reparations - Corte Interamericana de Derechos Humanos

INTER-AMERICAN COURT OF HUMAN RIGHTS CASE OF EXPELLED DOMINICANS AND HAITIANS v. DOMINICAN REPUBLIC
JUDGMENT OF AUGUST 28, 2014
(Preliminary objections, merits, reparations and costs) In the case of Expelled Dominicans and Haitians,( the Inter-American Court of Human Rights (hereinafter also "the Inter-
American Court" or "the Court"), composed of the following judges:(( Humberto Antonio Sierra Porto, President
Roberto F. Caldas, Vice President
Manuel E. Ventura Robles, Judge
Eduardo Vio Grossi, Judge, and
Eduardo Ferrer Mac-Gregor Poisot, Judge; also present, Pablo Saavedra Alessandri, Secretary, and
Emilia Segares Rodríguez, Deputy Secretary; pursuant to Articles 62(3) and 63(1) of the American Convention on Human
Rights (hereinafter also "the American Convention" or "the Convention") and
Articles 31, 32, 65 and 67 of the Rules of Procedure of the Court
(hereinafter "the Rules of Procedure"), delivers this Judgment, structured
as follows:
TABLE OF CONTENTS
I INTRODUCTION OF THE CASE AND PURPOSE OF THE DISPUTE 5
II PROCEEDINGS BEFORE THE COURT 8
III COMPETENCE 12
IV PRELIMINARY OBJECTIONS 12
A) Preliminary objection of failure to exhaust domestic remedies 13
A.1. Arguments of the parties and of the Commission 13
A.2. Considerations of the Court 14
B) Objection of the Court's lack of competence ratione temporis 16
B.1. Arguments of the parties and of the Commission 16
B.2. Considerations of the Court 17
C) Objection of the Court's lack of competence ratione personae 19
C.1. Arguments of the parties and the Commission 19
C.2. Considerations of the Court 20
V PRELIMINARY ISSUES 21
A) Determination of the presumed victims 21
A.1. Arguments of the parties and the Commission 22
A.2. Considerations of the Court 26
A.2.1. Persons identified with different names 26
A.2.2. Persons whose place of birth could not be determined 27
A.2.3. Absence of powers of attorney in favor of the representatives 28
A.2.4. Questions raised about identity 29
A.2.5. Persons who will not be considered presumed victims 29
B) The factual framework 31
B.1. Arguments of the parties and the Commission 31
B.2. Considerations of the Court 32
VI EVIDENCE 33
A) Documentary, testimonial and expert evidence 33
B) Admission of the documentary evidence 34
C) Admission of the statements of the presumed victims and of the
testimonial and expert evidence 45
C.1. Considerations on the statements of the presumed victims 45
C.2. Considerations on the expert evidence 46
VII FACTS 47
A) Context 47
A.1. The socio-economic situation of Haitians and those of Haitian descent
and the alleged discriminatory concept held of them 48
A.1.1 The socio-economic situations of Haitians and those of Haitian
descent in the Dominican Republic 48
A.1.2. The alleged discriminatory concept in relation to Haitians and those
of Haitian descent in the Dominican Republic 50
A.2. The alleged problem for Haitians and Dominicans of Haitian descent to
obtain official documents 52
A.3. The alleged existence of a systematic practice of collective
expulsions of Haitians and Dominicans of Haitian descent 54
A.4. Pertinent domestic legal framework 57
A.4.1. Laws on Dominican nationality 57
A.4.1.1. Laws in force at the time of the facts 57
A.4.1.2. Innovations in legislation and jurisprudence after 2004 58
A.4.2. Legal framework applicable to deprivation of liberty and to
expulsion or deportation procedures 60
B) Facts of the case 63
B.1. Introduction 63
B.2. Facts regarding the members of the different families 65
B.2.1. Medina family 65
B.2.2. Fils-Aimé family 68
B.2.3. Bersson Gelin 70
B.2.4. Sensión Family 71
B.2.5. Rafaelito Pérez Charles 72
B.2.6. Jean family 73
VIII RIGHTS TO JURIDICAL PERSONALITY, TO A NAME, TO NATIONALITY AND TO
IDENTITY, IN RELATION TO THE RIGHTS OF THE CHILD, THE RIGHT TO EQUAL
PROTECTION AND THE OBLIGATIONS TO RESPECT RIGHTS WITHOUT DISCRIMINATION AND
TO ADOPT DOMESTIC LEGAL PROVISIONS 75
A) Introduction 75
B) Arguments of the Commission and of the parties 76
C) Considerations of the Court 82
C.1. Rights to nationality and to equality before the law 82
C.1.1. Nationality and the obligation to prevent, avoid and reduce
statelessness 83
C.1.2.Nationality and the principle of equality and non-discrimination 85
C.2. Rights to recognition of juridical personality, to a name, and to
identity 86
C.3. Rights of the child 88
C.4. Obligation to adopt domestic legal provisions 88
C.5. Application to this case 89
C.5.1. Regarding those whose identity documents were disregarded by the
authorities at the time of their expulsion 89
C.5.2. Regarding those born in Dominican territory who were not registered
and did not have documentation 90
C.5.3. Regarding the alleged violation of Article 2 of the American
Convention, in relation to its Articles 1(1), 3, 18, 20 and 24 97
IX RIGHTS TO PERSONAL LIBERTY, TO JUDICIAL GUARANTEES, TO FREEDOM OF
MOVEMENT AND RESIDENCE, AND TO JUDICIAL PROTECTION, IN RELATION TO THE
RIGHTS OF THE CHILD AND THE OBLIGATION TO RESPECT RIGHTS WITHOUT
DISCRIMINATION 106
A) Arguments of the Commission and of the parties 107
B) Considerations of the Court 110
B.1. Basic guarantees in immigration proceedings that may involve
deprivation of liberty and expulsion or deportation 111
B.1.1. General considerations 111
B.1.2. Standards for expulsion proceedings 112
B.1.3. Standards related to the deprivation of liberty, including that of
children, in immigration proceedings 115
B.1.4. The prohibition of collective expulsions 116
B.2. Legal qualification of the facts of this case 117
B.2.1. Right to personal liberty 117
B.2.1.1. Alleged illegal and arbitrary nature of the deprivations of
liberty (Article 7(2) and 7(3)) 117
B.2.1.2. Notice of the reasons for the deprivations of liberty (Article
7(4)) 119
B.2.1.3. Presentation before a competent authority (Article 7(5)) 120
B.2.1.4. Judicial review of the lawfulness of deprivations of liberty
(Article 7(6)) 121
B.2.1.5. Conclusion 122
B.2.2. Rights to freedom of movement and residence, to judicial guarantees
and to judicial protection 122
B.2.2.1. Collective expulsions of Haitian nationals (Article 22(9)) 122
B.2.2.2. The expulsions and the alleged violation of the freedom of
movement and residence of the Dominican nationals (Articles 22(1) and
22(5)) 123
B.2.2.3. Respect for the basic procedural guarantees (Article 8(1)) 124
B.2.2.4. The existence of an effective remedy to contest the detention and
expulsion (Article 25(1)) 125
B.2.3. The discriminatory nature of the expulsions (Article 1(1)) 126
B.3. Conclusion 128
X RIGHT TO THE PROTECTION OF PRIVACY AND RIGHTS OF THE FAMILY in relation
to the rights of the child and the obligation to respect rights 129
A) Arguments of the Commission and of the parties 129
B) Considerations of the Court 130
B.1. Family separation (Article 17(1)) 131
B.2. Interference in the family home (Article 11(2)) 134
B.3. Conclusion 135
XI RIGHT TO PERSONAL INTEGRITY 136
A) Arguments of the Commission and of the parties 136
B) Considerations of the Court 138
XII RIGHT TO PROPERTY 138
A) Arguments of the Commission and of the parties 138
B) Considerations of the Court 139
XIII REPARATIONS 140
A) Injured party 140
B) Measures of integral reparation: restitution, satisfaction, and
guarantees of non-repetition 140
B.1. Measures of restitution 141
B.1.1. Recognition of nationality to the Dominicans and residence permits
for the Haitians 141
B.1.1.1. Willian Medina Ferreras and the members of his family 141
B.1.1.2. Victor Jean, Miguel Jean, Victoria Jean and Natalie Jean 143
B.1.1.3. Marlene Mesidor 143
B.2. Measures of satisfaction 143
B.2.1. Publication of the Judgment 143
B.3. Guarantees of non-repetition 144
B.3.1. Human rights training for State agents 144
B.3.2. Adoption of domestic legal measures 145
B.3.4. Other measures 146
B.3.5. Other measures requested 146
C) Reparations for pecuniary and non-pecuniary damage 147
C.1. Pecuniary damage 148
C.2. Non-pecuniary damage 149
D) Costs and expenses 150
E) Reimbursement of expenses to the Victims' Legal Assistance Fund 153
F) Method of complying with the payments ordered 154
XIV OPERATIVE PARAGRAPHS 155
I
INTRODUCTION OF THE CASE AND PURPOSE OF THE DISPUTE
Submission of the case and synopsis: On July 12, 2012, in accordance with
Articles 51 and 61 of the Convention, the Inter-American Commission on
Human Rights (hereinafter "the Inter-American Commission" or "the
Commission") submitted to the Court case 12,271 against the State of the
Dominican Republic (hereinafter "the State" or "the Dominican Republic").
According to the Commission, the case relates to the "arbitrary detention
and summary expulsion from the territory of the Dominican Republic" of the
presumed victims who are Haitians and Dominicans of Haitian descent,
including children (infra para. 3.c.i), without following the expulsion
procedure set out in domestic law. In addition, the Commission considered
"that a series of obstacles prevented Haitian immigrants from registering
their children born in Dominican territory," and persons of Haitian descent
born in the Dominican Republic from obtaining Dominican nationality. According to the Commission the case "occurred in a tense climate of mass
collective expulsions of individuals that involved Dominicans and aliens
alike, both documented and undocu