Organization of American States.
II.
PROCEDURES OF THE COMMISSION
5.
On November 28, 2005, the Commission
received the petition dated November 26, 2005, and assigned it number
1351-05. On March 26, 2007, the pertinent parts were transmitted to the
State, with the request that it submit its response within two months,
in accordance with the provisions of Article 30.2 of the Rules of
Procedure of the Inter-American Commission on Human Rights (hereinafter
the “Rules of Procedure”). The State’s response was received on July
13, 2007.
6.
The IACHR received additional information
from the petitioners on the following dates: June 1, August 29, and
October 5, 2007, and April 2, 2008. These communications were duly
forwarded to the State.
7.
Furthermore, the IACHR received observations
from the State on July 13, 2007, January 22, 2008, and September 25,
2008. These communications were duly forwarded to the petitioners.
III.
POSITION OF THE PARTIES
A.
The
petitioners
8.
The petitioners
state that Haiti and the Dominican Republic experience constant
migration of Haitian workers to the Dominican Republic, due to the
difficult living conditions prevalent in Haiti. They add that this
migration frequently takes place under extreme conditions, marked by a
lack of legal parameters and discriminatory attitudes. More
specifically, they contend that what happened to the alleged victims
were not isolated incidents, but that they fall within an overall
pattern of abuse and discrimination suffered by Haitian citizens at the
hands of Dominican state agents, especially along the border between the
two countries.
9.
In this context,
the petitioners allege that a group of twenty-eighty Haitians, most of
whom were from the Pilate area in northwestern Haiti, had paid a person
to transport them to the city of Santiago de los Caballeros in the
Dominican Republic, for the purpose of working, selling goods, and
studying. They allege that on June 17, 2000, they crossed the border
between Ouanaminthe (Haiti) and Dajabón (Dominican Republic) on the day
of the bi-national market, and spent the night near Dajabón. In the
early morning, they boarded a truck that took them to Santiago de los
Caballeros.
10.
The petitioners allege that at approximately 3:00
a.m. on June 18, 2000, the truck arrived at the checkpoint located in
the town of “Botoncillo,” municipality of Guayubin, Province of
Montecristi, in the Dominican Republic. There the truck was intercepted
by four members of the Border Intelligence Operations Department
belonging to the Armed Forces (hereinafter the “DOIF”),
who were patrolling and inspecting vehicles. They add that the members
of the DOIF gave a signal to stop the truck, but the driver of the
vehicle was not aware of it and had continued on. They say that as a
result, the soldiers began pursuing the truck for 17 kilometers, opening
fire indiscriminately on it with official M16 rifles. They say that
according to statements by witnesses, the soldiers who were pursuing the
truck could see that there were people inside of it. They add that
later on, the vehicle overturned on a curve some five kilometers from
the town of “El Copey,” as a result of the death of the driver from
bullet wounds. According to the petitioners, the Dominican military
forces continued to shoot at the alleged victims, who, terrified, were
trying to run away from the place. Thus they argue that this amounted
to an extrajudicial execution, at least in the cases of Nadege Dorzema
and Pardis Fortilus.
11.
The petitioners say
that as a result of these acts, and the disproportionate response of the
State agents, Jacqueline Maxime, Fritz Alce (Gemilord), Roselene
Theremeus, Ilfaudia Dorzema, Máximo Rubén de Jesús Espinal, Pardis
Fortilus and Nadege Dorzema lost their lives, and Joseph Pierre, Selafoi
Pierre, Silvie Thermeus, Roland Israel, Rose Marie Dol, Josué Maxime,
Michel Florantin, Celicia Petithomme/Estilien, Sonide Nora, Alphonse
Oremis, Renaud Timat, and Honorio Winique were wounded, five seriously
and others with permanent injuries.
12.
The petitioners
report that after this event, some of the alleged victims of the
so-called “Guayubin Massacre” were transferred to detention centers in
the cities of Montecristi and Dajabón, where they were held arbitrarily,
without being informed of the reasons for their detention. In this
regard, they say that the State agents who arrested and detained them
did not request their identification, and that the courts did not
examine their legality. They further report that after being detained,
they were expelled from the Dominican Republic, without any attempt ever
made to determine their legal status by judicial or administrative
means.
13.
The petitioners allege that on June 19,
2000, agents from the Ministry of Defense opened an investigation into
the events that occurred, and on June 24, 2000, an official indictment
was issued by the Prosecutor of the Joint Armed Forces and National
Police Court Martial of First Instance [Consejo de Guerra de Primera
Instancia Mixto de las Fuerzas Armadas y de la Policía Nacional],
against the soldiers involved in the acts, who were charged with
voluntary homicide. They further report that the court hearing on the
preliminary proceedings [Juzgado de Instrucción] of the Joint
Armed Forces and National Police Court Martial of First Instance
concluded that there was serious, critical, specific, and consistent
evidence pointing to the criminal liability of the accused soldiers, and
the need for them to be judged pursuant to the law. As a result of
these considerations, it recommended that the accused be tried by the
Joint Armed Forces and National Police Court Martial of the First
Instance, as allegedly responsible for violating Articles 295, 304, and
309 of the Dominican Criminal Code. They assert that despite the fact
that an arrest warrant for immediate execution was issued by the public
prosecutor [Magistrado Procurador Fiscal] against the
persons charged, it was never carried out.
14.
The petitioners state that the military
proceedings were officially initiated, but that the alleged victims and
their families were unable to attend as civilian parties, because
Article 8 of the Code of Justice of the Armed Forces does not allow it.
15.
They explain that as a result of the lack of
transparency of the military proceedings and the fact that it was
impossible for them to be civilian parties to the proceedings, in 2002
Thelusma Fortilus, Rosemond Dorzema, Nerve Fortilus, Alce Gyfranord,
Alce Ruteau, Mirat Dorzema, and Onora Thereneus, family members of the
alleged victims, filed a complaint with the Court for Preliminary
Proceedings of the Judicial District of Montecristi. They report that
the soldiers involved were summoned on four different occasions by the
judge presiding over the preliminary proceedings, but they never
appeared. According to the petitioners, when the soldiers failed to
appear, the judge decided to proceed with the interrogation of the
family members of the victims. However, before the interrogation was
initiated, that same judge for the case ordered the suspension of said
proceedings, based on the argument that the case was pending in a
Military Court.
16.
The petitioners indicate that this
situation generated a conflict of jurisdiction. Consequently, on March
12, 2003, the family members of the alleged victims petitioned the
Supreme Court of Justice of the Dominican Republic to settle the
conflict of jurisdiction, requesting that the Court refuse jurisdiction
to the Military Court in favor of the regular courts. The petitioners
report that at the time the petition was lodged with the IACHR, the
highest court had not resolved the conflict of jurisdiction, and that
this constituted an unwarranted delay in rendering a judgment under
domestic remedies. On this point, they maintain that they were
informed, by way of the observations of the State submitted to the IACHR
on July 13, 2007, that the Supreme Court of Justice had resolved the
conflict of jurisdiction in favor of the military courts on January 3,
2005.
17.
The petitioners further state that the
outcome of the proceedings in the Military Courts was the judgment of
March 5, 2004, issued by the Joint Armed Forces and National Police
Court Martial of First Instance, in which three soldiers were found
guilty, two were convicted to 5 years’ imprisonment and one was
suspended from duty for 30 days, while the fourth soldier was
acquitted. After that verdict was handed down, the two soldiers
convicted and sentenced to prison appealed, and on May 27, 2005, the
Appellate Joint Armed Forces and National Police Court Martial amended
the judgment of the court of first instance and ordered the acquittal of
the convicted soldiers, in accordance with Articles 321 and 327 of the
Dominican Criminal Code.
18.
With regard to the investigation into and
punishment of the acts described in the petition, the petitioners state
that the State gave preference to the military jurisdiction over the
civilian one. They argue that the State is responsible for violation of
the rights established in Articles
4, 5,
7,
8, 24, and
25 of the American Convention, considered in relation to Article 1.1 of
that international instrument. Insofar as Article 24 is concerned, they
contend that the situation in question is not exceptional in the
Dominican Republic, but that abuses of this type are frequent. They
further state that there was discriminatory treatment of the alleged
victims both on June 18, 2000 and during the judicial proceedings, which
were inadequate and ineffective.
19.
As for the requirements for admissibility of
this complaint, the petitioners allege that the rule contained in
Article 46.1 of the American Convention should not apply, since the
victims were prevented from exhausting adequate remedies under the
domestic legal system.
B.
The State
20.
The State
alleges that this case refers to a truck on the stretch of highway
between Botoncillo and Copey, in the jurisdiction of Montecristi that
ran through a checkpoint and then had an accident. It adds that in view
of the fact that it was 3:00 a.m. on June 18, 2000, the DOIF personnel,
together with members of the National Army from the Botoncillo military
post, ordered a Daihatsu truck, covered with canvas, to halt, as they
had information that it was attempting to bring in drugs.
21.
The State
further reports that the truck charged past the soldiers who were at the
military station, as a result of which they fired a shot in the air.
When the truck failed to stop, the members of the patrol shot at the
tires of the vehicle, which caused the vehicle to have an accident.
They then determined that under the canvas were approximately thirty
Haitian nationals, seven of whom died and thirteen of whom were injured
as a result. The State Secretariat of the Armed Forces therefore
ordered the appropriate investigation to be conducted by a Joint Board
of General officials, in order No. 15012 dated Jun 19, 2000.
22.
The State
indicates that as a result of the accident in which the truck
overturned, causing the death of six Haitian nationals and one
Dominican, the Joint Board of General Officers conducted an
investigation and recommended that the four soldiers be tried by the
Joint Armed Forces and National Police Court Martial of First Instance,
as allegedly responsible for violating Articles 295, 304, and 309 of the
Criminal Code, in accordance with the provisions of Article 3 of the
Code of Justice of the Armed Forces (Law No. 3483 of February 13, 1953),
which states: “Violations committed by soldiers in the exercise of
their duties also come under the jurisdiction of military courts, no
matter where they were committed. If the violation was committed in
another country, the proceeding shall take place after the accused is
returned to the Republic.”
23.
The State
further indicates that military courts only rule on criminal action, and
that this case involves an action in the process of settlement which is
governed by the procedural rules prior to September 27, 2004, the date
on which the Dominican Penal Code of Procedure (Law 76-2002) entered
into force; therefore, it had to be tried under the former rules of
procedure established in the Code of Criminal Procedure.
24.
The State
adds that the Supreme Court of Justice denied the motion to appoint a
civilian court judge, filed on March 12, 2003 by Telusma Fortilus,
Rosemond Dorsala et al., pursuant to Resolution No. 25-2005,
dated January 3, 2005. In its decision, the Supreme Court pointed out
that “whenever two or more courts of equal rank are seized with the same
case, and the petitioner has brought the relevant evidence, the court or
courts subsequently petitioned must remove themselves to give preference
to the court that was originally responsible for hearing the matter. In
the event that none of the parties so requests, the judges may take the
initiative and remove themselves from the case, leaving solely and
exclusively the court originally empowered.”
25.
According to
the State, this line of reasoning is based on the following precepts: a)
Article 382 of the 1884 Code of Criminal Procedure, which establishes
that: “In criminal or correctional matters, judges may be designated by
the Supreme Court of Justice, and in merely police matters, by courts of
first instance, provided the judges of the preliminary hearing and the
correctional or criminal courts, as well as police courts that do not
come under the authority of either, are considering the same offense or
related offenses or the same violation;” and, b) Article 28 of Law No.
834 of July 15, 1978, which establishes that: “If the same case is
pending in two courts of the same rank that are equally competent to
hear it, the second court to be seized of it must cede to the other if
one of the parties so requests. Failing this, it may do so on its own
initiative.”
26.
The State
alleges that since this case involves a criminal offense provided for
and punished in Dominican legislation, the Joint Armed Forces and
National Police Court Martial of First Instance assumed jurisdiction and
the national armed forces investigated the unfortunate incident.
27.
Similarly,
the State contends that it is wrong to assert that the military courts
could not hear the case, since Dominican law grants such powers to
different legal systems.
28.
Moreover,
the State advised that the Dominican Republic recognizes and applies the
rules of general and American international law to the extent that its
government has adopted it, notwithstanding the fact that the sovereignty
of the Dominican nation, as a free and independent state, is
inviolable. It adds that in the Dominican Republic, police and security
laws are binding on all inhabitants of the territory, and that the State
recognizes that it is its purpose to provide effective protection for
all human beings and to maintain an environment in which they can
continually improve themselves, in a context of individual freedom and
social justice, consistent with public order, general well-being, and
the rights of all.
29.
The State
further maintains that Article 8, followed by Articles 70 and 92 of the
Code of Military Justice (Law 3483 of February 13, 1953), establishes
the procedure for compensation or review of a case that has been heard
and judged by military courts, in a decision that has acquired the
authority of res judicata, but that the parties have not availed
themselves of that remedy to date. By virtue of the foregoing, it
requests that the petition be declared inadmissible, since domestic
remedies have not been exhausted.
IV. ANALYSIS
OF ADMISSIBILITY
A. Jurisdiction
of the Commission: ratione personae, ratione loci, ratione temporis
y ratione materiae
30.
The petitioners are
authorized by Article 44 of the American Convention to lodge petitions
on behalf of alleged victims in respect of whom the State has pledged to
respect and guarantee the rights established in the American
Convention. The Dominican Republic has been a State Party to the
American Convention since April 19, 1978, the date on which it deposited
its instrument of ratification. Thus the Commission has personal
jurisdiction to examine the petition.
31.
The Commission also
has jurisdiction ratione loci to take cognizance of the petition,
since it alleges violations of the rights protected in the American
Convention that took place within the jurisdiction of the State.
32.
The Commission has
temporal jurisdiction to consider the complaint, since the obligation to
respect and guarantee the rights protected in the American Convention
was already in effect in the State on the date that the acts alleged in
the petition occurred.
33.
Finally, the
Commission has subject matter jurisdiction to examine this case, because
the petition refers to possible violations of human rights protected by
the American Convention.
B.
Other requirements
for admissibility of the petition
1.
Exhaustion of domestic remedies
34.
Article 46.1 of the American Convention
states that, in order for a petition lodged with the Inter-American
Commission pursuant to Article 44 of the Convention to be admissible,
remedies under domestic law must have been pursued and exhausted in
accordance with generally recognized principles of international law.
The purpose of this requirement is to allow the national authorities to
look into an alleged violation of a protected right and, if appropriate,
to settle the case before it is brought before an international body.
35.
The State
alleges that the present case involves a criminal offense that is
provided for and punished under Dominican legislation. Thus, since the
Joint Armed Forces and National Police Court Martial of First Instance
had jurisdiction over the case for the purposes of the corresponding
law, the National Armed Forces complied with the duty to clarify this
highly regrettable incident which resulted in the death of six Haitian
nationals and one Dominican. Moreover, it points out that the petition
does not meet the requirement on prior exhaustion of remedies under
domestic law stipulated in Article 46.1.a of the American Convention, in
view of the fact that all of the remedies provided under Dominican law
and available to the injured parties to resolve the case were not
exhausted. Articles 8, 70, and 92 of the 1953 Code of Military Justice
establish the procedure for compensation or review of a case heard and
judged in military courts, in a judgment that has acquired the authority
of res judicata, yet the parties have not availed themselves of
this remedy to date.
36.
The
petitioners, on the other hand, allege that the military courts opened
an official investigation and prevented the alleged victims and their
next of kin from participating in it. Moreover, they point out that even
when the family members of the victims brought a legal action in the
regular courts, the proceedings were suspended because of the existence
of a proceeding in a military court. Furthermore, they point out that
the family members of the victims requested the Supreme Court of Justice
to establish the jurisdiction of the regular courts, a petition that was
denied on January 3, 2005. In this regard, they explain that they
learned of this decision by the highest court on their petition
regarding jurisdiction in a communication submitted by the State to the
IACHR on July 13, 2007, which, in their view, is a clear instance of
irregularity and inefficiency in the judicial proceeding. As a result,
the petitioners argue that the exception to prior exhaustion of domestic
remedies stipulated in Article 46.2 of the American Convention applies.
37.
In the case
in point, it is important to clarify the domestic remedies that must be
exhausted in accordance with the letter and the spirit of Article 46.1.a
of the American Convention. In order for a petition to be found
admissible, this provision requires that “... the remedies under
domestic law have been pursued and exhausted in accordance with the
generally recognized principles of international law.” The
Inter-American Court has interpreted this provision to mean that only
adequate remedies to resolve the violations allegedly committed must
be exhausted. The term “adequate remedies” means that:
the function of
these remedies within the domestic legal system must be appropriate to
protect the infringed legal situation. In all domestic legal systems,
there are multiple remedies, but not all are applicable in all
circumstances. If, in a specific case, the remedy is not adequate, it
is obvious that it is not required to be exhausted. This is consistent
with the principle that the rule must lead to an effect and cannot be
interpreted in the sense that it should not produce any effect or that
its effect is clearly absurd or unreasonable.
The case law of the
Commission recognizes that whenever an indictable crime is committed,
the State has the obligation to promote and advance the criminal
proceedings up to the final outcome,
and that, in those cases, this is the appropriate way to clarify the
facts, judge the perpetrators, and establish the corresponding penal
sanctions, in addition to providing for other types of reparations. The
Commission considers that the acts alleged by the petitioners in the
present case involved the alleged violation of a fundamental,
irrevocable right, the right to life, which appears in domestic
legislation as an indictable crime, and that therefore it is this
criminal proceeding, advanced by the State itself, that must be
considered for the purposes of determining the admissibility of the
petition.
38.
From the
information provided by the parties, it appears that the events of June
18, 2000 were investigated under the military jurisdiction. On March 5,
2004, the Joint Armed Forces and National Police Court Martial of First
Instance issued a judgment of conviction in the case of three of the
four accused State agents. On May 27, 2005, the Appellate Joint Armed
Forces and National Police Court Martial handed down a verdict of
acquittal in the case of the two State agents who appealed their
conviction.
39.
Moreover, it
appears that in November 2002, the families of the alleged victims filed
a complaint in a civilian court for preliminary criminal proceedings in
the Judicial District of Montecristi, to open an investigation into the
events that occurred on June 18, 2000. However, the court refused
jurisdiction, due to an investigative proceeding under military
jurisdiction pertaining to the same events.
40.
In view of the conflict of jurisdiction, on
March 12, 2003, the family members of the alleged victims filed a motion
with the Supreme Court of Justice, requesting that the court for
preliminary criminal proceedings of the Judicial District of Montecristi
pursue the preliminary proceedings of the investigation into the events
of June 18, 2000 and that the Joint Armed Forces and National Police
Court Martial of First Instance be refused jurisdiction in favor of the
civilian court. On January 3, 2005, the Supreme Court of Justice
decided to deny the motion because the military court had begun to
litigate the case prior to the civilian court. On May 27, 2005, the
Appellate Joint Armed Forces and National Police Court Martial amended
the judgment of the court of first instance and ordered the acquittal of
the convicted soldiers, in accordance with Articles 321 and 327 of the
Dominican Criminal Code.
41.
In this
regard, it is important to note that the Commission has repeatedly found
that the military courts are not an appropriate forum and thus do not
offer an adequate remedy for investigating, judging, and punishing
possible violations of the human rights established in the American
Convention that are allegedly committed by law enforcement agents or
members of the police, with their cooperation or acquiescence.
42.
As for the State’s argument to the effect
that the petitioners did not exhaust all of the remedies under Dominican
law, the IACHR notes that the State itself has recognized that under the
legislation of the Dominican Republic, civilians cannot participate in
proceedings heard in military courts. The petitioners allege—and the
State has not contested—that they did not have access to the proceeding
or the case file and they were not notified of the decisions issued by
the military courts.
43.
The
petitioners availed themselves of the remedies to which they had access
for the purpose of requesting proceedings in the regular courts. With
the decision issued by the Supreme Court of Justice on January 3, 2005,
which decided in favor of the military jurisdiction in the
jurisdictional motion brought before it, the exception to exhaustion of
domestic remedies provided for in Article 46.2.a of the American
Convention is verified, because due legal process to protect the right
or rights allegedly violated did not exist in the domestic legislation
of the Dominican Republic.
44.
In view of
the characteristics of this case, the Commission considers that the
exception stipulated in Article 46.2.a of the American Convention is
applicable, hence the requirement of exhaustion of domestic remedies
cannot be invoked.
45.
It only
remains to indicate that invocation of the exceptions to the rule of
exhaustion of domestic remedies stipulated in Article 46.2 of the
Convention is closely linked to the determination of possible violations
of certain rights established therein, such as guarantees of access to
justice. However, Article 46.2, by its nature and purpose, is a
provision with autonomous content vis-à-vis the substantive provisions
of the Convention. Therefore, whether the exceptions to the rule of
exhaustion of the domestic remedies established in that Article are
applicable to the case in point must be determined previously and
separately from the analysis of the merits of the case, since it relies
on a different standard of evaluation from the one used to determine a
violation of Articles 8 and 25 of the Convention. It should be
clarified that the causes and effects that prevented exhaustion of
domestic remedies in this case will be examined, as relevant, in the
report adopted by the Commission on the merits of the case, to determine
if they effectively constitute violations of the American Convention.
2.
Deadline for presentation
46.
Pursuant to
Article 46.1.b of the American Convention, a requirement for
admissibility of the petitions is that they be lodged within a period of
six months from the date on which the party alleging violation of his
rights was notified of the final judgment. Article 32 of the
Commission’s Rules of Procedures establishes that “in those cases in
which the exceptions to the requirement of prior exhaustion of domestic
remedies are applicable, the petition shall be presented within a
reasonable period of time, as determined by the Commission. For this
purpose, the Commission shall consider the date on which the alleged
violation of rights occurred and the circumstances of each case.”
47.
In the present case, the Commission decided
on the applicability of the exception to the requirement of exhaustion
of domestic remedies. Considering that the military courts took the
initiative to open the investigation into the events that occurred on
June 18, 2000; the actions taken by the alleged victims to petition the
State; the
evolution and continuity of the denounced situation;
the resolution on January 3, 2005, the Supreme Court of Justice that
decided to deny the motion because the military court had begun to
litigate the case prior to the civilian court; the decision on May 27,
2005, of Appellate Joint Armed Forces and National Police Court Martial
amended the judgment of the court of first instance and ordered the
acquittal of the convicted; and the date the petition was lodged with
the IACHR, the Commission is of the view that the complaint was
presented within a reasonable period of time. Therefore, the
requirement regarding the deadline for presentation of the petition was
met, pursuant to the terms of Article 32 of its Rules of Procedure.
3.
Duplication of international proceedings and res judicata
48.
Article 46.1.c
states that admission of petitions is subject to the requirement that
the matter “is not pending in another international proceeding for
settlement,” and Article 47.d of the Convention stipulates that the
Commission shall not admit a petition that “is substantially the same as
one previously studied by the Commission or by another international
organization.” The petitioners have expressly stated in their petition
that they have not appealed to another international organization with
regard to the events that are the subject of this petition. Nor is
there evidence in the case records that the subject of the petition is
pending a decision in another international proceeding, or that it
reproduces a petition already examined by this or another international
organization. Consequently, the requirements established in the
referenced articles have been met.
4.
Characterization of the alleged
events
49.
As the
Commission has already indicated in other cases, at this stage of the
procedure, it is not relevant to verify whether or not there was a
violation of the American Convention. For the purposes of
admissibility, the IACHHR must merely decide if the allegations describe
events that could be characterized as a violation of the American
Convention, according to the terms of its Article 47.b, and if the
petition is “manifestly groundless” or “obviously out of order.”
pursuant to paragraph (c) of that Article. The standard for evaluation
of these facts is different from the one required to decide on the
merits of the petition. In the present stage, the IACHR must conduct a
preliminary prima facie evaluation that does not entail a prior
judgment or advance opinion as to the merits. Its own Rules of
Procedure reflect this distinction between the evaluation that must be
conducted to declare a petition admissible, and the one required to
determine the actual responsibility of the State, by establishing
clearly differentiated stages for study of admissibility and merits.
50.
In the present
case, the petitioners allege violation by the State of the rights to
life, humane treatment, personal liberty, a fair trial, equality before
the law, and judicial protection, established in Articles 4, 5, 7, 8, 24
y 25 of the American Convention, respectively, considered together with
the obligation to respect these rights and the duty to adopt domestic
legislation, established in Article 1.1 of that instrument.
51.
Having
reviewed the information submitted by the parties, the Commission finds
that the petitioners have made allegations that are not “manifestly
groundless” or “obviously out of order,” and that, if proven to be true,
could represent violations of Articles 4, 5, 7, 8, 24, and 25 of the
American Convention, respectively, considered in relation to Article 1.1
of that international instrument.
52.
More specifically, the Commission deems it
appropriate to state that the facts described in this petition are
fundamentally related to the assumed international responsibility of the
Dominican Republic stemming from the action of State agents that
resulted in the alleged arbitrary deprivation of life of Jacqueline
Maxime, Fritz Alce (Gemilord), Roselene Theremeus, Ilfaudia Dorzema,
Máximo Rubén de Jesús Espinal, Pardis Fortilus, and Nadege Dorzema, the
presumed failure to ensure the humane treatment of Joseph Pierre,
Selafoi Pierre, Silvie Thermeus, Roland Israel, Rose Marie Dol, Josué
Maxime, Michel Florantin, Celicia Petithomme/Estilien, Sonide Nora,
Alphonse Oremis, Renaud Timat, and Honorio Winique, the presumed
deprivation of the freedom and presumably arbitrary deportation of some
of the alleged victims, and the failure to ensure a fair trial and
judicial protection that would have provided for reparations for damages
incurred.
53.
In addition, based on the information
provided by the petitioners and on the principle of iura novit curia,
that grants the power to determine the law applicable to the specific
case, the Commission decides, without prejudice to the merits, that the
events described, if proven, could also characterize a violation of
Article 2 of the American Convention, as regards the duty of states to
adopt legislative provisions to give effect to the rights and freedoms
established therein, and especially in relation to national criminal
legislation and regulation of the jurisdiction of military and regular
courts.
54.
Since the
lack of foundation or groundlessness for these aspects of the complaint
are not evident, the Commission considers that the requirements
established in Article 47.b and 47.c of the American Convention have
been met with regard to this aspect of the complaint.
V.
CONCLUSION
55.
The Commission concludes that without
prejudice to the merits of the case, and after analyzing the available
information and verifying compliance with the admissibility requirements
established in Articles 46 and 47 of the American Convention, as well as
in Articles 30 and 37 of its Rules of Procedure, the petition is
admissible with regard to the alleged violation of the rights
established in Articles 4, 5, 7, 8, 24, and 25 of the American
Convention, considered in relation to the general obligation established
in Article 1.1 of that international instrument. Moreover, in
application of the principle of iura novit curia, the Commission
will, in the merits stage, examine whether there is a possible violation
of Article 2 of the American Convention.
56.
On the basis of the factual and legal
arguments set forth herein, and without prejudice to the merits of the
case,
THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
DECIDES:
1.
To declare
the present petition admissible, with regard to the alleged violation of
the rights established in Articles 4, 5, 7, 8, 24, and 25 of the
American Convention, all of which are considered in relation to the
obligations derived from Article 1.1 of this international instrument.
Moreover, in application of the principle of iura novit curia,
the Commission concludes that the petition is admissible for the alleged
violation of Article 2 of the American Convention.
2.
To forward
this report to the petitioners and the State.
3.
To continue
with its analysis of the merits of the case.
4.
To publish
this decision and include it in its Annual Report to the OAS General
Assembly.
Approved by the
Inter-American Commission on Human Rights on the 22nd day of
the month of December 2008. (Signed): Paolo G. Carozza, Chairman; Luz
Patricia Mejía Guerrero, First Vice Chairwoman; Felipe González, Second
Vice Chairman; Paulo Sérgio Pinheiro, Florentín Meléndez, and Víctor E.
Abramovich, members of the Commission.
On October 23, 2006, the IACHR Executive Secretariat received
accreditation as co-petitioners from UQAM’s International Clinic for
the Defense of Human Rights, represented by Bernard Duhaime and
Carol Hilling.
The petitioners indicate that Michel Florantin and Michel Francois
is the same person, and that in the interrogation of Michel
Florantin in Court, he was called Michel Fransua. (The original
petition received by the IACHR on November 28, 2005, page 8.)
The petitioners mention that the DOIF is a specialized corps to
combat the smuggling of weapons, vehicles, and drugs across the
border, made up of a joint brigade of the Dominican Armed Forces
(Army, Air Force, and Navy).l Communication of the petitioners
received on November 28, 2005, para. 8.
I/A
Court H.R., Velásquez Rodríguez Case. Judgment of July
29, 1988. Series C No. 4, para.
63.
Report Nº 52/97, Case 11218, Arges Sequeira Mangas, 1997 IACHR
Annual Report, paras.
96 and 97. See
also Report N° 55/97, para. 392.
IACHR, Third Report on the Human Rights Situation in Colombia
(1999), p. 175; Second Report on the Human Rights Situation in
Colombia (1993), p. 246; Report on the Human Rights Situation
in Brazil (1997), pp. 40-42. Also, the Inter-American Court has
recently confirmed that military courts are only an adequate forum
for judging members of the military who committed crimes or offenses
that by their very nature violate legal goods belonging to the
military. I/A Court H.R., Durand and Ugarte Case. Judgment
of August 16, 2000. Series C No. 68, para. 117. IACHR, Report Nº
43-02, Admissibility, Petition 12.009, Leydi Dayán Sánchez,
Colombia, October 9, 2002, para. 23.
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