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RESOLUTION Nš 8/53 CASE
2711 URUGUAY June 30, 1983 BACKGROUND:
1. On January 12,
1978, the Commission's Executive Secretariat received a note dated the
7th of the same month, denouncing that due to Mr. Juan Raul Ferreira's
appearance before the Commission to report on the human rights situation
of his country, the Republic of Uruguay, he had received an official
communication from that country's Consulate in Washington, dated
December 6, 1977, in which he is informed that the competent Uruguayan
authorities did not authorize the renewal of his passport, number
169.651, which had been issued to him by the Ministry of Foreign Affairs
of Uruguay on September 5, 1972. 2. Following the
receipt of the complaint, the Commission, on April 7, processed it in
accordance with Articles 42 and 54 of the Regulations then in force,
transmitting to the Foreign Affairs Ministry of Uruguay the pertinent
parts of the same and requesting that, in addition to furnishing the
information it deemed appropriate, to provide "any information that
would allow to determination as to whether the domestic legal remedies
in this case have been exhausted or not." 3. On March 6,
1981, in compliance with the provisions of Article 39 of the new
Regulations, applicable to the case in accordance with Article 49, and
in view of the fact that the Government of Uruguay had not provided the
information requested in the communication dated April 7, 1978, the
Commission approved Resolution 22/81 which declared that in the
proceedings "the Government of Uruguay violated Article VIII (right
to residence and movement) of the American Declaration of the Rights and
Duties of Man;" it recommended that the Uruguayan Government: a)
renew the passport of Mr. Juan R. Ferreira and allow him to enter his
country; and b) inform the Commission within sixty days of the measures
adopted to implement this recommendation; it resolved that the
resolution would be included in the Commission's Annual Report
"without prejudice to the fact that the Commission may reconsider
the case in light of the measures adopted by the Government." 4. Resolution
22/81 was transmitted to the Government of Uruguay through
communications to the Foreign Affairs Ministry and to the Ambassador to
the Organization of American States, as well as to the complainant in a
communication sent to the address indicated by him. All these
communications were dated March 19, 1981. 5. On May 13,
1981, shortly before the expiration of the sixty-day period, the
Commission received a report furnished by the complainant stating that
Mr. Ferreira's situation "remains unchanged," since in three
instances the Uruguayan Consul in Washington had informed him that he
did not have instructions from his Government to renew his passport. For
that reason, the immigration authorities of the United States have
issued him a "permanent residence" permit on grounds of
"Statelessness." 6. At the same
time, on the expiration day of the sixty-day period indicated in
Resolution 22/81, the Commission received communication 554/81-16.B.18
(b) dated May 14, 1981, from Uruguay's Permanent Mission to the
Organization of American States which transcribes a long communication
from its Government where "in accordance with the provisions of
Article 50, paragraph 3, of the IACHR's Regulations, it wishes to make
some observations so that Resolution 22/81, dated March 6, 1981,
relating to case 2711, may be reconsidered." 7. The Government
of Uruguay based its petition for the resolution reconsideration on the
fact that "the conclusion reached by it derives from an erroneous
interpretation of the legal basis upon which it is founded, adding that
"after comparing the facts described with the legal text which the
Commission claims has been violated, it becomes evident that at no time
have the rights of the petitioner, protected by the provisions of the
aforementioned Article VIII, been affected", which according to the
above communication, is demonstrated by considering Article 37,
paragraph l, of the Magna Carta of Uruguay which proclaims that
"any person may enter the territory of the Republic, take residence
and leave with possessions in accordance with the law and without
prejudice to third parties," and by the fact that Mr. Ferreira left
Uruguay of his own will and "nothing prevents him from returning to
it since the fact that his passport has not been renewed does not
preclude his return to the country because there is no law requiring
that a uruguayan national carry a current passport to exercise that
right." 8. The pertinent
parts of the above mentioned communication from the Foreign Affairs
Ministry of Uruguay were transmitted to the petitioner. In a written
communication dated June 19, l981, he refuted the content of that
communication and added to the charge against his government, which he
accuses of having arrested him eight times since June l973 without
formal charges, in addition to searching his house when he as absent,
reasons which forced him to leave the country in a way that cannot be
defined as "leaving voluntarily". He also adds that he has
been informed that in file 7980/81 of the Third Military Examining
Magistrate of Uruguay, his capture has been ordered, for which reason he
could not "reside in liberty on the national territory" if he
returned to Uruguay, as the Government would want us to believe. Finally
he requests that the "Government's answer be considered
inappropriate, that it be requested to inform whether there is an arrest
order in the mentioned file or not" and that Resolution 22/81 be
ratified since an answer has been given in "the Government of
Uruguay's confession that it has denied him the right to possess a
Uruguayan passport." 9. The important
parts of the petitioner's communication were transmitted to the Foreign
Affairs Ministry of Uruguay in a note attached to that of September 3,
requesting that the Government "take the steps it deems appropriate
in order that the Commission may receive all the information on this
case within thirty days." This request was reiterated in a written
communication dated the following November 15, indicating that "if
that information was not received within a reasonable time, the
Commission would begin to consider the possible application of Article
39 of the Regulations." 10.
The following December 16th, in communication number
1481/81-16.B.18 (b) dated two days earlier, the Permanent Mission of
Uruguay to the Organization of the American States transmitted to the
Commission the official note in which its Government "reiterates in
full the observations made when requesting that Resolution 22/81 be
reconsidered (which in essence...challenges the assertion in Resolution
22/81 that the Government of Uruguay has violated Article VIII of the
American Declaration of the Rights and Duties of Man) (since) nothing
prevents him (Mr. Ferreira) from returning to it (the State of which he
is a national), because the fact that his passport has not been renewed
does not preclude his return to the country..." In the transcribed
note, the Government adds that "the additional considerations
expressed by the complainant tend to shift the matter being debated, on
grounds that are different from those on which the Government of Uruguay
bases its assertions," and it concludes requesting that the
Commission "reconsider Resolution 22/81 abiding, with a strict
sense of justice, by the factual and legal elements which truly weigh on
the matter." 11.
That all the prescribed steps in the processing of the foregoing
complaint have been completed, with each party, complainant and the
party the complaint has been lodged against, having had the opportunity
to express at length their respective allegations and submit to the
Commission the evidence they have deemed pertinent, thereby thoroughly
completing the preliminary investigation process. CONSIDERING:
1. That the
Government of Uruguay has at no time denied, and has implicitly accepted
as true, that it refused in 1977, and apparently continues to refuse to
this date, the authorization required by its administrative regulations
for the Consular Service of the Nation--specifically the Consulate in
Washington--to renew passport 169.651 of Mr. Juan Ferreira Sienra,
Uruguayan citizen with identification card 1.247.167, which had been
issued to him on September 5, 1972 and which was apparently valid for
five years. 2. That the
Government of Uruguay maintains that, the refusal to provide a citizen
or national of the State with a valid passport, does not constitute a
violation of the right to residence and movement established in the
Bogota Declaration since, according to the government, such citizen may
return to his country, move about its territory or establish residence
in it and not leave it except of his own will, adding that, of course,
"only those exempt from responsibility for criminal or
anti-national activities may legitimately demand the exercise of that
liberty." 3. That the
Government of Uruguay apparently does not lend importance to the
implicit interpretation that the Commission gave to the aforementioned
Article VIII when it states that said article was being violated to the
detriment of Mr. Juan Ferreira, since the Government refused to renew
his passport. That it was mute on this aspect, concentrating all its
arguments on the fact that, according to the contentions in the official
notes, the Republic of Uruguay departing from current general practice
in almost all nations -- does not require a passport for entry into its
territory and to remain there. 4. That even if we
take that assertion by the Government of Uruguay as true, the
fundamental question involved in the problem dealt with in Resolution
22/81 remains unanswered, that is, the principle valid for this case and
similar cases that may arise today or tomorrow or at any other time, as
to whether a government that refuses to issue valid passports to persons
entitled to them, or imposes upon them conditions so severe that would
in fact make them desist in the exercise of that right, complies with
the obligation of respecting the right of the human being to leave his
country's territory to go to that of any other State whose doors are not
closed to him. That a Government that refuses to issue, renew or extend
a valid passport to its nationals when they request it for travel
purposes, does not respect Article VIII of the American Declaration of
the Right and Duties of Man, unless a sentence or writ precludes it, or
it poses conditions or obstacles of such a nature as to in fact make the
person decide to surrender the exercise of his right because of the
excessive moral or monetary cost in obtaining, by legitimate means, the
passport required to travel from one country to another. That in our
times, a passport is the most important document for identification when
travelling to countries other than the State of which one is a national
and, in most cases, when returning to it as well, since according to the
Spanish Language Dictionary "it is the written license or dispatch
issued in order to obtain free and safe passage from one nation or
country to another," a definition that is consistent with that of
the legal Encyclopedia Omeba edited by Doctor Martha Oliveros, which
states that a passport "is a document issued by the competent
authority of a State, at the request of the interested party, in order
to be able to justify his identity to foreign authorities." That,
in addition, a passport performs yet another function, which is that of
allowing its bearer to purchase the tickets necessary for his
transportation to another country by any land, sea or air, since none of
the international passenger carriers sell tickets to persons without a
valid passport for legal and commercial travel reasons that do not
require an explanation. That
in modern times a passport is as essential as an identification
document, that in l919, the League of Nations and recently the United
Nations, agreed to provide substitute identification documents--the
Nansen Passport at that time, and passports for stateless persons and
refugees in more recent times--to all those persons who, because of
political events, were forced to seek exile or abandon their national
homes, so that these documents might replace a passport, which under
normal circumstances, constitutes the classical identification document
for those who find themselves in territories other than those of their
place of origin. That
the illegal, unjustified refusal of a passport to a person is, somehow a
means of imposing on him a capitis diminutio of ridding him of
the document that gives proof of his nationality, preventing him from
travelling outside of his country, forcing him, by virtue of that
circumstance, to remain in the country subject to the authorities
restricting him to it, and is therefore a violation of the right of a
persons recognized in Article VII of the American Declaration of Bogota
and in Article 13 of the Universal Declaration of Paris, notwithstanding
the fact that neither of those documents specifically mentions the right
to a passport as the logical consequence of the right to leave the
native country and return to it. The reason is obvious: the rights of a
human being, which are his by virtue of the fact that he is a person,
are not taken away by a strict interpretation of the grammatical meaning
of the words used in both Declarations on Human Rights. Those rights are
not respected if, in strict observance of the written rule, the logical
or natural consequences that ensue from them are denied; the right of
freedom of opinion, expression and of thought is not respected, if the
administrative authorities refuse to grant the authorizations required
by legislation to establish new written, oral or visual news media; the
right of private persons or organizations of that nature to establish
and operate educational institutions is not respected, if the
certificates or diplomas granted by them under the same conditions as
those granted by official institutions are not given the same
recognition and treatment. It could almost be said that the
"observance" of each one of the rights included in both
Declarations demands a positive and specific attitude on the part of the
State and its authorities in the granting of some permit or document,
which are absent from the text but which are a logical consequence of
its philosophical content. THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, RESOLVES: 1.
That the Government of Uruguay in its communications of May 14,
and December 14, 1981, implicitly admits, by not denying it, the
denounced fact that Mr. Juan Raul Ferreira has been denied and is still
being denied the right to possess a Uruguayan passport. 2. That in that
implicit admission, the Government of Uruguay confirms that in the case
in question, it has violated Article VIII (right to residence and
movement) of the American Declaration of the Rights and Duties of Man. 3. That
consequently, Resolution 22/81 dated March 6, 1981, referring to Case
2711, must be confirmed and is confirmed in all its parts and reiterates
to the Government of Uruguay the recommendations contained therein to
provide Mr. Juan R. Ferreira with his Uruguayan passport and to inform
the Commission within sixty days of the measures adopted to implement
this recommendations. 4. To communicate
this resolution to the Government of Uruguay and to the complainant. 5. To include this
resolution in the next Commission's Annual Report to the General
Assembly of the Organization of American States, in accordance with
Article 50, paragraph 5, of the Commission's Regulations, without
prejudice to the fact that at its next session, the Commission may
reconsider the case in light of the measures adopted by the Government
in this respect.
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