REPORT N° 11/07
INTERSTATE CASE 01/06
NICARAGUA v. COSTA RICA
March 8, 2007


I. SUMMARY

1. On February 6, 2006, the Inter-American Commission on Human Rights (hereinafter the "Inter-American Commission", “Commission” or “IACHR”) received a communication from the State of Nicaragua which alleged that the State of Costa Rica has committed violations of Articles 1(1) (Obligation to respect rights), 8 (Right to a fair trial), 24 (Right to equal protection), and 25 (Right to judicial protection) of the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”); Articles 2, 7, 8, and 28 of the Universal Declaration of Human Rights; Articles II (Right to equality before law) and XVIII (Right to a fair trial) of the American Declaration of the Rights and Duties of Man; and Article 9 of the Inter-American Democratic Charter, which refers to the elimination of all forms of discrimination, due to the alleged failure on the part of the State of Costa Rica to fulfill its duty to ensure protection for the human rights of the Nicaraguan migrant population under its jurisdiction.

2. By virtue of the fact that both the State of Costa Rica and the State of Nicaragua deposited their declarations concerning recognition of the competence of the Commission to receive and examine communications from one state against another, on February 13, 2006, the IACHR decided to process the communication in accordance with Articles 45 et seq. of the Convention and to transmit the communication presented by the State of Nicaragua to the State of Costa Rica.

3. The Commission held a hearing on the case on July 18, 2006, in the framework of its 125th Regular Session and placed itself at the disposal of the parties with a view to reaching a friendly settlement. On September 7, 2006, owing to the fact that the State of Costa Rica mentioned on that occasion that it was not timely to initiate the friendly settlement procedure, the Inter-American Commission, in keeping with Article 41(4) and (6) of its Rules of Procedure, decided to conclude its intervention in the friendly settlement procedure and to continue to process the interstate communication.

4. In light of the fact that the considerations on admissibility and merits are closely connected in the case, the Commission decided, pursuant to Article 37(3) of its Rules of Procedure, to defer its treatment of admissibility until the debate and decision on the merits, particularly since the Commission found from its examination of the arguments and evidence presented by both States that the allegation regarding the existence of a generalized practice of discrimination against the Nicaraguan migrant population in Costa Rica was neither manifestly groundless nor obviously out of order.

5. The Commission considered it necessary to receive information from both states on the merits of the allegations in order to determine if there is enough evidence to verify the existence of a practice of discrimination tolerated by the State of Costa Rica, to the point where it would be futile to attempt to exhaust the remedies under domestic law. Having examined the arguments and evidence presented during the merits stage of the case, the Commission finds that the evidence presented by the State of Nicaragua is not sufficient to show the existence of a generalized practice of discrimination against the Nicaraguan migrant population in Costa Rica, and, therefore, it was not appropriate to assume that no suitable and effective remedies exist to repair the violations alleged in this case.

6. Accordingly, the Commission concludes that the allegations of the Nicaraguan State concerning violation of the rights enshrined in Articles 1(1) (Obligation to observe rights), 8 (Right to a fair trial), 24 (Right to equal protection), and 25 (Right to judicial protection) of the American Convention on Human Rights, are inadmissible under Articles 46 of the Convention and 31 of the Rules of Procedure of the IACHR.

II. PROCESSING BY THE COMMISSION

7. On February 6, 2006, the Inter-American Commission received a communication from the State of Nicaragua[1] “denouncing the State of Costa Rica […] for breach of the duty to offer due guarantees for the protection of human rights contained in the American Convention on Human Rights and other international treaties […] to the detriment of Nicaraguan citizens resident in Costa Rica.”[2] The Commission registered the communication with the number PI 01/06 (Interstate Petition 01/06).

8. On February 6, 2006, the Commission also received a note from the Permanent Mission of Nicaragua to the Organization of American States (OAS),[3] in which it enclosed a copy of the note sent to the Secretary General of the OAS, which, according to the communication of the State of Nicaragua, was received by the General Secretariat of the Organization on Friday, February 3, 2006. The purpose of the note to the Secretary General was to bring to his attention the declaration of January 26, 2006,[4] in which the State of Nicaragua recognizes the competence of the Inter-American Commission on Human Rights to receive and examine communications in which a state party alleges that another state party has committed a violation of a human right set forth in the Convention. Furthermore, the note requests the Secretary General to transmit the contents of that declaration to the other states parties to the Convention and the members of the Organization of American States, to which end it enclosed a photocopy of Official Gazette of Nicaragua (La Gaceta) No. 22 of January 26, 2006, in which the declaration was published.

9. On February 9, 2006, the Commission received a note from the Permanent Mission of Nicaragua to the Organization of American States in which it requested information about the subsequent processing of the interstate communication. [5]

10. On February 13, 2006, the Commission decided to transmit to the State of Costa Rica the communication presented by the State of Nicaragua together with its annexes, including the copy of the note addressed to the General Secretariat by the State of Nicaragua bringing to its attention the declaration concerning recognition of the competence of the Commission to receive and examine interstate communications. On that occasion the Commission informed both parties that the communication of the State of Nicaragua would be processed in accordance with the procedure set down in Articles 45 et seq. of the American Convention and, in keeping with Articles 30(3) and 48 of its Rules of Procedure, requested the State of Costa Rica to present a reply to the interstate communication within two months, counted from the date of transmission of said communication. The note in which the instant interstate communication and its annexes were conveyed to the State of Costa Rica was transmitted on February 15, 2006.

11. On February 24, 2006, the State of Nicaragua sent a note to the Commission to request it to rectify the steps taken in the proceeding in the instant interstate communication inasmuch as the communication was not lodged under Articles 45 et seq. of the Convention, but pursuant to Articles 48 to 50 of the Convention. On that occasion, the State of Nicaragua mentioned that it “invokes, for this case, the procedure determined by the Inter-American Court of Human Rights in the Case of Viviana Gallardo et al, on which occasion Costa Rica, a state party, filed an application against Costa Rica before the Inter-American Court of Human Rights, which ordered said state to proceed in accordance with Articles 48 to 50 [of the Convention]”[6].

12. On March 24, 2006, the State of Nicaragua sent a note to the Commission in which it again asked the Commission to comply with its request with respect to the processing of the instant interstate communication[7]. Furthermore, in a note of March 31, 2006, the State of Nicaragua requested the Commission to rectify the processing of this communication since “the measures adopted by the Executive Secretariat are not in keeping with the petition or complaint of Nicaragua or with the Convention inasmuch as, before taking the matter to the Court, the State of Nicaragua decided to comply with Articles 48 to 50, which are obligatory according to Article 61 of said Convention.”[8] The State of Nicaragua reiterated this request in notes dated May 11, 2006,[9] May 16, 2006,[10] and several other notes, as well as at the public hearings held by the Commission on July 18 and October 18, 2006.

13. On March 31, 2006, the Commission wrote to the State of Nicaragua to inform it that at its 124th Session, the IACHR considered its submissions in connection with the processing of the instant interstate communication and resolved to await the reply of the State of Costa Rica in order then to adopt decision on the arguments regarding the processing of the interstate communication.

14. On April 6, 2006, the State of Nicaragua sent a note to the Commission requesting an explanation as to why it had been informed that the period granted to the State of Costa Rica would expire on April 15, 2006, when the note in which the Executive Secretariat transmitted the communication to the State of Costa Rica was dated February 13, 2006.[11] On April 7, 2006, the Commission informed the State of Nicaragua that the note of February 13, by which the communication presented by the government of Nicaragua was brought to the attention of the government of Costa Rica, was actually transmitted on February 15. Therefore, the two-month period granted to the State of Costa Rica began to run on February 15 and was due to expire on April 15, 2006.

15. On April 18[12] and April 20,[13] 2006, the State of Nicaragua wrote to the Commission to request information as to whether or not State of Costa Rica had presented its reply to this interstate communication in the requisite time and manner. On April 20, 2006, the State of Nicaragua again wrote to the Commission, requesting that it proceed without delay and create the working group mentioned in Article 36 of the Rules of Procedure of the IACHR, since it regarded “the failure of the State of Costa Rica to answer the petition lodged by Nicaragua as a submission thereto, as an acceptance of the serious allegations it contains.”[14]

16. On April 20, 2006, the Commission wrote to the State of Nicaragua to inform it that, as yet, the IACHR had received no response from the State of Costa Rica. On April 25, 2006, the State of Nicaragua wrote to the Commission reiterating its request that it declare its acceptance that the facts alleged by the State of Nicaragua in its interstate communication were true.[15]

17. On April 24, 2006, the State of Costa Rica presented to the Commission a request for an extension of 15 days to submit its reply to this communication.[16] On April 27, bearing in mind the importance of affording both states the opportunity to express their opinion with respect to this interstate communication, the Commission decided to grant the State of Costa Rica a single extension of eight days to respond to the communication of the State of Nicaragua, and set May 5, 2006, as the deadline for receiving the reply of the State of Costa Rica. This decision was communicated to both parties on April 27, 2006.

18. On May 1, 2006, the State of Nicaragua submitted a note advising the Commission of its position on the decision of the latter to grant an extension to the government of Costa Rica, inasmuch as said request was "time-barred and after the time limit."[17] In that note, the Nicaraguan State requests the Commission to annul the extension granted. This position was reiterated by the Nicaraguan State in the brief containing its observations on the reply of the State of Costa Rica to this interstate communication.[18]

19. On May 3, 2006, the Commission wrote to the State of Nicaragua to inform it that the Commission and its Executive Secretariat had acted in an absolutely objective and impartial manner in this case and that the Commission's processing of this communication was in accordance with the Convention and the Rules of Procedure of the IACHR. Furthermore, the Commission noted that all the Executive Secretariat's decisions on the processing of this interstate communication are consulted with the Inter-American Commission, or with its President, and have their full backing.

20. On May 5, 2006, the State of Costa Rica delivered to the Commission its reply to the interstate communication lodged against it by the Nicaraguan State.[19] This reply was transmitted that same day to the State of Nicaragua, which was given one month to present its observations.

21. On May 15, 2006, the Commission wrote to both States to invite them to a hearing to be held during its 125th Session in Guatemala, in order to address matters concerning the admissibility of this interstate communication.

22. On May 26, 2006, the State of Nicaragua presented to the Commission its observations on the reply of Costa Rica to the interstate communication.[20] The Commission forwarded those observations to Costa Rica on May 31 and granted it one month to submit its observations.

23. On June 1, 2006, the State of Nicaragua sent a note to the Commission with observations on the way in which the IACHR has processed this interstate communication.[21] On June 7, 2006, the President of the Commission wrote to the State of Nicaragua in reply to the notes requesting the Commission to rectify its processing of this interstate communication, and informed it that the Commission was of the opinion that the processing was in keeping with the American Convention and the Rules of Procedure of the IACHR.

24. The State of Nicaragua submitted additional information in briefs dated May 9, 2006, and June 5, 2006. For its part, on June 12, 2006, the State of Costa Rica wrote to the Commission in order to bring to its attention the press release issued by the Ministry of Foreign Affairs and Worship of Costa Rica on June 7, 2006, in which the government of Costa Rica reiterated its profound respect for the independence and autonomy of the Inter-American Commission.[22]

25. On July 5, 2006, the State of Costa Rica sent the Commission its response[23] to the request for observations that the Commission made to it on May 31, 2006, when it transmitted the observations of the State of Nicaragua to the reply of the Costa Rican State to this interstate communication. This response from Costa Rica was conveyed to the State of Nicaragua that same day, July 5, 2006, and the latter was given one month to present its observations.

26. On July 18, 2006, the Inter-American Commission on Human Rights, meeting at its 125th Session in Guatemala City, Guatemala, held a public hearing to address issues pertaining to the admissibility of this interstate communication. (Copies of the minutes and audio recordings of this hearing were transmitted to both states parties on August 22, 2006). After the hearing, the President of the Commission placed himself at the disposal of the parties for reaching a friendly settlement. The delegations of both parties agreed to give their reply to the Commission after they had consulted with the appropriate authorities in their respective States. On July 19, the Commission ratified in writing, to both parties, its decision to place itself at their disposal with a view to reaching a friendly settlement of the matter, and granted the respective governments two weeks to express their interest in initiating the procedure provided at Article 48(1)(f) of the Convention.

27. On July 26, 2006, the Inter-American Commission received an amicus curiae brief from the Office of the Human Rights Ombudsman of Nicaragua in connection with this interstate communication and, on July 27, 2006, transmitted this document to both parties.

28. On July 31, 2006, the Commission conveyed to Costa Rica the documents that the State of Nicaragua presented at the hearing held on July 18, 2006 in Guatemala, which contained the written version of its arguments as well as a series of annexes and evidentiary material.

29. On August 2, 2006, the State of Nicaragua sent the Commission its response to the request for observations made to it on July 5, 2006,[24] by the Commission when it forwarded the response of the State of Costa Rica of June 29, 2006.

30. On August 4, 2006 the Commission received a note dated July 24, 2006, in which the government of Nicaragua expressed its willingness to accept the offer of the IACHR to initiate a friendly settlement procedure.[25] On August 7, 2006, the Commission received a note dated August 4, 2006, in which the government of Costa Rica thanked the Commission for its offer but informed it that it was not timely at this juncture to initiate the friendly settlement procedure, bearing in mind the comments expressed after the hearing by the representatives of the State of Nicaragua to different media organizations.[26] On August 8, 2006, the Commission forwarded to the State of Costa Rica the note in which the Nicaraguan State accepted the invitation of the Commission to initiate a friendly settlement procedure and also transmitted to the State of Nicaragua the note whereby the Costa Rican State indicated that it was not timely at this juncture to initiate the friendly settlement procedure.

31. On August 10, 2006, the Commission received a note in which the State of Costa Rica transmitted to the Commission in writing the arguments and observations of its representatives at the hearing held in Guatemala on July 18, 2006;[27] the Commission forwarded said information to Nicaragua on August 11, 2006. In this connection, on August 23, 2006, the State of Nicaragua wrote to the Commission requesting it to declare this brief from Costa Rica as not received because it was time-barred and constituted an edited version of the oral submissions at the hearing.[28] On September 7, 2006, the Commission informed the State of Nicaragua that, pursuant to Article 48 (e) of the American Convention, the IACHR may receive, if it so requests, oral or written statements from the parties concerned at any time in the proceeding. Furthermore, the Commission drew attention to the fact that the audio from the hearing is part of the record in the case and when it issues is decision on the matter, the Commission will take all of the opinions expressed by both parties into consideration.

32. On September 7, 2006, in view of the fact that the State of Costa Rica said that it was not timely at this juncture to initiate a friendly settlement procedure, the Inter-American Commission, in accordance with Article 41(4) and (6) of its Rules of Procedure, decided to terminate its intervention in the friendly settlement procedure and continue to process the interstate communication. At the same time, bearing in mind the close connection between the considerations on admissibility and merits in the case, the IACHR, in keeping with Article 37(3) of its Rules of Procedure, decided to open the case, assign it number CI 01/06 (Interstate Case 01/06), and defer its treatment of admissibility until the debate and decision on the merits. Thus, in accordance with Article 38(1) of its Rules of Procedure, the IACHR requested the State of Nicaragua to present its additional observations on merits, and gave it two months to do so.

33. On September 7, 2006, the Inter-American Commission also decided to invite the two parties to a public hearing to address issues relating to merits in the case. The hearing was held on October 18, 2006, in the framework of Commission’s 126th Regular Session. (Copies of the minutes and audio recordings of this hearing were transmitted to both states parties on November 9, 2006). During the hearing, the State of Costa Rica requested the Commission to suspend the hearing on the grounds that the Commission was not competent to examine the instant case because the State of Nicaragua had not formally and officially recognized the competence of the IACHR to receive and examine communications in which a state party alleges that another state party has committed a violation of a human right set forth in the Convention. On that occasion, the President of the Commission informed both states parties that their arguments regarding the competence of the Commission in connection with this case would be analyzed in due course by the IACHR and requested that the hearing continue.

34. On October 19, 2006, the State of Nicaragua wrote to the Commission to confirm and submit documentation to show that on February 3, 2006, in a communication addressed to the Secretary General of the Organization of American States, it transmitted a note apprising him of the declaration concerning recognition by the State of Nicaragua of the competence of the Commission, and requesting him to transmit the contents of that declaration to the other states parties to the Convention and the members of the Organization of American States.[29] Said information was forwarded to the State of Costa Rica on October 23, 2006.

35. On October 20, 2006, the State of Costa Rica wrote to the Commission in order to furnish additional information connected with the Fifth Meeting of the Binational Commission in the framework of which the Vice Ministers of Costa Rica and Nicaragua resumed talks to strengthen ties of friendship, cooperation, and joint development on migration and other relevant issues.[30] Said information was forwarded to the State of Nicaragua on October 23, 2006.

36. On October 23, 2006, the Commission forwarded to the State of Costa Rica the documents that the State of Nicaragua presented to the Commission at the hearing held on October 18, 2006, which contained the written version of its arguments as well as a series of annexes and evidentiary material. That same day, the Commission transmitted to the State of Nicaragua the documents that the State of Costa Rica presented to the Commission at the hearing held on October 18, 2006, which contained the written version of its arguments as well as a series of annexes and evidentiary material.

37. On October 18, 2006, in the framework of the hearing, the State of Nicaragua had requested the Commission for an extension to present its observations on merits in the case. On October 23, 2006, the Commission wrote to both states parties to inform them that it had decided to grant a 15-day extension to the State of Nicaragua so that it might present its arguments on merits in the interstate case. That period started to run on the date that the period originally granted expired. Accordingly, the deadline for presentation of submissions on merits was put back until November 21, 2006.

38. On October 26, 2006, the Inter-American Commission wrote to the Secretary General of the Organization of American States to inquire if the State of Nicaragua deposited with the General Secretariat a declaration concerning recognition of the competence of the Commission to receive and examine communications in which a state party alleges that another state party has committed a violation of a human right set forth in the Convention. The Commission also asked the Secretary General to inform it if, in the event that it had received said declaration, the General Secretariat transmitted a copy of it to the member states in keeping with Article 45 of the American Convention on Human Rights. In response to this inquiry, on October 27, 2006, the Director of the Department of International Legal Affairs -which is under the immediate orders of the Secretary General and supervises the Office of International Law- wrote to the Inter-American Commission to inform it that "on February 6, 2006 the General Secretariat received a note, which is enclosed, in which the Government of Nicaragua informs that in a declaration of January 26, 2006, it added a third paragraph to Declaration 49 of January 15, 1991, concerning the American Convention on Human Rights, in which it recognized the competence of the Commission to receive and examine communications in which a state party alleges that another state party has committed a violation of a human right set forth in the Convention. Today, in accordance with Article 45 of the American Convention on Human Rights, a copy of that declaration will be transmitted to the member states of the Organization.”[31] On November 1, 2006, the Commission wrote to both parties in this case in order to convey to them the inquiry made to the General Secretariat as well as the reply to that inquiry. On that occasion, the Commission informed the States of Nicaragua and Costa Rica of its decision to defer treatment of this matter until the debate and decision on the merits of the case.

39. On October 26, 2006 the Commission received a note from the State of Costa Rica in which it reiterated its request that the IACHR declare itself incompetent to take up the interstate communication and expressed its categorical rejection of the competence of the Inter-American Commission to examine the communication presented by the State of Nicaragua against it on February 6, 2006.[32] The Commission forwarded this note to the State of Nicaragua on November 1.

40. On November 3, 2006, the State of Costa Rica requested the Commission for information on the progress of the instant case, in response to which the Commission wrote to both states on the same day to advise them that “on September 7, 2006 the Inter-American Commission, in accordance with Article 37(3) of its Rules of Procedure, decided to defer its treatment of admissibility until the debate and decision on merits. In that connection, pursuant to Article 38(1) of its Rules of Procedure, the Commission requested the State of Nicaragua to submit its observations on merits. The pertinent portions of those observations would be transmitted to the State of Costa Rica so that it might present its comments in accordance with the above-cited Article 38(1) of its Rules of Procedure”.

41. On November 6, the Commission received a note from the State of Nicaragua in which the latter enclosed the Official Minutes of the Fifth Meeting of the Costa Rica-Nicaragua Binational Commission and said that the minutes in question are neither evidence nor constitute additional information on the present interstate case.[33] The Commission conveyed this note to the State of Costa Rica on November 8.

42. On November 9, 2006, the Commission received a note from the State of Nicaragua in which it reiterated that it duly deposited its declaration with the General Secretariat of the Organization of American States in a timely manner and recalled that the State of Costa Rica in its initial observations on the instant interstate communication accepted that the State of Nicaragua brought said declaration to the attention of the General Secretariat of the OAS on February 3, 2006, and, therefore, in its opinion, by virtue of the principle of openness, there was no detriment to the State of Costa Rica.[34] This information was transmitted to the State of Costa Rica on November 10, 2006.

43. On November 21, 2006, the Commission received a note from the State of Nicaragua in which its presented its observations on merits in the case[35]. This note was forwarded on November 22 to the State of Costa Rica, which was granted two months to submit additional observations on merits in accordance with Article 38 (1) of the Rules of Procedure of the IACHR.

44. On January 19, 2007, the State of Costa Rica wrote to the Commission to request an extension of 15 days to present its observations on the Nicaraguan State’s arguments on merits.[36] That same day, the Commission notified both parties of its decision to grant the requested extension of 15 days to the State of Costa Rica, which extension would start to run on the date that the period originally granted to the Costa Rican State to presents its submissions on merits expired. Accordingly, the deadline for presentation of arguments on merits was put back until February 5, 2007.

45. On January 16, 2007, the representatives of the State of Nicaragua wrote to the Commission to request a hearing in the framework of the 127th Session of the IACHR to address “questions of admissibility, merits and other petitions” relating to the case.[37] In that respect, on January 29, 2007 the Commission informed the State of Nicaragua that, having given consideration to its request and bearing in mind the stage of the proceeding and the fact that the Commission had twice held hearings on this case, it decided that it was not appropriate on this occasion to hold the hearing requested. The Commission also asked the State of Nicaragua to send any new information or facts that it deemed relevant and were not included in the record of the case in reference.

46. On February 2, 2007 the State of Costa Rica wrote to the Commission to request that the IACHR declare, immediately and without delay, that it was not competent to take up the instant case; declare the communication presented by the State of Nicaragua to be obviously out of order and inadmissible; pronounce its opinion on the preliminary objections submitted by the Costa Rican State; express its position on the irregularities in the procedure; and clarify who, if any, were the victims in the petition.[38] On February 6, 2007 the Commission informed the State of Costa Rica that, as it had been notified on November 1, 2006, the IACHR decided to defer its treatment of this matter until the debate and decision on merits. That same day, February 6, the Commission transmitted the communication of the State of Costa Rica to the State of Nicaragua, together with its annexes, and also the reply that the Commission sent to the Costa Rican State.

47. On February 5, 2007, the State of Costa Rica presented to the Commission its observations on merits in the case,[39] which were transmitted to the State of Nicaragua through its Permanent Mission to the OAS on February 6, 2007. In that connection, February 7, 2007, the Commission received a note from the State of Nicaragua in which the representatives of the State of Nicaragua said that they did not consider themselves officially notified of the observations that the State of Costa Rica presented on the merits of the matter because the fax by which the Executive Secretariat transmitted said observations to the Nicaraguan State had reached the Ministry of Foreign Affairs in an incomplete state. For its part, on February 21, 2007, the Commission informed the State of Nicaragua that the communication of February 5, 2007, in which the State of Costa Rica presented its additional observations on the merits of the case, was transmitted to the Permanent Mission of the Republic of Nicaragua to the Organization of American States on February 6, 2007, and that, in accordance with the practice of the Inter-American Commission, transmission to the Mission amounts to notification of the State. The State of Nicaragua was also informed that the document was sent by courier to the Ministry of Foreign Affairs of Nicaragua on February 7 and newly transmitted in full by fax on February 8, 2007.

48. On February 28th, 2007 the Commission received a note[40] by which the State of Nicaragua presented its observations in relation to the merits position of the State of Costa Rica. This note was transferred to the State of Costa Rica on March 7th, 2007.

III. POSITIONS OF THE PARTIES

49. The interstate communication presented by the State of Nicaragua alleges that the “persons injured by the human rights violations are the following:

i. Natividad Canda Mairena, a Nicaraguan national, brutally mauled by two Rottweiler dogs, on November 10, 2005, at the entrance to the cemetery in Lima, Cartago, Costa Rica. […]
ii. José Ariel Urbina Silva (sic),[41] murdered in Guácima, Alajuela, Costa Rica, on December 4, 2005.
iii. José Antonio Martínez Urbina, grievously injured in the same incident in which Urbina Silva (sic) was murdered; admitted to the Men’s Surgical Ward of Mexico Hospital, San José, Costa Rica.
iv. Francisco Angulo García, grievously injured in the same incident in which Urbina Silva (sic) was murdered; admitted to the Men’s Surgical Ward of Alajuela Hospital, San José, Costa Rica.
v. Rito Antonio Obando, who sustained injuries by stoning in the same incident in which Urbina Silva (sic) was murdered.
vi. Elder Angulo García, who sustained injuries by stoning in the same incident in which Urbina Silva (sic) was murdered.
vii. The Nicaraguan migrant population in a vulnerable situation in Costa Rica.”[42]

50. The Commission notes that the interstate communication presented by the State of Nicaragua refers to three separate situations, distinctions for which are made in the descriptions of the positions of the parties, as follows:

i. The particular situation of Mr. Leopoldo Natividad Canda Mairena.
ii. The particular situation of Messrs. José Ariel Silva Urbina, José Antonio Martínez Urbina, Francisco Angulo García, Rito Antonio Obando, and Elder Angulo García.
iii. The situation of the Nicaraguan migrant population in a vulnerable situation in Costa Rica.

A. Position of the State of Nicaragua[43]

Position of the State of Nicaragua on the case of Mr. Leopoldo Natividad Canda Mairena

51. The State of Nicaragua alleges in its interstate communication that on November 10, 2005, Mr. Leopoldo Natividad Canda Mairena had died, “brutally mauled, in long and public agony, by two Rottweiler dogs in the workshop owned by Mr. Fernando Zúñiga located at the entrance to the cemetery in Lima, Cartago, Costa Rica”[44]. The State of Nicaragua alleges that the incident “lasted approximately two hours and was witnessed by the owner of the workshop and the two dogs, Mr. Fernando Zúñiga Mora; the security guard, Luis Hernández; the head of the security company, Hugo Ceciliano Rodríguez; armed policemen, firefighters, and curious onlookers.” The interstate communication also mentions that Mr. Canda Mairena “bled to death shortly afterwards in Max Peralta Hospital, with some 200 wounds in which bones were exposed, which caused his cruel and inhuman demise.” The State of Nicaragua attaches, inter alia, video recordings of the incident, the forensic medical report issued on December 5, 2005, by the Forensic Pathology Section of the Forensic Medicine Department of the Judicial Investigation Agency of Nicaragua (OIJ), as well as photographs taken at the autopsy.

52. The Nicaraguan State adds in its interstate communication that the policemen who witnessed the incident "simply acted as bystanders and, worse yet, if proven, prevented, according to an eyewitness, the intervention of third parties to aid the victim […]. Testimonies given to the press and a video recording of the events, which was repeatedly broadcast in both Nicaragua and Costa Rica, suggest that the armed policeman had the opportunity to rescue Canda and even to shoot the dogs, since the animals withdrew to a sufficient distance to enable them to do so without endangering the victim of the attack.” The interstate communication presented by the State of Nicaragua also cites a Report of the Judicial Investigation Agency, according to which the death of Mr. Canda Mairena “could have been averted if the policeman who were at the emergency had seized at least two opportunities that arose before the firefighters acted using a fire hose.”[45] The State of Nicaragua alleges that, in spite of the foregoing, only two of the eight policemen have been prosecuted in connection with this case.

53. The State of Nicaragua argues that “the merely passive presence of armed police, as the authority of the State of Costa Rica at the incident, the delay of the OIJ in reporting its findings on the matter,[46] the public statements of government authorities playing down the incident, the failure to press charges, and the absence of a proceeding before a competent tribunal clearly show that the rules of due process are being violated and, in particular, that there has been a delay of justice in a case which, given its dimensions and complexity, warrants rapid responses and effective remedies from State of Costa Rica.”[47] Therefore, the State of Nicaragua alleges violation by the Costa Rican State of Articles 8 and 25 of the American Convention (Judicial Protection), due to the fact that the “OIJ allowed more than 70 days to pass before it presented the requisite report on the supposed investigations that it has carried out as a result of the human rights violations in which Mr. Natividad Canda Mairena lost his life. [It further argues that] the inexplicable delay in presenting the report and the additional six months granted to the Office of the Prosecutor to formally press criminal charges against those responsible constitute a delay of justice.”[48]

54. The State of Nicaragua also claims that Mr. Natividad Canda Mairena has been the victim of the discrimination to which Nicaraguan migrants who reside in Costa Rica are subjected. To show that the persons who witnessed the incident knew that Mr. Canda Mairena was Nicaraguan, the State cites a press clipping from Nuevo Diario newspaper of February 21, 2006, in which Mrs. Cipriano Mercedes Canda Mairena, says that her brother, Natividad, was the victim of an act of revenge by the security guard at Mr. Zúñiga’s workshop, Guillermo Hernández, who is the father-in-law of another sibling who resides in Costa Rica, Regino Antonio Canda Mairena.”[49]

55. As an annex to the interstate communication, the State of Nicaragua provided a video to show what happened to Mr. Canda Mairena and the alleged passive reaction of the policemen. The video contains recordings of a series of television news programs broadcast in Nicaragua and Costa Rica. The selected recordings show how different television media covered the news of Mr. Natividad Canda Mairena’s death, showing images of the attack, as well as opinions of people in both countries expressed through telephone calls made by viewers and in live interviews.

56. To demonstrate that the alleged discrimination occurred both at the time of the incident and during the processing of the case by the Costa Rican judicial authorities, the State of Nicaragua mentioned by way of an example a similar case that occurred on January 25, 2006, in which a Costa Rican minor aged seven (Jorshan Brown) was attacked by Rottweiler dogs in Puerto Limón, Costa Rica. In this incident, according to the State of Nicaragua, "the dog involved was promptly destroyed.” Furthermore, the State of Nicaragua mentions that in this case the medical report was produced less than 72 hours after the attack, whereas in the case of Mr. Natividad Canda Mairena there was a delay of almost 2 months before the forensics report was included in the case file. Accordingly, the State of Nicaragua alleges violation by the State of Costa Rica of Article 24 of the American Convention (Right to equal protection), and states as its reasoning that “despite the seriousness of the incident, the treatment it received was different to that given, for example, to the case of the boy Jorshan Brown.”[50]

57. Another example that purportedly demonstrates the discrimination of which Mr. Canda Mairena was allegedly a victim, according to the State of Nicaragua, is the fact that "the police of the State of Costa Rica acted differently in the early hours of October 26, 2006, when the Costa Rican citizen, Cristian Rodríguez Nazareno, attempted to enter the workshop owned by Mr. Fernando Zúñiga, at the entrance to the cemetery in La Lima, Cartago, in circumstances similar to those of the Canda Mairena case; on this occasion, they shot at the Rottweiler dogs, killing one of them, and, so, saved his life, which they could have done in the case of the aforementioned Mr. Canda, who unfortunately died as a result of the attack by those dogs because the State police patently acted with passive negligence.”[51]

58. In its arguments on merits in the case, the State of Nicaragua drew attention to the fact that in this case "approximately one year has passed and the Office of the Prosecutor has only indicted two policeman, leaving uncharged six others who also committed offences by omission because they merely stood by as witnesses to the horrendous incident in which Natividad Canda was attacked by two Rottweiler dogs, to the satisfaction of the security guard and of the owner of the workshop and the dogs.”[52] Based on the foregoing, in its interstate communication the State of Nicaragua contends that “in the particular circumstances of this case […] there has been a delay of justice.”[53]

Position of the State of Nicaragua on the case of Messrs. José Ariel Silva Urbina, José Antonio Martínez Urbina, Francisco Angulo García, Rito Antonio Obando and Elder Angulo García

59. As regards Messrs. José Ariel Silva Urbina, José Antonio Martínez Urbina, Francisco Angulo García, Rito Antonio Obando and Elder Angulo García, all of whom are Nicaraguan citizens originating from the Department of Boaco, the State of Nicaragua alleges that on December 4, 2005, they were in a bar called Los Espejos, located in Guácima, Alajuela, in Costa Rica. According to the petition, there were some 25 to 30 other persons, presumably Costa Ricans, also in the bar. In its submissions, the State of Nicaragua described what happened in the bar as follows: "At approximately between 11:00 and 12:00 at night, without reason a group of Costa Ricans launched a verbal attack with xenophobic remarks against the six Nicaraguans who were in the place, and began to insult them with coarse and offensive comments that caused feelings to run high because at least a sizeable portion of the persons present began to hurl abuse and encouraged the insults started by the group in question. For that reason, the six Nicaraguans decided to vacate the bar and leave the area. The first to leave the bar was José Ariel Urbina Silva (sic), a situation of which the group that had started the insults took advantage to verbally abuse the young Nicaraguan, who responded verbally. The aggressors in the bar moved from words to stones and for that reason the Nicaraguans opted to withdraw. Their assailants pursued them and two individuals caught up with them; one of them lunged at José Ariel Urbina Silva (sic) and, subsequently, caught hold of José Antonio Martínez Urbina. Another individual, holding a knife, attempted to attack Elder José Angulo García but his brother, Francisco Angulo García intervened in his defense and was injured by this attacker. Even though they had been assaulted with a knife, they were stoned by the crowd that surrounded them, without anyone coming to their defense or aid.”[54]

60. Later, in the framework of the public hearing held on July 18 in Guatemala, the State of Nicaragua furnished a video recording that contained a behind-the-scenes account of the events that occurred outside Los Espejos bar in Guácima, Alajuela after the Nicaraguan citizens decided to leave, presumably in reaction to the insults and verbal abuse prompted by their nationality. The video includes an interview with one of the victims, Mr. José Antonio Martínez, who describes how he was attacked in the street and confirms the version of the events that the State of Nicaragua presented to the Commission.

61. According to the interstate communication presented by the State of Nicaragua, as a consequence of the attack, Mr. José Ariel Silva Urbina died; Mr. José Antonio Martínez Urbina was admitted to hospital and treated for different injuries including some caused by a cutting and stabbing weapon; Mr. Francisco Angulo García was admitted to hospital and treated for multiple wounds caused by a cutting and stabbing weapon; while Messrs. Rito Antonio Obando and Elder Angulo García sustained minor injuries caused by impact of stones. The State of Nicaragua also mentions in the interstate communication that Mr. Francisco Angulo García was admitted to the Psychiatric Hospital because of problems assimilating what happened.

62. As to the reasons that allegedly prompted this incident, the State of Nicaragua argues that it may be concluded from the testimonies of the four surviving victims that the incident that occurred on December 4, 2005, "constitutes a xenophobic attack inasmuch as it arose from the insults and comments concerning nationality, an incident that cannot be considered an individual attack given the clear participation of 25 to 30 persons, presumably Costa Ricans, who were at the scene of the incident." The Nicaraguan State adds that the assailants were aware of the nationality of the victims, who mentioned in their testimonies that some of the persons at the scene knew them. Accordingly, the State of Nicaragua categorizes what happened as hate crimes.

63. The State of Nicaragua alleges violation on the part of the Costa Rican state of Articles 8 and 25 of the American Convention as a consequence of the fact that the "inexplicable delay" in the presentation of the report of the judicial investigation agency and the granting of an additional six months to the Office of the Prosecutor to formally charge those responsible constitute a delay of justice.[55] Furthermore, the State of Costa Rica claims that in addition to a delay of justice there have also been procedural faults, in as much as the person allegedly responsible for the death of José Ariel Silva Urbina has reportedly been released as a result of a precautionary measure.

Position of the State of Nicaragua on the Nicaraguan migrant population in a vulnerable situation in Costa Rica

64. As regards the Nicaraguan migrant population in Costa Rica, the State of Nicaragua argues that "the circumstances that have surrounded the case of Natividad Canda, as well as the murder of José Ariel Urbina and the attacks on Francisco Angulo García, Elder José Angulo García, José Antonio Martínez Urbina, Rito Obando and other companions, are merely outward symptoms of a much deeper underlying situation rooted in sentiments of xenophobia, intolerance, and rejection that reign in some sectors in Costa Rica, despite the solidarity and generosity that prevails in the vast majority of the noble Costa Rican people.”[56]

65. In that connection, the State of Nicaragua alleges that the deaths of Messrs. Natividad Canda Mairena and José Ariel Silva Urbina are consequences of the prevailing absence of guarantees in Costa Rica arising from visible attitudes of xenophobia and discrimination.[57] It further alleges that these acts "generated a situation that demonstrates that the phenomenon goes further than might seem at first sight, since opinions and actions have emerged that demonstrate deep-rooted discrimination and xenophobia in Costa Rica.”[58]. The Nicaraguan State adds that the "Canda case and, in particular, the Urbina Silva (sic) case, are two incidents of human rights violations that, while certainly very important, are nonetheless symptomatic of the climate of xenophobia that has existed and been accepted in Costa Rica for many years, as well as of the failure of the Costa Rican authorities to take steps against it. Accordingly, even had the Canda case not occurred, it is the treatment of this case and of a subsequent hate crime that resulted from it and from the climate of xenophobia that Costa Rica has failed to tackle properly, that constitutes a violation of human rights.”[59]

66. The State of Nicaragua adds that "if the judicial authorities of Costa Rica had acted with urgency in the Canda case, which was rife with discrimination, xenophobia, and impunity, the Guácima lynching would surely have been avoided as would any other acts that may come about as a result of the impunity of those responsible for injuries originated by xenophobia and discrimination. The danger of not taking exemplary measures to counter the climate of xenophobia is that more hate crimes could be committed against Nicaraguans.”[60] The Nicaraguan State also says that "the failure to adopt effective measures to ensure prompt justice and prevent impunity stimulates, at least indirectly, greater discrimination on the basis of nationality, which encourages intolerant sectors to continue their campaign of xenophobia and discrimination, exposing the migrant population to greater peril and risk.”[61]

67. According to the State of Nicaragua, “the inaction of the justice system and of the State itself in the investigation, prosecution, and punishment of those responsible in the horrific death of Natividad Canda Mairena, which occurred in a context of xenophobia that prevails in certain sectors in Costa Rica […] intensified the climate of intolerance and discrimination in certain segments of Costa Rican society, which led to an atmosphere of “permissiveness” toward any attack on a Nicaraguan.”[62]

68. The State of Nicaragua argues that the State of Costa Rica failed its obligation to ensure rights contained in Article 1(1) of the American Convention (Obligation to respect rights), manifested by the, at least remiss presence of armed police officers, who failed to protect the rights to life, humane treatment and security. The armed police officers -agents of the Costa Rican state- witnessed the horrific killing of Mr. Canda Mairena and did not shoot the dogs; in other words, the lives of the latter were given priority over the life of a human being. The failure to adopt effective measures to ensure that justice is promptly served and to avoid impunity stimulates, at least indirectly, greater discrimination for reasons of nationality, which encourages intolerant sectors to continue their campaign of xenophobia and discrimination, exposing the migrant population to greater dangers.”[63]

69. To demonstrate that the cases of Messrs. Canda Mairena and Silva Urbina are not isolated incidents, the State of Nicaragua, in a note of June 5, 2006, drew the Commission's attention to another case that, according to its arguments, is an example of the delay of justice and impunity that exists in Costa Rica. The case in question concerns Ms. María José González Quintanilla, a Nicaraguan woman who, according to the enclosed press clipping, reportedly brought charges of sexual abuse against the Administrator of Calle Real Prison in Liberia, Costa Rica, where Ms. González Quintanilla was an inmate and worked as an assistant in the kitchen. The State of Nicaragua says that this trial is being held without due process guarantees.[64] Furthermore, in its brief on merits, the Nicaraguan State makes reference to another case which it points to as an example of discrimination and xenophobia. The case is that of Mr. Roger López González, “who, on September 25 of the year in progress, presented himself at the Consulate General of Nicaragua, bearing Costa Rican Resident’s Card 270-116248-51245, and, in a clear state of alarm reported that he had been the victim of attacks and death threats from a Costa Rican citizen in an incident that occurred in La Aurora, Heredia, Costa Rica, Mr. López Rodríguez claimed, had been reported to the offices of the OIJ, according to record 06-001969-0059-PE of the Office of the Assistant Prosecutor for Heredia. In light of the obvious danger and insecurity which Mr. López said he was in at that time, he said that he had decided to put up the property he owned for sale due to the fact that he could not continue to live in Costa Rica because of the constant threats, not only to himself, but also to his family, whom he had had to move to Nicaragua for safety. Mr López has since left Costa Rica after 17 years of legal residence.”[65]

70. According to the State of Nicaragua, “in certain sectors there has arisen a marked climate of verbal violence, intolerance, and xenophobia as is apparent from publications produced by groups interested in stirring up hate and even violence against Nicaraguans in Costa Rica.”[66]. To shed light on the situation of supposed xenophobia that is allegedly encouraged in Costa Rica, the State of Nicaragua mentions in its interstate communication that on the days following the death of Mr. Canda Mairena a number of “jokes” and xenophobic displays appeared on different Internet web sites. By way of an example it mentions an electronic mail message dated November 11, 2005, which says, "Due to the recent events of bravery and heroism that showed that the dog is the Costa Rican's best friend (today more than ever), all of the below signed wish to present to the legislative assembly a bill to change the yiguirro [the national bird of Costa Rica] thanks to the heroic dogs Oso and Hunter “Rottweller” (sic), who took the initiative, cast fear aside, and redefined Costa Rican culture and valor against the invasion of the neighbors to the north. We propose that each Costa Rican family (not crossbred) should have two dogs. That the nicas should be vaccinated against rabies (for the sake of the dogs’ health). That the statute of Juan Santamaría be replaced with one of the Rottweilers that are the new national heroes, that a monument be erected in the Park of la Merced and that a demonstration be held every weekend led by these two puppies and anyone else who can come to La Carpio. Be a Costa Rican, take courage and pass on this message.”[67] The interstate communication presented by Nicaragua cited several other electronic mail messages in this vein. Furthermore, among the documents presented in the interstate communication, the Nicaraguan State includes a photograph reportedly circulated in Costa Rica, which shows a Rottweiler next to the national flag of Costa Rica, with the following legend: Hail to Our National Hero. O, noble dog, your Rottweiler breed, is an expression of love for us, as long as your eyes are on a nica, you will always be our national hero.”

71. In two videos provided by the State of Nicaragua (one presented with the interstate communication, and the other at the hearing of July 18 in Guatemala) there are also references to xenophobic electronic mail messages and jokes against Nicaraguans inspired by the attack on Mr. Canda Mairena. Through the images and the various interviews contained in the videos, the State of Nicaragua describes the feeling of vulnerability of Nicaraguan citizens in Costa Rica, the discrimination they experience on a daily basis, and, in particular, their employment opportunities and working conditions.

72. The State of Nicaragua has also attached to its interstate communication a comic strip published in Prensa Libre newspaper of November 23, 2005, which says: "Nica congressmen reportedly coming to talk about dog attacks. Set the dogs on them and don't let them go!”[68] in similar fashion, according to the Nicaraguan press,[69] jokes such as the following allegedly circulated in Costa Rica: “A Rottweiler came down from heaven and ate a nica. Wouldn’t it be nice if 600,000 came down to clean up Costa Rica?;” “Why did they turn the hoses on the dogs? To wash away the bad taste.” The State of Nicaragua also reports that leaflets with a photograph of the dogs were circulated for the presidential elections, as were fake bank bills with a photograph image of the dogs.

73. Nicaragua has also presented a series of documents designed to show that the generalized perception of the Nicaraguan migrant population in Costa Rica is discriminatory. In this connection, the State of Nicaragua presented the findings of a poll conducted by the Institute of Social Studies on Population (IDESPO) of the Universidad Nacional de Costa Rica. The poll was reportedly carried out by telephone, covered 600 Costa Ricans aged 18 or over from all over the country between August 3 and 10, 2005, and had a margin of error of 4% and a level of significance of 95%. According to the results of the poll, 88% of Costa Ricans admit that Nicaraguan immigrants suffer discrimination.[70]

74. The State of Nicaragua also drew the attention of the Commission to the results of a nationwide telephone poll conducted by the Institute of Social Studies on Population of the Faculty of Social Sciences of the Universidad Nacional in November, 2003,[71] to examine the perceptions of Costa Ricans with respect to Nicaraguan immigration. It was concluded from the survey that Costa Ricans perceive Nicaraguans as hard-working people from humble backgrounds, and the vast majority rated their work as important; however, there was also a large proportion of the Costa Ricans polled (33%) who do not regard Nicaraguan labor as necessary because it is harmful to, and means fewer jobs, for Costa Rican workers. According to the poll, Costa Ricans perceive Nicaraguans as ungrateful people with bad habits. According to this report, only half of the Costa Ricans polled consider that Nicaraguans have equal rights as persons, and they large majority (74%) are degrees that the Nicaraguan population suffers discrimination. Furthermore, according to the poll one of the aspects that most concerns Costa Ricans is their impact on social security in the country, in particular with respect to education and health. Thus, 79% of those polled consider that the Nicaraguan population poses a risk to the country’s social security system.

75. The State of Nicaragua has also presented to the Commission a report of June 2006 likewise prepared by the Institute of Social Studies on Population of the Faculty of Social Sciences of the Universidad Nacional.[72] According to this report, which is based on interviews conducted in March 2006, 77% of the persons thought that there was "much" discrimination against immigrants of Nicaraguan origin in Costa Rica, while 71% considered that there was little or no discrimination against persons of Colombian origin. According to this report, Costa Ricans do not consider that discrimination against immigrants targets all immigrant groups equally. When the Costa Rican population was consulted about what rights immigrants should enjoy, more of those interviewed were in favor of Colombians, rather than Nicaraguans, having access and exercising the rights to public education (83.0% v. 81.9%), public health care services (73.3% v. 68.7%), bank loans (66.3% v. 62%), obtaining nationality (65.6% v. 58.1%) organizing into groups or associations to protect their rights (57.3% v. 51.0%) and bringing their families to live with them (48.5% v. 37.5%).

76. The State of Nicaragua also offers as evidence the book “Otros Amenazantes. Los nicaragüenses y la formación de identidades nacionales in Costa Rica”, by the Costa Rican sociologist Carlos Sandoval García.[73] The book constitutes a study of how the media have presented the Nicaraguan community as a "problem" and a "threat" and examines how this media representation has to do with the traditional creation of the Nicaraguan as the “other” in the Costa Rican imagery. Accordingly, the book explores how the historical representations of Costa Rican nationality over recent centuries have underscored the "unique" nature of Costa Rica and also identify it with certain ethnic attributes, such as being inhabited by the most "white” population in Central America, which also speaks the "best" Spanish in the region, while historically Nicaraguans have been characterized for their "different" Spanish and dark skin. The book offers numerous examples of how the Nicaraguan population in Costa Rica is frequently "racialized" and criminalized, and analyzes different ways in which Nicaraguan women have been associated with prostitution. It also analyzes how jokes play a key role in the translation of “racialized” discourse to conventional wisdom and daily life. The author mentions that immigrants are perceived in Costa Rica as threats to the national identity, as the persons that commit most crimes, and as being responsible for exhausting the resources of the healthcare system. Moreover, according to this book, the health authorities in Costa Rica attribute certain diseases exclusively to the presence of "foreigners" and not to the health conditions that exist in the country.

77. The State of Nicaragua also bases its arguments on a document prepared by José Luis Rocha Gómez, a consultant for the Latin American and Caribbean Demographic Center (CELADE), published by the United Nations,[74] which analyzes the attitudes toward Nicaraguan migrants and migration policies of officials in positions of influence in both Costa Rica and Nicaragua, and offers recommendations on migration policy designed to reduce the adverse effects and enhance the positive consequences of migration. The document offers an analysis according to which the perception of government officials in Nicaragua is that as the country of origin they are the main losers because it causes a major drain of human capital, increasing numbers of families are broken up, and the human rights of Nicaraguans abroad are not observed. On the other hand, the perception of the Costa Rican authorities, according to this study, is that migration has a negative impact on the labor market, on social and immigration services, and on national security. According to this document, while for Nicaraguans the problem of irregular immigrants is the fault of restrictive policies in Costa Rica, for Costa Ricans immigrant irregularity stems from the desire to evade controls. Furthermore, the study finds that while agencies in Costa Rica consider that Nicaragua abandons its nationals abroad, the Nicaraguan authorities take satisfaction from their progress.

78. The State of Nicaragua adds that the perception of Costa Rican citizens is that the violence and lack of security that exist in their country are caused by the Nicaraguans who live there. However, the Nicaraguan State argues that it is not true that Nicaraguan migrants are responsible for the majority of crime in Costa Rica and, to support this argument, cites in its interstate communication the First National Human Development Report (NHDR) prepared by the United Nations Development Programme (UNDP) in 2005, according to which, the number of foreigners serving prison sentences totals less than 10% of the prison population, and Nicaraguans account for less than 6% of convicted prisoners.[75]

79. In addition, the State of Nicaragua says that the press in Costa Rica has attributed to the Nicaraguan migrant population partial responsibility for the situation of the Social Security Fund, contributing to a climate of animosity toward migrants, and it adds, in relation to the Social Security health care services, that a practice exists in Costa Rica where, if a person is suspected of being an illegal, rather than receiving assistance, they are reported to the Office of Migration and Nationality, to be subjected to the full penalty of the law.[76]

80. The Nicaraguan State also makes reference to a series of studies by different agencies from which it might be concluded that there is generalized discrimination in Costa Rica against the Nicaraguan migrant population. In this respect, the State of Nicaragua cites in its interstate communication an associated press report of August 22, 2005, which describes the conclusions of a joint study released by the Paniamor Foundation and Save the Children. According to the press report, the aforementioned organizations are concerned “at the discrimination against migrant children, especially of Nicaraguan origin, in education and health as well as in terms of participation. They are excluded from the exercise of those rights. […] In order to enter the education system they must have certificates of studies from Nicaragua and approval from the Ministry of Foreign Affairs, which they must present to the Ministry of Education.”[77]

81. The State of Nicaragua also attaches to its interstate communication the concluding observations of the Committee on the Rights of the Child on the third periodic report of Costa Rica submitted under Article 44 of the Convention on the Rights of the Child. On that occasion, the Committee on the Rights of the Child recommended that the State of Costa Rica give particular attention to children belonging to vulnerable groups, i.e. indigenous populations, migrants, and those living in rural areas, and that funding be identified for programmes aiming at alleviating their disadvantage. Furthermore, the Committee mentioned its concern “at the limited access of indigenous children, migrant children and those living in rural areas, to basic education and health services, and at their low standard of living. The Committee also regretted the absence of information in the State party’s report on the implementation of its previous recommendation regarding the protection of children of migrant families in irregular situations against discrimination. […] The Committee is concerned at information received whereby migrant children are still neither eligible for scholarships, nor entitled to take part in students’ councils.”[78]

82. The Nicaraguan State also presents a report prepared by Ms. Adilia Eva Solís, which was delivered to the Commission at a hearing held on March 4, 2005.[79] The report describes the difficulties encountered in Costa Rica by undocumented migrants, such as the requirements set by the Educational Development Directorates, which prevent the enrollment of children and adolescents if they or their parents do not have a temporary or permanent residence permit, in addition to the overexploitation of undocumented migrants in the workplace. Furthermore, according to the report, even though by disposition of the Costa Rican Social Security Fund medical services are to be provided to anyone who needs them, regardless of their migratory status, staff of the Costa Rican Social Security Fund report to the General Directorate of Immigration persons who go for a medical consultation and are found not to have a legal residence permit. The report also recognizes the efforts of the Costa Rican State to ensure the basic rights of migrants, such as the creation of the Office of the Ombudsman and the design of public healthcare policies for the migrant population. The aforesaid report also notes that the Constitutional Court has disposed of a large number of actions for amparo against the requirement that boys and girls have a residence permit in order to be able to enroll in school, and has admitted such actions, ruling that such a requirement violates the right of children to education.

83. The State of Nicaragua also attached to its observations on merits in this case a report that the Rapporteurship on Migrant Workers and their Families of the IACHR published based on its visits to Costa Rica in 2001 and 2002. In its presentation, the State of Nicaragua cites this report and makes particular reference to the situation of discrimination against migrant workers, especially Nicaraguans, arising from practices in the general population. The State asserts based on the report the existence of discriminatory attitudes that consist of mistreatment by State officials; harassment, suspicion, and stigmatization by the local population; and abuse and discrimination in the labor market, in particular as regards wages and benefits. The State of Nicaragua concurs with the final observations and recommendations of the Rapporteurship, which mention that in Costa Rica situations exist that violate the human rights of migrant workers in different spheres, and note the existence of “a certain degree of discrimination against persons of Nicaraguan origin.” The Rapporteur also called for educational campaigns to be organized to inculcate tolerance and a sense of the value of immigrants’ contributions to Costa Rican society, as well as for steps to be taken to impede labor-related abuses. It also exhorted Costa Rica to carry out international commitments on refugees and torture victims. Furthermore, it urged Costa Rica to revise the immigration legislation to ensure that it not discriminate among migrant workers based on their social status. It also called on the Costa Rican government to apply the corresponding procedure to each person, based on the distinctions drawn in the national legislation among rejection, deportation, and expulsion. In turn it urged the State of Costa Rica to ensure the right to due process in each immigration proceeding, inform migrant workers about the legislation in place on these matters, and guarantee consular assistance. Finally, the Rapporteur urged the State of Costa Rica “to head up a campaign to build a cohesive society in which the human rights of all inhabitants of Costa Rica, including migrant workers, are respected and guaranteed.”

84. The Report of the Rapporteurship that the Nicaraguan State cites as a basis for its arguments, also recognizes the fundamental importance of highly positive practices adopted by the State of Costa Rica that benefit migrant workers and their families, such as the 1998 immigration amnesty and the agreements the Government of Costa Rica signed with Nicaragua and which are aimed not only at regularizing migratory flows, but also seek mechanisms to address the vulnerability of these persons, as well making available a series of services and benefits to migrant workers and their families, irrespective of their immigration status. The Report of the Rapporteurship also highlighted the importance of the decisions in the Constitutional Chamber of the Supreme Court of Justice for the effective protection of the rights of migrant workers and their families in Costa Rica.

85. As confirmation that the above-alleged discrimination is generalized and affects the entire migrant population in Costa Rica, the State of Nicaragua mentions that the Law on Migration and Nationality (Law 8487 published on December 12, 2005, and entered into force on August 12, 2006) violates rights recognized in the Convention and other international human rights treaties. Consequently, the Nicaraguan State argues that the State of Costa Rica, whether by act or by omission, is an accessory to the acts of discrimination and xenophobia caused by the entry into force of the aforementioned law.[80]

86. With respect to the contents of the law in question, the State of Nicaragua notes critically, inter alia, that: a) the law permits the arrest or deportation of any foreigner who is unable to show that they are in Costa Rica legally when required to do so by the Immigration Police; b) a foreigner’s residence permit can be ordered cancelled if they have entered the country evading immigration controls; c) the law punishes any persons or companies that employ illegal immigrants as workers or provide accommodation to illegal immigrants; d) it makes distinctions based on economic status or cultural condition; e) it widens the area in which the immigration authorities may enforce the rule of “administrative refusal of entry,” which would permit operations to be conducted in predominantly agricultural areas with a massive presence of Nicaraguan migrants; f) it violates due process guarantees because it does not provide any recourse against certain decisions of the immigration authorities; g) immigration policy is considered a matter of public security; h) the law does not establish the maximum lengths of time that foreigners may be held in custody under the control of the Immigration Police.

87. As a basis for these arguments, the State presents to the Commission several reports and opinions expressed by international agencies and organizations on the Nicaraguan Migration Law. Furthermore, the Nicaraguan State cites in its interstate communication remarks by the presidential candidates during their election campaigns criticizing the law. In that regard, the State of Nicaragua quotes campaign statements made by the current President of the Republic, Óscar Rafael de Jesús Arias Sánchez, who reportedly described the law as “draconian and Gestapo-like.”[81] In later briefs, the Nicaraguan State says that the declarations of the President of the Republic should be taken as basic proof that xenophobia and discrimination exist in Costa Rica.

88. Finally, the State of Nicaragua argues that, coupled with the comments of President Arias, the fact that the State of Costa Rica has mentioned in its reply to the interstate communication that it does not overlook the fact that both countries face enormous challenges to prevent the rise of xenophobia between the two nations constitutes an admission by the Costa Rican State of the existence of xenophobia.[82]

B. Position of the State of Costa Rica[83]

Position of the State of Costa Rica on the case of Mr. Leopoldo Natividad Canda Mairena

89. In its reply to the interstate communication of Nicaragua, the State of Costa Rica did not present arguments on the events in connection with Mr. Natividad Canda Mairena, and merely stated that the matter is being examined by the Judicial Branch in Costa Rica. The State of Costa Rica mentioned that the investigation of the case remains open and that evidence has been collected, together with witness testimony, expert opinions, and reports from the agencies that took part in the rescue, among other measures. The Costa Rican State also mentioned that the family of Mr. Natividad Canda Mairena filed an individual criminal complaint. In this respect, the State of Costa Rica reiterated its public expressions of regret at what happened to Mr. Canda Mairena, saying that “the circumstances of this tragedy will be investigated thoroughly in accordance with the procedures in force, and those responsible will receive the punishments prescribed by law.”[84]

90. In the brief containing its arguments on merits,[85] the State of Costa Rica imentioned that the case of the “death of Mr. Canda Mairena, is at an intermediate phase of the criminal proceeding in which two persons have been formally indicted.” The State of Costa Rica added in connection with the death of Mr. Natividad Canda Mairena that two persons had been charged with the crime of unintentional homicide by culpable omission, and that the preliminary hearing has been set for March 21, 2007, which showed that the authorities have continued to proceed diligently in the case. According to the State, based on the results of said hearing, the judge overseeing the intermediate stage would determine if the matter should go to trial.

91. As an annex to its observations on merits in the case, the Costa Rican State presented to the IACHR a copy of the indictment and request for the opening of trial proceedings that the Assistant Prosecutor for Cartago filed against two officers of the public security forces for the crime of “unintentional homicide by omission” of which Mr. Leopoldo Natividad Canda Mairena was allegedly the victim. The alleged responsibility of the officials is based on the fact that they had the obligation and clear possibility to fire on the dogs, bearing in mind their position with respect to the animals, the visibility at the time, and other considerations.

92. According to the State of Costa Rica, “in none of the cases questioned by the State of Nicaragua has there been a delay of justice, violation of due process guarantees, or, much less, impunity, “apparent” or otherwise […] and, furthermore, should any doubt exist, in spite of the explanations provided, the parties concerned have recourse to the Constitutional Court.”[86] In that connection, the Costa Rican State invokes the objection alleging failure to exhaust domestic remedies in the instant case.

93. The State of Costa Rica confirmed that electronic mail and mobile telephone text messages circulated which alluded to the death of Mr. Natividad Canda Mairena, and through a press release issued by the Ministry of Foreign Affairs and Worship,[87] it expressed its profound disapproval for the contents of said messages that sought to make fun of an exceptionally distressing tragedy. The State of Costa Rica underscored in the aforesaid press release that "there are many day-to-day examples of harmonious and respectful coexistence between Costa Ricans and Nicaraguans. As far as human rights are concerned, the hospitals of Costa Rica do not inquire about nationality and provide, just as other institutions do, generous and humanitarian assistance.”

Position of the State of Costa Rica on the case of Messrs. José Ariel Silva Urbina, José Antonio Martínez Urbina, Francisco Angulo García, Rito Antonio Obando and Elder Angulo García

94. In its reply to the interstate communication of Nicaragua, the State of Costa Rica mentioned that the matters concerning Mr. José Ariel Silva Urbina and other persons injured in the same incident are being examined by the Judicial Branch in Costa Rica. In addition, the State of Costa Rica reiterated its public expressions of regret at the events that befell Mr. José Ariel Silva Urbina, saying that “the circumstances of this tragedy will be investigated thoroughly in accordance with the procedures in force, and those responsible will receive the punishments prescribed by law.”[88]

95. The State of Costa Rica merely mentioned that “the alleged culprit of this crime was identified two days after the acts that gave rise to the instant case were committed […], however, since the liberty of a person is at stake, Costa Rican law provides that the concurrence of a number of circumstances is required to allow a preventive incarceration order” […]. In the instant case it was not determined that the person named as the suspect was a flight risk or intended not to submit to the proceedings, since he had a stable job and family life. Therefore, there was no need, according to the appraisal of the circumstances made by the competent judge, to deprive him of liberty on a preventive basis.”[89] Furthermore, the Costa Rican State explained that "the events of December 4, 2005, were categorized on December 6 of that same year, that is, two days after the incident, as one count of unintentional homicide and two counts of attempted homicide, in accordance with the classifications contained in the Costa Rican criminal code […] and not three months afterwards.”[90]

96. In the brief containing its arguments on merits,[91] the State of Costa Rica informed the Commission that the case of "the death of Mr. Urbina Silva (sic), has been given sufficient forward impetus by the authorities and that corresponding interest on the part of the victims and the witnesses has been lacking. However, according to information provided by the Office of the Prosecutor General, thanks to the latest steps taken to find all of the witnesses in the case of the death of Mr. José Ariel Silva Urbina, five eyewitnesses were located to take part in an identity parade to make a physical identification of the accused man, set for February 2, 2007. The criminal summons sought by the prosecution will be decided based on the results of that proceeding.” The Costa Rican State also explained that it is necessary to investigate not only the death of Mr. Silva Urbina, but also other offences, such as grievous injuries that other aggrieved parties may have sustained, so as to have sufficient evidence to indict the accused for the various crimes that might have been committed. Based on the foregoing, the Costa Rican State says that the Office of the Prosecutor has insisted on locating all of the witnesses and aggrieved parties in order to build a solid case.

97. The State of Costa Rica submits that “in none of the cases questioned by the State of Nicaragua has there been a delay of justice, violation of due process guarantees, or, much less, impunity, “apparent” or otherwise […] and, furthermore, should any doubt exist, in spite of the explanations provided, the parties concerned have recourse to the Constitutional Court.”[92] In that connection, the Costa Rican State invokes the objection alleging failure to exhaust domestic remedies in the instant case.

Position of the State of Costa Rica on the Nicaraguan migrant population in a vulnerable situation in Costa Rica

98. According to the arguments of the State of Costa Rica, the information on the context in the country with respect to immigration serves further to highlight that the individual cases mentioned in the communication of Nicaragua are instances that are isolate, not only from each other, but also in relation the overall situation in the country and the way in which immigrants are generally treated.[93]

99. In its reply to the interstate communication, the State of Costa Rica argues that "it is not reasonable to assert, much less assume as an absolute truth, that xenophobia and discrimination were at the root of the events alleged in the communication.”[94] The State of Costa Rica adds that it has publicly repudiated any display of xenophobia which, it says, are manifestations of minority sectors expressed in private and do not reflect the actions of the State or the sentiments of the majority of Costa Ricans.

100. For the State of Costa Rica, “the deaths of Mr. Natividad Canda Mairena and Mr. José Ariel Silva Urbina are incidents that [the State] regrets and it shares the concern that they be clarified. However, they are isolated cases in Costa Rican society and in no circumstances were they framed by a context of xenophobia or discrimination.”[95]

101. The State of Costa Rica mentioned in its reply to the communication of Nicaragua that there are reiterated displays of solidarity with the Nicaraguan people, and notes, for example, that in the 1980’s the country was a refuge for many Nicaraguans who fled the dangers of the internal conflict that was being waged in their country; that in 1998 and 1999 Costa Rica implemented an immigration amnesty program for Central Americans in which the status of 152,000 people, 97% of whom were of Nicaraguan origin, was regularized; that the Costa Rican Social Security Fund provides emergency, pregnancy, and child delivery care to nationals and foreigners alike, even if the latter do not pay worker-employer contributions; that basic education in the country is free and compulsory for all minors without any discrimination; and that the Constitutional Court has consistently held in a number of judgments that foreigners and nationals have equal rights except where political rights are concerned.[96]

102. In its observations on merits in the case,[97] the State of Costa Rica provided the Commission with information designed to show that it has responded with progressive measures to ensure the rights of the migrant population. The Costa Rican State says that, without understating the added social and cultural challenges faced by the migrant population as a result of the fact that Costa Rica has a large proportion of foreigners in its population, mainly of Nicaraguan nationality (who reportedly comprise 90%), broadly speaking, the challenges faced by the migrant population in Costa Rica are the same as those faced by Costa Rican nationals.

103. The Costa Rican State says that it has progressively developed a legal framework and a complex institutional framework that systematically and broadly guarantee the rights of immigrants.[98] As an example, the State of Costa Rica mentions a congressional bill that it prepared in consultation with sectors of civil society and pertinent international agencies in order to introduce reforms to the Migration Law currently in force. It also mentions with respect to the Constitutional Court, which became part of the country's institutional framework in 1990, that its decisions on the rights of foreigners (health, labor, education, access for students to scholarships, etc.) are another example of the gradual development of the country in this area.

104. As regards access to rights for immigrants in Costa Rica, the State of Costa Rica refers in the brief containing its observations on merits,[99] to the constitutional framework established to protect these rights. In first place, it mentions that Article 19 of the Constitution provides that, with the exception of political rights, foreigners have the same individual and social rights and obligations as Costa Ricans. For its part, Article 33 of the Constitution in Costa Rica recognizes the equality of all persons before the law and expressly prohibits any distinctions contrary to human dignity. In that connection, the Costa Rican State cites a judgment of the Constitutional Court (Judgment 5965-94), which ruled that the Constitution embraces, first and foremost, the principal of equality of fundamental rights, and clearly excludes other possibilities for generic legal rules applicable to foreigners (such as those based on the condition of reciprocity or on discrimination). On this premise, the Constitutional Court interpreted that the right to equal treatment recognized in Article 33 of the Constitution must be considered a fundamental right held by nationals and foreigners alike, and not only the former.

105. In addition, the Costa Rican State assures the Commission that its Constitution includes a recognition of fundamental rights and permits access for all persons residing in its territory, without distinction as to nationality, to, inter alia, public health services, with first-rate specialists and drugs; special protection for minors; free preschool, primary, and secondary education paid for by the State; public universities of recognized academic excellence subsidized by the State; scholarships and school grants [bonos escolares] for both Costa Ricans and foreigners; programs providing decent housing, and labor legislation that requires employers to ensure certain basic conditions for their workers and a minimum wage. Furthermore, under the Constitution, all persons who reside in Costa Rican territory enjoy all the rights recognized in the Constitution and international treaties, subject only to the exceptions and restrictions provided in the Constitution and constitutional laws.

106. With respect to the observations of the State of Nicaragua on the Law on Migration and Nationality (Law 8487), the State of Costa Rica explained in its brief containing its observations on merits that said law is founded on the legitimate exercise by Costa Rica of its sovereignty and the discretion enjoyed by all states to determine the rules authorizing or governing the conditions under which foreigners may stay in their territory, which authority is recognized by the Inter-American Court of Human Rights in Advisory Opinion OC-18/03. Furthermore, the State of Costa Rica underscores that it has presented a proposed law to reform the General Law on Migration and Nationality, the purpose of which is to make its text consistent with the current immigration situation and the requirements outlined by different national and international actors in the area of human rights and public security.

107. In the brief containing its observations on merits,[100] the State of Costa Rica furnishes the Commission with information on how Nicaraguans under its jurisdiction are ensured their rights in labor, education, health, and culture-related areas.

108. With respect to the right to work, the State of Costa Rica notes that this right is enshrined in Article 56 of the Constitution and that workers are also entitled to a number of basic working conditions, including a minimum wage, a maximum working day and week, vacations after a period of continuous work, and the right to a weekly period of rest, among others. Article 68 of the Constitution provides that "there shall be no discrimination as regards salary, benefits, or working conditions between Costa Ricans and foreigners, or with respect to any group of workers.” the Costa Rican State also says that the Constitutional Court (in Judgment 1999-00616) ruled that a provision that required all employers to ensure that at least 90% of their employees were Costa Ricans was unconstitutional. The Constitutional Court confirmed that the right to work is a universal right and not only held by those of a particular nationality, and that the State has a duty to seek to ensure conditions so that everyone might have an honest, useful, and suitably remunerated occupation without discrimination on the basis of salary, benefits, or working conditions between Costa Ricans and foreigners. The Constitutional Court added in its judgment that the Constitution demands a full employment policy, which would be fictitious or nonexistent were it simply based on the exclusion of foreigners from positions of work.

109. The State of Costa Rica added that the prohibition against discrimination in the workplace is not only recognized in the Constitution but also in other regulatory provisions, such as the Labor Code (Article 622) and Law 2694 of 1960 (Article 1). The State also noted that Law 8107 of July 18, 2001, added a new title (Title 11, Prohibition to Discriminate) which consolidated a system of protection against discrimination in the workplace on behalf of workers who are not Costa Rican nationals.

110. As regards the right to education, the Costa Rican State says that there are migrant children of all ages in its education system, where minors of Nicaraguan origin represent around 4% of the total student population in the country, from preschool to third grade and in diversified education (secondary). It mentions that in 2001 alone, the Ministry of Public Education invested a total of 3,605.20 million colones in education for the migrant population and in the wake of various rulings by the Constitutional Court the benefits in the form of student scholarships for this child population have increased. The State of Costa Rica says that there are certain distinguishing features that shape the profile of Nicaraguan students due to the low enrolment ratio in comparison with the national average in Costa Rica, and, in response, the State has designed initiatives, such as the so-called “Aula Abierta” [Open Classroom] program, to provide special instruction at schools with particular attention to the immigrant population and overage students.

111. On the subject of the right to housing, the State of Costa Rica presented the IACHR with a series of figures to show that in the period from 1989 to 2004, the State processed the applications of 5,379 families with at least one foreign member that applied for a Family Housing Grant [Bono Familiar para la Vivienda].

112. As to the right to health, the Costa Rican State observes that in accordance with the policy and institutional framework in place in Costa Rica, health services are available for anyone who needs them. The State admits that at present no undocumented foreigner can be assured of receiving such services in any category because the procedure requires a residence card or a work permit. Therefore, their access to services is sometimes limited by their irregular status. However, the State of Costa Rica mentions that the Constitutional Court has guaranteed this right without distinction as to nationality through its consistent case law and has ruled that health services must be guaranteed for all inhabitants of the Republic, regardless of their immigration status or their eligibility for admittance to the social security system. The State says that according to information from the Costa Rican Social Security Fund, the healthcare spending on foreigners in 2001 accounted for approximately 5% of total social security spending on health. The State adds that at the local community level primary health care is provided by Basic Comprehensive Healthcare Teams (EBAIS) and that access for immigrants to this system is facilitated by the fact that no requirements of any kind need be met. Furthermore, the State says that emergency healthcare is provided irrespective of the migratory status of the patient, although for consultations and internment the patient must have insurance. Finally, the State of Costa Rica cites the report of the Rapporteurship on Migrant Workers and their Families of the IACHR, published in 2002 following its visit to Costa Rica, which notes that while the State recognizes that in many cases undocumented migrant workers do not seek health services for fear of being deported, the government has a policy of not refusing health services to any person seeking them.[101]

113. As regards the right to culture of the immigrant population in Costa Rica, the Costa Rican State says it has made efforts to improve the perception of the immigrant population in the country. For example, it mentions a documentary produced by the Costa Rican Cinematographic Production Center in 1998 entitled "Más allá de las fronteras" [Beyond our borders], which deals with the situation of young Nicaraguan migrant women who come to Costa Rica to work as domestic servants. It also mentions the support provided by the state for independent initiatives that work to raise awareness about the problems faced by immigrants, as in the case of a play entitled “El Nica”.

114. The State of Costa Rica, after describing the legal framework governing the rights of migrants in its territory, says that the rights of migrants are also justiciable and enforceable, in particular through the remedies of habeas corpus and amparo. In this connection, the Costa Rican State cites Article 48 of its Constitution, which enshrines the right of all persons, without distinction between Costa Ricans and foreigners, or based on the migratory status of the latter, to file a petition of habeas corpus to ensure the liberty and well-being of persons or to present an action for amparo to protect or repair other rights enshrined in the Constitution and international human rights instruments. Both actions must be brought before the Constitutional Chamber of the Supreme Court Justice. The State adds that neither remedy is subject to formal procedural requirements and both are disposed of in record time by the Constitutional Chamber of the Supreme Court Justice. Furthermore, according to the State of Costa Rica these remedies operate without prejudice to other actions provided in the body of laws for protection of human rights in other areas, such as labor-related lawsuits in the ordinary courts, administrative proceedings before the State, actions to protect proprietary claims, etc.

115. The State of Costa Rica observes that through the jurisprudence of the Constitutional Court protections for the basic rights of health and education have been broadened and developed for all the country's inhabitants, be they foreigners or nationals, which has lead to the availability of emergency healthcare and child delivery services for all persons no matter if they contribute to the social security system or not. The State notes, furthermore, that the rulings of the Constitutional Court have favored the rights of migrant children and recognize that every child in the territory of the Republic is entitled to all of the benefits contained in the Convention on the Rights of the Child

116. In its brief containing its observations on merits in the case, the State of Costa Rica mentions that supplementing the various mechanisms for protection of human rights of migrants in Costa Rica are a series of good state practices in the area of immigration, including the 1999 Immigration Amnesty, the activities of the Permanent Forum on Migrant Populations, and the management of migratory flows by the Technical Area on Migrant Labor of the Ministry of Labor, among others.

117. With respect to the Immigration Amnesty, the State of Costa Rica notes that by June of 1999 around 152,000 Central Americans, 97% of them of Nicaraguan origin, had taken advantage of the amnesty to regularize their migratory status and become residents. With respect to the activities of the Technical Area on Migrant Labor of the Ministry of Labor and Social Security, the State mentioned that field research projects have been carried out since approximately since 1996 to study developments in the labor market and to determine the real situation with respect to the labor conditions of migrants in the country, especially Nicaraguans, with particular attention given to monitoring seasonal agricultural programs. As regards the Permanent Forum on Migrant Populations, the Costa Rican State explains that this forum was created in 1995 among the offices of the Ombudsman to discuss the situation of the migrant population Costa Rica, as well as possible responses by the State to deal with this phenomenon.

118. Based on the foregoing, the State of Costa Rica says that it is fair to conclude that there is no structural vulnerability for immigrants, but that, to the contrary, it has been the practice of the State to try to respond to the needs of the foreign population in the country.[102] According to the State of Costa Rica, based on a careful analysis of the arguments presented by the State of Nicaragua it may be reasonably concluded that the allegations, while regrettable and requiring the due attention of the Costa Rican authorities, are not sufficient to assert that there exists in Costa Rica the climate of discrimination and xenophobia that the State of Nicaragua seeks to create.

119. While the State of Costa Rica recognizes that one of the consequences of the massive immigration of Nicaraguans to its territory is that certain sectors of the population regard immigrants with distrust, it maintains that that is a logical consequence of migration that occurs in any country with large migrant flows. In that connection, the State of Costa Rica once more cites the report that the Rapporteurship on Migrant Workers and their Families of the IACHR published in 2002 following its visit to Costa Rica, which explains that 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. However, the Rapporteurship observes 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.[103] A similar interpretation of the phenomenon can be found in a 2002 Study prepared by the Inter-American Development Bank, which the State of Costa Rica cites in its observations on merits, and according to which the results –and especially the high levels of participation in the labor market suggest that Nicaraguans, like other groups of immigrants who have chosen to migrate, are vulnerable rather than excluded.[104]

120. The Costa Rican State also cites a study published by the Central American Population Center in 2006, which says that “several recent government efforts have moved in the direction of a more integrated social policy towards Nicaraguan migrants. These include a Program on the Improvement of Quality of Life and the Integration of Migrants in Costa Rica undertaken by the Second Vice-President of Costa Rica. In addition, the 2002-2006 National Development Plan includes a specific component addressing the welfare of Nicaraguan migrants and members of the Costa Rican and Nicaraguan governments have produced a draft Binational Policy on Migration.”[105]

121. The State of Costa Rica also refers to the role of the press, in particular to its social responsibility in propagating stereotypes that shape public opinion. In this connection, the State of Costa Rica cites and presents as evidence several articles published in the Nicaraguan press, and argues that they disseminate messages of hate, stir up irresponsible nationalist sentiment, and even go so far as to urge Nicaraguans to take up arms on Costa Rican soil.

122. Finally, the State of Costa Rica says that “both States should take steps to continue constructing a positive, though complex, relationship between the two nations. This is a shared responsibility and should be reflected by national agreements. For its part, the Costa Rican State undertakes to continue to move forward in providing effective protection for the human rights of foreigners, 90% of whom are of Nicaraguan origin; as well as engaging in dialogue in binational forums to look for ways to strengthen human development in both countries.”[106] It should also be noted that the State of Costa Rica has emphasized that to say that both Nicaragua and Costa Rica face enormous challenges to prevent the rise of xenophobia between the two nations is not an admission that a climate of xenophobia exists […]; quite the contrary, it constitutes a recognition of the real situation between the two nations with the sound intention for the two states to adopt preemptive measures to strengthen relations between the two peoples. To ignore this reality, rather, would be to support it.”[107]

IV. ANALYSIS

A. Preliminary considerations concerning the processing of this interstate communication

123. In this section the Commission analyzes the rules that authorize and govern the processing by the Commission of cases in which a state party alleges that another state party has committed a violation of a human right set forth in the Convention.

124. The American Convention, at Section 3 of its Chapter V, establishes the competence of the Inter-American Commission on Human Rights. Article 44 of the Convention refers to the authority of the Commission to process petitions that contain denunciations of violation of the Convention by a State Party, which may be lodged by any person or group of persons, or any nongovernmental entity legally recognized in one or more member states of the Organization. For its part, Article 45 of the Convention clearly determines the competence of the Commission to receive and examine communications in which a state party alleges that another state party has committed a violation of a human right set forth in the Convention, provided that both the state party that presents the communication and the state party against which it is presented shall have declared, upon depositing their instrument of ratification of or adherence to the Convention, or at any later time, that they recognize the competence of the Commission to receive and examine communications in which a state party alleges that another state party has committed a violation of a human right set forth in the Convention. Declarations concerning recognition of competence may be made to be valid for an indefinite time, for a specified period, or for a specific case.

125. Articles 46 and 47 of the Convention, for their part, concern the admissibility requirements to be met by both petitions presented under Article 44 and communications lodged pursuant to Article 45. Next, Section 4 of the Chapter V of the American Convention governs all the aspects of the procedure to be followed by the Commission upon receiving a petition submitted in accordance with Article 44 or upon receiving a communication presented pursuant to Article 45, if they alleged violation of any of the rights protected by the Convention.

126. Furthermore, Article 48 of the Rules of Procedure of the IACHR provides that when a state party to the American Convention that has accepted the competence of the Commission to receive and examine such communications against other states parties lodges a communication against another state, the Commission shall transmit it to the state party in question whether or not it has accepted the Commission's competence. If it has not accepted that competence, the communication shall be transmitted in order that the state concerned may exercise its option to recognize the competence of the Commission in the specific case that is the subject of the communication. Furthermore, according to the aforesaid Article 48, if the State in question has accepted the Commission’s competence to consider a communication from another state party, the respective procedure shall be governed by the provisions concerning the processing of all petitions lodged with the Commission, insofar as they apply.

127. It may be concluded from the foregoing that both the American Convention and the Rules of Procedure of the IACHR have provided that communications in which a state party alleges that another state party has committed a violation of a human right set forth in the Convention, are governed by the same rules of procedure and must meet the same requirements as petitions containing denunciations or complaints that are presented by any person, provided that they also satisfy the specific requirements set forth in article 45 of the Convention, the foregoing without prejudice to the fact that the applicable procedures and requirements must take into consideration the special characteristics and purposes of the mechanism for communications between states.

128. In presenting its communication, the State of Nicaragua said that it did so “specifically in accordance with the requirements set down in Articles 61 (1), (2), and 48 to 50 of the American Convention on Human Rights”. At the same time, the Nicaraguan State requested that “ this petition be processed in accordance with Articles 48 to 51 of the American Convention on Human Rights and, therefore, that the State of Costa Rica be requested to provide a report.” Furthermore, the State of Nicaragua said that its interstate communication was in keeping with the terms of the appropriate form of the IACHR as an obligatory prior step to the introduction of cases referred to the Inter-American Court of Human Rights. The State of Nicaragua invokes, for this case, the procedure determined by the Inter-American Court of Human Rights in the Case of Viviana Gallardo et al.”

129. Throughout the proceeding in this case, the State of Nicaragua has held that the communication that it presented against the State of Costa Rica should not have been processed under Articles 45 et seq. of the Convention, but pursuant to Article 61 of the American Convention on Human Rights, which only makes reference to Articles 48 to 50 of that instrument.

130. In this connection, the Commission notes that the American Convention is an integral whole that must be interpreted in its entirety, and the Commission is required to apply and comply with each and every one of the articles that the Convention contains. It is the duty of the organs of the system to ensure the international protection that the Convention provides, taking into account the totality of the framework agreed on by the states. Accordingly, if Article 45 of the Convention specifically recognizes the competence of the Commission to admit and examine communications between states, and Articles 46 and 47 expressly set out the requirements to be fulfilled by such communications in order to be admitted by the Commission, in no circumstances could the IACHR ignore these articles and process an interstate communication solely under Articles 48 to 51 of the Convention as the State of Nicaragua has requested. Moreover, Article 48 (a), invoked by the State of Nicaragua, provides that if the Commission considers the communication admissible, it shall request information from the government of the state indicated as being responsible for the alleged violations. Accordingly, Article 48 itself compels the Commission to make a determination on admissibility, and to do so in accordance with Articles 46 and 47 of the Convention.

131. As the State of Costa Rica has mentioned, application of Article 45 of the Convention is an obligatory and logical prerequisite since otherwise the competence to be exercised by the Commission would not exist.

132. The Commission also recalls that the Matter of Viviana Gallardo et al.,[108] to which the State of Nicaragua refers, is a case that originated from the action of a state party that submitted to the Court for consideration a case of possible violation of human rights enshrined in the Convention imputable to the same state, that recognized ipso facto the competence of the Court to examine cases concerning interpretation or application of the Convention. On that occasion, the State said that it "formally waives the requirement of the prior exhaustion of the domestic legal remedies and the prior exhaustion of the procedures set forth in Articles 48 to 50 of the Convention," in other words, processing by the Inter-American Commission. It declared the purposes of that waiver was “to enable the Court to ‘consider the instant case immediately and without any procedural obstacle.’” In that instance, the Inter-American Court decided unanimously not to admit the application of the Government of Costa Rica, requesting the Court to examine the matter of Viviana Gallardo et al., but to grant the subsidiary plea of the government of Costa Rica and refer the matter to the Inter-American Commission on Human Rights. Therefore, the case of Viviana Gallardo et al. confirms the need to exhaust the proceeding before the Commission.

133. In reaching its decision in the Matter of Viviana Gallardo et al., the Court also concluded that the procedures before the Commission cannot be dispensed with in this kind of case without impairing the institutional integrity of the protective system guaranteed by the Convention. The Court further found obiter dictum that ”[t]hese procedures may therefore not be waived or excused unless it were to be clearly established that their omission, in a specific case, would not impair the functions that the Convention assigns to the Commission, as might be the case when a matter is initially presented by a State against another State and not by an individual against a State.”[109] However, such exceptional circumstances must be demonstrated and it would be wrong to conclude that the proceeding before the Commission could be dispensed with in all interstate cases. In any case, the State of Nicaragua presented its communication to the Commission and requested it to process it in accordance with Articles 48 to 50 of the Convention and, in so doing, accepted the processing of the communication by the IACHR in the terms established by the Convention, including a determination as to the competence of the IACHR and the admissibility of this communication.

134. Based on the foregoing, the Inter-American Commission considers that in processing the instant interstate communication under Articles 45 et seq. of the Convention, it acted in full accordance with the provisions contained in the American Convention and in its Rules of Procedure.

135. The State of Nicaragua has also protested the decision of the Commission to grant an extension to the State of Costa Rica to present its reply to the interstate communication, even though the extension was requested after the time limit for the Costa Rican State to submit its reply had expired. The Commission is aware that the time limit for the State of Costa Rica to submit its reply to this interstate communication expired on April 15, 2006, with no reply forthcoming from said State. Then, on April 24, 2006, the State of Costa Rica sought an extension of 15 days to present its reply and on April 27 the Commission decided to grant a single extension of eight days for the State of Costa Rica to respond to the interstate communication.

136. However, in the practice of the Inter-American system for protection of human rights both the Commission and the Court have determined that a delay in meeting a deadline may be overlooked provided that the delay is not considered excessive within the necessary limits of time and reasonableness. “The Court has exercised flexibility vis-à-vis the periods established in the Convention and in its Rules of Procedure […]and has often granted extensions requested by the parties when they have shown reasonable cause.”[110] Thus, this is not the first time that the organs of the system have granted an extension to a party, even after the time limit has expired, provided there has been reasonable cause to do so.[111] In the instant case, the Commission finds that the delay of State of Costa Rica in presenting a request for an extension cannot be considered excessive.

137. Above all, the Commission takes the view that, particularly since this is a case between states, it is especially important to exercise flexibility with time limits so as to preserve the possibility of balanced exchanges between the two states in the interests of attaining justice. As this is a case in which the relations between two OAS member states are at stake, the Commission considered it essential to listen to the opinions of both states on the matter, since the effects of not hearing one of the parties in this case by reason of an expired deadline could have seriously affected relations between these two neighboring nations. In this connection it is worth recalling the position adopted by the Court in the sense that “the procedural system is a means of attaining justice and that the latter cannot be sacrificed for the sake of mere formalities. Keeping within certain timely and reasonable limits, some omissions or delays in complying with procedure may be excused, provided that a suitable balance between justice and legal certainty is preserved.”[112].

138. It is on the basis of these principles that the Commission considers that to grant an extension to the State of Costa Rica, so that it might present its observations on the communication that the State of Nicaragua lodged against it, was fully justified within the limits of time and reasonableness necessary to preserve a balance between justice and legal certainty. Therefore, the Commission strenuously rejects the allegations in which the Nicaraguan State denounces an “apparent partiality of the Executive Secretariat toward the Respondent State” and reiterates that both the Commission and its Executive Secretariat have acted in an absolutely objective and impartial manner in processing this communication and have proceeded at all times within the limits set forth in the American Convention and the Rules of Procedure of the IACHR.

139. The State of Costa Rica, on the other side, asserted that it is convinced that there has been a series of irregularities in the processing of the instant communication[113], and thus the Commission will analyze these assertions.

140. In first place, the Costa Rican State alleges irregularities connected with the decision of the Commission to join its examination of admissibility and merits as provided in Article 37(3) of its Rules of Procedure. In that regard, the Costa Rican State has mentioned that the note of the Executive Secretariat “would appear to suggest a connection between the ‘non-acceptance’ of the friendly [settlement] procedure and the joinder of the admissibility stage with the debate and decision on merits.”[114] The State of Costa Rica adds that the Commission never justified that joinder and thereby violated a fundamental requirement in the proceeding.

141. The Commission notes that Article 37(3) of its Rules of Procedure empowers it, in exceptional circumstances, to open a case but defer its treatment of admissibility until the debate and decision on the merits. The above-cited article also provides that the case shall be opened by means of a written communication to both parties. Furthermore under its Rules of Procedure, the Executive Secretariat is authorized to receive and process the correspondence addressed to the Commission. However, the applicable rules do not require the Secretariat to inform the parties in writing which exceptional circumstances the Commission weighed in reaching its decision to join the stages on admissibility and merits in the case. The IACHR considers that those exceptional circumstances are amply attested in the instant report and utterly rejects any accusation that the Commission has committed irregularities in processing this communication based on the misinterpretation of a note transmitted by its Executive Secretariat.

142. In addition, the State of Costa Rica has mentioned that it finds it unacceptable that the letter notifying it of the decision of the Commission to convene a hearing and join the stages on admissibility and merits should have been entitled "Interstate Case 01/06 Nicaragua v Costa Rica” without any basis for doing so.[115] In that respect, the Commission is mindful that the above-cited Article 37 of the Rules of Procedure of the IACHR, empowers the Commission to open the "case" but to defer its treatment of admissibility until the debate and decision on the merits. Upon reaching the stage on merits, all petitions and communications received by the Commission are registered as "cases" pursuant to the provisions contained in Articles 37(2) and 37(3) of its Rules of Procedure.

143. Finally, the State of Costa Rica has also protested the decision of the Commission to convene a hearing before the time limit granted to the State of Nicaragua to present its observations on merits had elapsed.[116] On this point, Article 38 of the Rules of Procedure of the IACHR, in establishing the applicable procedure for cases in the merits stage, provides at paragraph five that “[i]f it deems it necessary in order to advance in its consideration of the case, the Commission may convene the parties for a hearing.” Moreover, Article 62 of the Rules of Procedure provides that “[h]earings on petitions or cases shall have as their purpose the receipt of oral or written presentations by the parties relative to new facts and information additional to that which has been produced during the proceeding. The information may refer to any of the following issues: admissibility; the initiation or development of the friendly settlement procedure; the verification of the facts; the merits of the matter; follow-up on recommendations; or any other matter pertinent to the processing of the petition or case.” The Commission considers that hearings are the opportune moment for parties to present any document, witness testimony, expert opinion, or evidence in connection with the case. Therefore, there was no rule or reason to prevent the IACHR from convening a hearing when it did. It is worth noting, furthermore, that the Commission did not exclude the possibility that the State of Costa Rica present its written arguments in the time duly allotted for that purpose.

B. Competence of the Commission under Article 45 of the American Convention

144. The first paragraph of Article 45 of the American Convention requires the express acceptance for its organs to examine interstate communications. As the Inter-American Court has held, the Convention is unique among international human rights instruments in making the right of private petition applicable against State Parties as soon as they ratify the Convention; no special declaration to that effect is required for individual petitions, although it must be made for inter-State communications.[117]

145. In this case the communication was presented by the State of Nicaragua against the State of Costa Rica and, therefore, it is necessary to determine if both states have declared their recognition of the competence of the Commission to receive and examine communications in which a state party alleges that another state party has committed a violation of a human right set forth in the Convention.

146. The second paragraph of Article 45 of the Convention states, in first place, that communications presented by virtue of said article may be admitted and examined only if they are presented by a State Party that has made a declaration recognizing the aforementioned competence of the Commission. Accordingly, the Commission must ascertain if the State of Nicaragua made such a declaration.

147. According to the information in the record, on February 6, 2006, Nicaragua presented a note to the General Secretariat in which it announced that the Government of the Republic of Nicaragua had added a third paragraph to Declaration 49 of January 15, 1991, concerning the American Convention on Human Rights, by which it declared that it recognizes the competence of the Inter-American Commission on Human Rights to receive and examine communications in which a state party alleges that another state party has committed a violation of a human right set forth in the Convention, under the terms of Article 45 thereof.

148. The second paragraph of Article 45 of the Convention states, in second place, that the Commission shall not admit any communication against a State Party that has not made such a declaration. Accordingly, the Commission must ascertain if the State of Costa Rica made such a declaration.

149. According to the information in the record, the State of Costa Rica deposited with the General Secretariat of the OAS its declaration of acceptance of the competence of the Commission to receive and examine communications between states on July 2, 1980. The Costa Rican State deposited this declaration at the same time as it presented its instrument of ratification of the Convention, a fact disputed by neither of the parties.[118]

150. The third paragraph of Article 45 of the Convention does not establish a requirement but the power of states to decide if their declarations concerning recognition of competence are made to be valid for an indefinite time, for a specified period, or for a specific case.

151. A reading of the declarations made by both states to recognize the competence of the Commission to receive and examine communications between states leads to the conclusion that neither of them exercised the option to establish time constraints or any other limits on the competence of the Commission. The Commission analyzes below the moment at which those declarations came into effect.

152. Finally, the fourth paragraph of Article 45 of the Convention provides that declarations shall be deposited with the General Secretariat of the Organization of American States,[119] which shall transmit copies thereof to the member states of that Organization. Accordingly, the Commission must verify if both states made the necessary deposit with the General Secretariat and if the latter duly transmitted them to the OAS member states.

153. As mentioned in the preceding paragraphs, Costa Rica deposited with the General Secretariat of the OAS its declaration of acceptance of the competence of the Commission to receive and examine communications between states on July 2, 1980, and neither of the parties in this case have disputed that deposit.

154. As to the deposit by the Nicaraguan State of its declaration of acceptance of the competence of the IACHR, the Commission notes that the State of Nicaragua, upon presenting its interstate communication, said that its declaration of recognition of the competence of the Inter-American Commission on Human Rights to receive and examine communications in which a state party alleges that another state party has committed a violation of a human right set forth in the American Convention on Human Rights, was published in Official Gazette, La Gaceta, No. 22 of January 31, 2006 and “brought to the attention of the General Secretariat of the Organization of American States on February 3 of the year in progress, so that its contents might be transmitted to the States Parties to the Convention and the Member States of the Organization”[120].

155. On lodging its interstate communication with the IACHR on February 6, 2006, the State of Nicaragua also presented a copy of the note that it sent to the Secretary General of the OAS and which, according to the communication of the State of Nicaragua, was received by the General Secretariat of the Organization on Friday, February 3, 2006. The purpose of the note to the Secretary General[121] was to bring to his attention the declaration of January 26, 2006,[122] and request that he transmit to the other states parties to the Convention and the