Dilcia Yean y Violeta Bosica v. Dominican Republic, Case 12.189, Report No. 28/01, OEA/Ser.L/V/II.111 Doc. 20 rev. at 252 (2000).
DILCIA YEAN AND VIOLETA BOSICA
February 22, 2001
On 28 October 1998, The Inter-American Commission on Human Rights
(hereinafter the Commission or the IACHR) received
a complaint lodged by the International Human Rights Law Clinic (University
of California Berkeley, School of Law, Boat Hall), the Center for Justice
and International Law (Centro por la Justicia y Derecho Internacional
CEJIL) and the Haitian-Dominican Womens Movement, Inc.
(MUDHA) on behalf of Dilcia Yean and Violeta Bosica. In it they maintain
that the State of the Dominican Republic (hereinafter the State
or Dominican Republic) has denied these two girls citizenship
in spite of the fact that both were born within the territory of the Dominican
Republic and that the Constitution establishes the principle of jus
The petitioners claim that the Dominican Republic is depriving
Misses Yean and Bosica of their basic rights and exposing them to imminent
and arbitrary expulsion from their native country due to the fact that
they do not have any document that proves their Dominican citizenship.
In addition, Violeta Bosica is not allowed to attend school for lack of
a birth certificate.
The petitioners allege that by not recognizing Dilcia Yean (4 years
of age) and Violeta Bosica (15 years of age) as citizens and by denying
them documentation that would verify their Dominican citizenship, the
State is violating the right to nationality as enshrined in Article 20
of the American Convention on Human Rights and other rights if the facts
as declared can be proven.
On 27 August 1999, the Commission adopted precautionary measures
on the basis of Article 29 of its Rules of Procedure. This was done to
assure that the girls not suffer any irreparable harm, such as both of
them being expelled from the Dominican Republic or Violeta Bosica being
denied the right to attend school and receive an education like any other
child with Dominican citizenship. During the proceedings, the Commission
offered its good graces to the Parties to try to reach a friendly solution.
Two hearings were held with that aim, but the Parties did not reach agreement.
The Dominican Republic maintains that it has acted in accordance
with the provisions of domestic law and the American Convention. It claims
that the petitioners have not exhausted domestic remedies.
In its 110th Session, the Commission examined the statements
of fact and of law presented by the Parties during the processing of the
complaint and declared the case admissible.
II. PROCEEDINGS BEFORE THE COMMISSION
The Commission received the initial petition on 28 October 1998.
On 13 June 1999, the petitioners submitted an amended version requesting
that precautionary measures be instituted on behalf of Dilcia and Violeta.
On 7 July 1999 and in accordance with Article 34 of its Rules of Procedure,
the Commission begun proceedings on case 12.189 and requested the Dominican
Republic to submit pertinent information within 90 days.
On 27 August 1999 and in accordance with Article 29 of its Rules
of Procedure, the Commission requested the Dominican Republic to institute
precautionary measures on behalf of Dilcia Yean and Violeta Bosica to
assure that they would not be expelled from the Dominican Republic and
that Violeta Bosica would be able to continue attending school. The Commission
gave the State 15 days to submit all pertinent information.
On 17 September 1999, the Commission received a request from the
State to extend the above-mentioned period. On 30 September 1999, the
State submitted its comments, indicating that the petitioners had not
exhausted domestic remedies. This information was passed on to the petitioners
on 7 October 1999.
On 5 October 1999, during its 104th Regular Session,
the Commission met with the parties in a hearing in which precautionary
measures were discussed. The State announced that the measures requested
by the Commission were being carried out. The petitioners stated that
the information they had received indicated that the girls had not been
deported from the Dominican Republic and that Violeta Bosica was regularly
On 1 November 1999, the Commission decided to offer its good graces
to help the Parties reach a friendly solution. In a letter dated 22 November
1999, the State indicated that it would be willing to undertake such a
proceeding. On 11 January 2000, the petitioners also accepted to begin
proceedings aimed at a friendly solution as proposed by the IACHR.
In a hearing on 6 March 2000, the petitioners outlined their proposals
for a friendly solution. The State, however, disputed each and every fact
set forth by the petitioners, distancing itself from the friendly solution
framework proposed by the IACHR.
On 2 May 2000, the petitioners submitted additional information
to the Commission, which was in turn remitted to the State on 4 May 2000.
The State responded on 7 June 2000 by repeating that domestic remedies
had not been exhausted and that Article 47(1)(a) of the Convention should
be applied. In accordance with normal procedures, this information was
passed on to the petitioners on 7 July 2000.
III. POSITIONS OF THE PARTIES
Position of the Petitioners
The petitioners maintain that the Dominican Republic has refused
to issue belated declarations of birth to Dilcia Yean and Violeta Bosica,
both of whom were born in the territory of the Dominican Republic to Dominican
women of Haitian descent.
The petitioners claim that the State has violated their right to nationality
and that deprived of such legal identity, the girls are in danger of imminent
expulsion from the country.
The petitioners also point out that deprived of the right of having
their births registered, the girls are unable to obtain recognition of
their legal personality and cannot enroll in school because they have
no identity document. Moreover, the petitioners
maintain that upon coming of age, the girls will not be able to exercise
their right to vote and will be deprived of their political rights. The
petitioners go on to claim that the State has deprived the alleged victims
of the right to the protection of the family, the rights of the child,
the right to a name and to nationality, and the rights to private property,
to freedom of movement and residence and to equal protection of the law,
all enshrined in the American Convention. The petitioners argue that the
plaintiffs are being deprived of their rights because of their race and
their Haitian descent.
The petitioners maintain that the offices in charge of processing
birth registrations refused to register the girls, saying that they had
orders not to register or issue birth certificates to children of Haitian
descent. In this regard, the petitioners claim that the official in charge
of the Civil Registry pointed out that both the first and last names of
the girls were foreign and that they couldnt be registered because
their parents were Haitian and thus they also were Haitian. This same
official said that when the girls were born, their parents were in the
country illegally and thus the girls had no right to Dominican citizenship.
The petitioners claim to have exhausted domestic remedies. The
respective mothers went to the Civil Administration Office (Oficialía
Civil) in Sabana Grande de Boyá to request belated declarations of
birth. When the official there refused to issue them, the plaintiffs appealed
the decision to the Procurator of the Monte Plata District, who also rejected
their applications. This was the final recourse available for obtaining
the belated declarations of birth.
POSITION OF THE STATE
The State holds that domestic remedies were not exhausted in the
case under consideration. It adds that there was no refusal to register
the girls and that they were told to redirect their efforts to comply
with the provisions of the Central Electoral Board (Junta Central Electoral,
hereinafter JCE), which is competent body for belated declarations. The
State added that the JCE has remained open to the petitioners complying
with legal requirements at any stage of the proceedings and that the order
issued by the Procurator of the Monte Plata District should not be considered
final and irreversible.
The State also holds that the girls mothers must go before
the courts of the land to comply with the requirement of exhausting domestic
remedies. It maintains that an appeal to the Procurator, who is a representative
of the Office of the Attorney General (Ministerio úublico) and
not a judge with jurisdiction to rule over legal disputes, is insufficient.
The State counters the petitioners allegations of discrimination,
maintaining that the JCE, under which public employees of the Civil Administration
work, has never issued instructions that children of Haitian descent are
not to be registered.
In response to the claim that the girls are in a situation of imminent
danger, the State maintains that Currently there is no possibility
of the Dominican Republic repatriating any Haitian who is in the country
on a legal basis (such as those who hold legal residence, refugee status,
a work permit or a current visa), or who fulfills any of the conditions
for tolerance of illegal immigrants (such as citizenship with prolonged
presence in the country or family links with Dominican nationals).
The State holds that in the case under consideration, the General
Office on Migration (Dirección General de Migración) ordered the
pertinent departments not to repatriate minors Dilcia Yean and Violeta
Bosica, both of Haitian descent and allegedly born in the Dominican Republic,
until their claims could be fully checked. The State also reports that
the Department of Haitian Affairs was sent orders to issue a certificate
allowing the minors to temporarily remain in the country on a fully legal
basis while their status was being examined.
IV. ANALYSIS OF ADMISSIBILITY AND COMPETENCE
As stipulated in Article 44 of the American Convention on Human
Rights (ratione materiae), the
Commission has prima facie competence
to examine the petitioners complaint since the alleged acts concern
the right to nationality enshrined in Article 20 of the Convention. The
Commission has ratione loci
competence since the alleged acts occurred in the jurisdiction of the
Dominican Republic, which has been a State Party to the Convention since
7 September 1978. The Commission has ratione
temporis competence since the alleged acts were carried out during
a period in which the Dominican Republic was under obligation to respect
and guarantee the rights enshrined in the Convention.
The Commission will now examine if the petition meets the admissibility
requirements set out in Articles 46 and 47 of the American Convention.
of domestic remedies
Article 46(1)(a) of the Convention stipulates that:
1. Admission by the Commission of a petition or communication lodged in accordance with Articles 44 or 45 shall be subject to the following requirements:
that the remedies under domestic law have been pursued and exhausted
in accordance with generally recognized principles of international law;
The Commission has repeatedly referred to the supplemental
or complementary nature of the inter-American human rights protection
system. This rule allows states to resolve matters within their own legal
framework before being faced with any international proceedings.
In the case under consideration, the petitioners claim to have
reported the human rights violations to the competent authorities. Nonetheless,
the attempted use of domestic remedies did not prove fruitful.
The State, on the other hand, disputes the facts as presented by
the petitioners in regard to exhaustion of domestic remedies. The State
claims that domestic procedures are still available and thus domestic
remedies have not been exhausted.
The petitioners claim to have exhausted all remedies available
domestically once they applied for belated declarations of birth for Dilcia
Yean and Violeta Bosica in Sabana Grande de Boyá, province of Monte Plata,
on 5 May 1997. They point out that in order to register the minors, both
mothers submitted their identity cards and proof that the girls were born
in the Dominican Republic. The petitioners state that after the Civil
Registry official refused to authorize issuance of belated declarations
of birth for the minors, they appealed the case to the Procurator
of the Monte Plata District, requesting him to order that the girls
births be entered in the Civil Registry. On 20 July 1998, the Procurator
denied their request, saying that proper documentation had not been provided
and that proper procedures had not been followed.
The petitioners state that during their attempts to register the
girls, they were asked to submit a number of documents that in their opinion
were irrelevant to showing that the girls were in fact born in the Dominican
Republic. Moreover, they maintain that most Haitian-Dominicans would find
it impossible to produce all the documents required.
The petitioners claim that both mothers are Dominican citizens,
as proven by their respective identity and voter registration cards. But
they affirm that they cannot meet the requirement of supplying identification
for the girls fathers, both of whom are Haitian and have no contact
with them. The petitioners add that the requirement of presenting witnesses
over 50 years of age with an identity card and who also know how to read
and write is impossible to meet. Both girls were born in the bateyes
where people do not possess identity cards and most are illiterate. In
addition, the petitioners claim that the State considers Haitian and Haitian-Dominican
workers to fall under the in transit category of people established
by the Constitution, a category which denies Dominican nationality to
The petitioners hold that the girls mothers took the initiative
to present their request directly to the Procurator since his function
is to oversee and report on errors made by Civil Registry officials.
The petitioners claim that in domestic law there is no provision
allowing a private party to appeal a decision of the Procurator to a Court
of First Instance. According to Law 659 on Acts of the Civil Administration,
it is the Procurator who is charged with presenting belated declarations
to the Court of First Instance and in the case under consideration, that
was never done.
In regard to possibly appealing to the JCE, the petitioners maintain
that in domestic law there is no procedure for applicants to file individual
cases before the JCE in regard to denial of a belated declaration of birth.
Moreover, petitioners hold that an appeal to the JCE is not an effective
recourse since the JCE has made its opinion known
by declaring that the documents submitted by the mothers were not sufficient
and for that reason they had not granted the birth certificates. Lastly,
the petitioners hold that they are not required to appeal to the JCE since
it is not a body of judicial recourse.
The petitioners maintain that the JCE and the Dominican courts
do not offer effective remedy. They hold that any appeal to the JCE is
a purely illusory remedy since that body will not consider registration
requests that do not include the mandatory documentation, which the petitioners
claim is impossible to provide. The petitioners maintain that domestic
legislation does not confer the JCE with jurisdiction to hear individual
cases previously handled by the Offices of Civil Administration. They
add that the impossibility of appealing a decision of the JCE, which denied
the girls their request for birth certificates, effectively means that
all domestic remedies have been exhausted. 
The State holds that the documents required for the issuance of
a belated declaration of birth apply equally to all persons and that there
is no discrimination on the basis of the parents heritage. In this
regard, the State maintains that the affected parties were informed at
all times of the requirements for obtaining the kind of declaration they
wanted. The State notes that when applying for a belated declaration of
birth in the Office of Civil Administration in Sabana Grande de Boyá,
the mother of Violeta submitted only a certification of birth issued by
the mayor of Batey Las Charcas and her own identity and voter registration
cards, while Dilcias mother submitted only a certification of birth
issued by the Sabana Grande de Boyá health clinic and her own identity
card. The State considers such documentation to be insufficient to issue
The State maintains that the JCE has still not issued a final decision,
that the case is still open, and that the plaintiffs can still register
the minors in question by complying with the requirements established
The State also maintains that the plaintiffs have not sought remedy
before the regular courts and that the Procurator, to whom they went to
apply for a belated declaration of birth, is a representative of the Office
of the Attorney General and not a judge. They thus argue that domestic
remedies have not been exhausted. Moreover, the State holds that the Procurator
incurred in a procedural error when accepting the appeal filed by the
mothers of the alleged victims. They point to Article 41 of Law 659 which
stipulates that it is the Civil Registry official who shall send a certified
copy of the file to the Procurator of the Court District.
The State argues that the Procurator rejected the application for a belated
declaration of birth on the basis of documental and procedural shortcomings.
The State thus maintains that the JCE has not yet made any final decision
in this case.
An examination of Dominican legislation in the possession of the
Commission shows that the petitioners lack the authentication needed to
initiate a court case since they must request the Procurator to do so
according to Article 41 of Law 659. Moreover, examination of submissions
shows that the Procurator did not authorize the judge of first instance
to initiate an investigation on whether belated declarations of birth
should be issued to Dilcia Yean and Violeta Bosica, as stipulated in Article
41 of law 659.
Jurisprudence in the inter-American system has established that
a State claiming that domestic remedies have not been exhausted must show
that suitable and effective remedies exist (onus
probandis incumbit actoris) for reparation of the alleged violations,
or failing that, the State must explain what remedies should be exhausted
or why they have not been effective. In the case under consideration,
the State has not clearly shown what suitable and effective remedy or
remedies exist that should have been exhausted by the petitioners.
Commission notes that, in effect, the State has not proven that there
is a suitable remedy capable of changing administrative decisions handed
down by the Procurator or by the JCE. Neither has the State countered
the petitioners claims that there are no mechanisms that would allow
the plaintiffs to proceed with a direct appeal.
the above-mentioned reasons, the Commission considers the petitioners
to have exhausted the remedies expressly provided for in current domestic
law, in accordance with Article 46(1) of the American Convention. Moreover,
there are no suitable domestic remedies available that need to be exhausted
before resorting to the international level and thus the exception to
exhaustion of domestic remedies provided for in Article 46(2)(a) is to
be applied in this case.
this regard, the Inter-American Court of Human Rights has pointed out:
certain exceptions to the rule of non-exhaustion of domestic remedies
are invoked, such as the remedies not being effective or due process of
law not being afforded, the implication is not only that the harmed party
is not obligated to file for such remedies, but that the State is violating
anew the obligations it has under the Convention. In such circumstances,
the question of domestic remedies draws very close to the merits.
The Commission believes that in the case under consideration, exhaustion
of domestic remedies is closely linked to the merits since the State has
the obligation to provide for effective judicial remedies, in accordance
with the American Convention. Thus the aspects of this case related to
the effectiveness of domestic remedies will be examined along with the
Taking into consideration all the elements examined, the Commission
deems that the admissibility requirement on exhaustion of domestic remedies
as stipulated in Article 46(1)(a) of the American Convention has been
b. Timeliness of
of the American Convention establishes that for a petition to be admissible,
it must be lodged within a period of six months from the date on which the party
alleging violation of his rights was notified of the final judgment.
The Commission notes that the petitioners appeared before the Commission
within the period stipulated in Article 46(1)(b) of the Convention. The
Procurators decision was made on 20 July 1998 and the petition was
lodged with the Commission on 28 October1998.
In consequence, the Commission deems that the admissibility requirement
contained in Article 46(1)(b) of the Convention stipulating that a petition
must be lodged within six months has been met.
Duplication of Procedures and Res
stipulates that for a petition or communication to be admitted by the
Commission, the subject of it cannot
be pending in another international proceeding. Article 47(d) stipulates
that the Commission shall declare inadmissible any petition or communication
that is substantially the same as one previously studied by the Commission
or by another international organization.
From the submissions of the parties and documents on file it can
be ascertained that the petition is not pending in another international
proceeding or settlement, and that it is not substantially the same as
one previously studied by the Commission or by another international organization.
The Commission thus deems that the admissibility requirements contained
in Article 46(1)(c) and 47(d) of the American Convention on Human Rights
have been met.
d. Characterization of the Alleged Facts
The Commission deems that, in principle, the acts outlined in the
petitioners statement of fact, if proven, could be characterized
as a violation of the rights guaranteed by the American Convention. The
Commission believes that the allegations of violation of the right to
nationality and the lack of suitable and effective domestic remedies must
be examined during consideration of the merits of the case.
In virtue of the above considerations, the Commission concludes
that the petition complies with the requirements of admissibility set
forth in Articles 46 and 47 of the American Convention on Human Rights.
Thus the Commission is competent to hear case No. 12,189.
Based on the arguments of fact and of law outlined above, and,
without prejudice to the merits of the case,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
Declare this case admissible with regard to the alleged violation
of the right enshrined in Article 20 of the American Convention on Human
Defer consideration of the other rights invoked by the petitioners
until examination of the merits of the case, if the facts are proven.
Notify the parties of this decision.
Continue with the analysis of the merits of the case.
Publish this decision and include it in its Annual Report to the
OAS General Assembly.
and signed by the Inter-American Commission on Human Rights on the 22nd
day of February 2001. (Signed): Claudio Grossman, Chairman; Juan Méndez,
First Vice-Chairman; Marta Altolaguirre, Second Vice-Chairwoman; Commissioners:
Hélio Bicudo, Robert K. Goldman, Peter Laurie and Julio Prado Vallejo.
Article 11 of the Political Constitution of the Dominican Republic
Dilcia Yean and Violeta Bosica are girls born in the Dominican Republic
and their respective mothers are Dominican. Dilcia was born on April
15, 1996 at the Maternidad del Seguro hospital in Sabana Grande
de Boyá, District of Monte Plata, Dominican Republic. Dilcias
mother (Leonidas Yean) and her maternal grandmother are Dominican
citizens. Violeta Bosica Cofi was born on March 13, 1985 in Sabana
Grande de Boyá. Her mother, Tiramen Bosica Cofi, was born in Batey
Las Charcas and is a citizen of the Dominican Republic, as is her
maternal grandfather, Arnold Bosica.
In 1990 at five years of age, Violeta began studies in the local school
of Batey las Charcas. Six months later she moved to Batey de Palabé,
Monoguayabo, National District. For the next two years she was not
allowed to attend school because the school administration demanded
that she submit a birth certificate. Violeta attempted to enroll in
the local school several times, but was unable to for lack of a birth
certificate. Finally she was allowed to attend adult education classes
in a school in Palabé.
The documents that the JCE requires for a belated declaration of birth
A statement from the mayor (if born in a rural area) or a certificate
from the clinic or hospital in which the child
A certificate from a church or parish stating that child was
or was not baptized.
A school certificate if the person is pursuing studies.
A certificate from the Civil Administration Offices corresponding
to the place of birth.
Copies of the identity and voter registration cards of the
parents (and if deceased, copies of the death
If the parents are married, copy of their marriage certificate.
A sworn statement (Form OC-25) signed by three witnesses over
50 years of age, who have identity and voter
registration cards (new identity card) and are capable of
signing their names.
Copies of the identity and voter registration cards of the
A letter addressed to the President of the JCE requesting a
belated declaration of birth.
A letter addressed to the President of the JCE requesting a
certificate stating whether or not the person has an
identity card. If the person in question has reached 20 years of age, another certificate stating whether or not
an identity card has been issued must be obtained at the El Huacalito Building, National District (Old identity
card, 2nd floor).
Two 2x2 photographs.
Article 11 of the Dominican Constitution stipulates that All
persons born in the territory of the Republic are Dominicans, except
the legitimate children of foreigners residing in the country as diplomatic
representatives or of foreigners in transit.
Article 9 of Law 659 on Acts of the Civil Administration states that
officials of the Civil Administration must follow the instructions
of the JCE and the Civil Administration Office, and that they are
under the immediate and direct oversight of the Procurators.
In response to a request for information submitted by the Office of
the Secretary of State for Foreign Affairs, the JCE stated on 27 September
2000 that it was not in charge of the case during the complaint procedure
and that the documents submitted to the Civil Administration Office
were not sufficient to proceed with the issuance of belated declarations.
They added that the applicants could redirect their efforts by complying
with the JCE provision establishing the requirements for belated declarations
Article 6 of the Elections Law specifies that decisions of the JCE
cannot be appealed. In addition, the Supreme Court of Justice has
said that JCE decisions cannot be annulled, modified or substituted
through actions undertaken by any other State institution. Only the
JCE itself can do so.
Article 41 of Law 659 on Acts of the Civil Administration stipulates
that, The Civil
Administration official who has received a belated declaration of
birth will immediately send a certified copy of the file to the Procurator
of the corresponding Court District, who shall investigate the case
and then remit it to the Court of First Instance. In his investigation,
the Procurator may seek any and all evidence. He may consult books
and registries, request papers pertaining to the parents (even if
deceased), hear witnesses and summon the concerned parties to appear
before him in order to decide whether or not to grant the belated
declaration. The Procurator will remit a copy of his decision to the
Civil Administration official
In this regard the Inter-American Court of Human Rights, in the Preliminary
Exceptions of the Velásquez Rodríguez Case, said, A State claiming
non-exhaustion is responsible for pointing to what domestic remedies
should be exhausted and their effectiveness. Judgment of 26
June 1987, Paragraph 88.
Inter-American Court of Human Rights, Preliminary Exceptions, Velásquez
Rodríguez Case, Judgment of 26 June 1987, Paragraph 91.