Juan Ramón Chamorro Quiroz v. Costa Rica, Case 11.495, Report No. 89/00, OEA/Ser.L/V/II.111 Doc. 20 rev. at 221 (2000).
JUAN RAMÓN CHAMORRO QUIROZ
October 5, 2000
On February 28, 1995,
the Inter-American Commission on Human Rights (hereinafter the IACHR
or the Commission) received a complaint made against the Republic
Rica (hereinafter the Costa
Rican State, the State, or Costa Rica), a submission
which was later elaborated upon by the petitioners on August 29, 1995. Both
communications reported the alleged violation, with respect to 47 Nicaraguan
citizens deported from Costa Rica to Nicaragua on February 22, 1995,
of rights enshrined in the American Convention on Human Rights (hereinafter
the Convention or the American Convention), including
that of a fair trial (Article 8) and that of judicial protection (Article
In this report, the Commission studies the case of one of the deportees,
Mr. Juan Ramón Chamorro Quiroz (hereinafter
the victim or Mr. Chamorro),
who, it is additionally claimed, also suffered a violation of his right
to humane treatment, protected by Article 5 of the Convention.
The petitioners claim that Mr. Chamorro, a Nicaraguan citizen who
was illegally inside the borders of Costa Rica, was captured on February
21, 1995, by two individuals
wearing khaki-colored uniforms and carrying M-16 rifles, one of whom assaulted
him and struck him with a club. The victim, the petitioners further report,
was deported the next day, without having been given either the time or
the opportunity to invoke domestic legal remedies or to file a complaint
before the competent authorities. Moreover, he was unable to return to the
country to do so, because he was an undocumented immigrant and lacked the
economic wherewithal. The petitioners maintain that Mr. Chamorro is undocumented
status does not justify his being refused access to justice, as was the
The State maintains that the petition is inadmissible because Costa
Ricas domestic legal remedies have not been exhausted and holds that
in the deportation operation, all applicable domestic and international
rules were followed. Mr. Chamorro could have sought a writ of annulment,
filed an appeal, or invoked habeas corpus proceedings, and he could also
have reported the aggression he allegedly suffered at the hands of agents
of the State, but he did not. Moreover, once back in his country of origin,
there was nothing preventing Mr. Chamorro from seeking, through established
legal channels, his readmission into Costa Rica in order to report the incident
to the competent authorities. With regard to the petitioners claim
that the Costa Rican authorities assaulted Mr. Chamorro, the State refutes
these allegations and reports that its immigration police do not wear uniforms
or carry weapons.
The State also maintains that all questions relating to immigration
status are matters of national sovereignty.
5. The Commission
concludes that it is competent to hear this case and that the petition is
admissible under Articles 46(2)(b) and 47 of the Convention.
POSITIONS OF THE PARTIES
The petitioners report that on February 21, 1995, the Costa
Rican authorities captured Juan Ramón Chamorro Quiroz, an undocumented immigrant
and Nicaraguan citizen of 30 years of age, who until the previous month
had been working harvesting oranges on the Guanacaste estate in Santa Cecilia,
Costa Rica. According to a statement given by the victim to the Nicaraguan
Human Rights Center (CENIDH), he was arrested at 8:00 p.m. by two
individuals wearing khaki-colored uniforms and carrying M-16 rifles,
one of whom gave him a savage beating with a club, assaulting him
over the full length of six blocks until they reached a command post.
On February 22, 1995, one day after his arrest, Mr.
Chamorro was deported to Nicaragua without having been given the opportunity
to invoke the remedies offered by domestic law or to file a complaint.
The complainants state that undocumented immigrants who are captured
are kept under arrest for several hours before being deported, and that
this arrest is an administrative measure against which no relief is admitted,
not even habeas corpus. In addition, the undocumented immigrants are directly
taken from the place of their arrest to the location where they will be
deported, a procedure which is exceedingly summary, takes place almost automatically,
and does not allow any access to justice, which is a material impossibility
irrespective of whether patently criminal actions have been committed. Moreover,
Mr. Chamorro was unable to return to Costa Rica to file the corresponding
complaint, because he was an undocumented immigrant who, precisely because
he did not have the economic wherewithal, traveled without a passport and
entered the country illegally.
According to the petitioners, Mr. Chamorro suffered torture at the
hands of agents of the State, which constitutes a violation of his right
to humane treatment as enshrined in Article
5 of the Convention. Moreover, he was prevented from reporting that incident
to the competent authorities and from invoking domestic legal remedies to
challenge the decision to deport him, which constitutes a violation of Article
25 (judicial protection) of the Convention. He was further denied the right
of having those remedies substantiated in accordance with the rules of due
legal process, which constitutes a violation of Article 8(1) of the Convention.
The claimants report that, as indicated by legal medical report No.
64-1995 (Supreme Court of Justice of Nicaragua), on February 23, 1995, forensic
physician J.R. Abad Valladares Vallejos examined Mr. Chamorro Quiroz at
Carlos Roberto Huembes Hospital in Nicaragua. The medical report
describes the bruises visible on the victims body as a result of the
blows he received and states that, it is clear that he was subjected
to a beating, with an object like a baton, an instrument carried
by Costa Rican police officers and used to inflict beatings.
According to the petitioners, responsibility for the acts of violence and
attack lay with the rural police, who wear uniforms, carry guns, and are
part of the security forces that support the immigration authorities in
capturing, arresting, and deporting undocumented immigrants. The General
Directorate of Immigration were responsible for the violations and abuses
of power. This means, according to the petitioners, that several State agents
were actively involved, thus making the State responsible.
The deportation operation, the petitioners claim, involved Capt.
Carlos Valverde, a Costa Rican immigration agent, who refused to allow Mr.
Chamorro and the other Nicaraguans to gather together their belongings or
to collect the wages they were owed prior to being expelled from the country.
According to the complainants, the expulsion took place in accordance with
the States practice of not allocating funds for feeding illegal immigrants
who are being deported, not providing transport to expedite their deportation,
and not taking steps to ensure they can collect their wages and belongings
before being expelled.
Finally, the petitioners report that Nicaraguas Head of Immigration
and Nationality sent a written protest to the Head of Immigration in Piedras
Blancas, Costa Rica, for failing to seek the support of Nicaraguan consular
authorities in connection with the entry of the Nicaraguan citizens deported
on February 22, 1995. The protest recalled the agreements on this matter
entered into by the two governments.
The Costa Rican State indicates that on February 22, 1995, in compliance
with Article 118 of the General Law on Immigration and Nationality, its
authorities carried out an operation to detect and deport all foreigners
who had clandestinely entered the country. According to Costa Rica, operations
of this kind are conducted in accordance with national and international
rules and established procedures. A file is opened for each detainee, who
is informed of the deportation decision. In addition, notice is given to
the consular officials of the countries of origin so they can record the
entry of each deportee into their national territory. The reports given
to Nicaragua regarding deportations of Nicaraguan citizens are intended
to assist that countrys immigration controls, but this does not mean
that its authorities are empowered to intervene in Costa Ricas immigration
affairs. Moreover, the General Directorate of Immigration and Nationality
works closely with the Costa Rican Red Cross so that organization can send
witnesses to monitor that, in its deportation operations, Costa Rica does
indeed respect the deportees human rights.
As for the remedies available to Mr. Chamorro, the Costa Rican State
cites annulment and appeal (Articles 107 through 112 of the General Law
on Immigration and Nationality). It adds that these apply:
all deportation cases, with the obvious exception of those in which the
foreigner entered our territory clandestinely, without observing the rules
governing his entry or admission, or when his entry into or continued presence
within the country was obtained through false declarations or documents.
Also available was the remedy of habeas corpus which, under Article
48 of the Costa Rican Constitution, guarantees a persons freedom and
physical integrity. The remedy can be sought by any person, by means of
a note, telegram, or other written means of communication, which does not
require authentication, and must be substantiated promptly (Articles 18
and 19 of the Law of Constitutional Jurisdiction, Law No. 7135 of October
11, 1989). The State claims that although domestic remedies were available
to the alleged victim and although Costa Rican law makes it very easy to
seek habeas corpus relief, Mr. Chamorro did not initiate action before the
courts of Costa Rica either on a personal basis, by means of an attorney,
or through the Costa Rican consulates operating in Nicaragua, as he could
well have done.
Consequently, the petition is inadmissible, since the alleged incidents
cannot be considered human rights violations until they have been investigated,
judged, and punished by means of the mechanisms offered by domestic law
which, in this case, have not been exhausted.
Moreover, maintains the State, the report signed by a Nicaraguan
physician does not constitute proof that Costa Rican authorities were responsible
for the injuries described therein, particularly since the petitioners fail
to identify the officials who might have participated in the incident. In
addition, as indicated in the relevant file (Costa Rican Ministry of Public
Security document No. 1098-95-DM of March 20, 1995), Mr. Chamorro was arrested
following a complaint from a resident of the town of Santa Cecilia (Santa
Cruz, Guanacaste), alleging he had made threats on several occasions and
had broken into private property belonging to two local families. Upon arrest,
the alleged victim was apparently inebriated, had a number of cuts on his
body, and was carrying no documents authorizing his presence in Costa Rica.
Thus, the State continues, if Mr. Chamorro had any sort of injury, it was
presumably caused by his drunken state, which would have left him vulnerable
to accidents of all kinds. Moreover, the petitioners have not demonstrated
any causal connection between the States actions and the injuries
suffered by Mr. Chamorroan indispensable prerequisite if the State
is to be blamed for themfor which there could be countless explanations
other than the actions of the State. In any event, the assault on Mr. Chamorro
could not be blamed on the Costa Rican immigration police whose officers,
contrary to the complainants allegations, do not wear uniforms and
are not authorized to bear arms.
In any event, says Costa Rica, Mr. Chamorro was entitled to report
the incident to the authorities, since all individuals under the States
jurisdiction can, irrespective of their nationality or status (including
illegal immigrants), report crimes committed against them or against others,
enabling the competent authorities to start an investigation. Furthermore,
the actions reported in this case constitute criminal acts, classified as
bodily harm and abuse of authority (Articles 329, 123, 124, and 125 of the
Costa Rican Criminal Code) and should be prosecuted on an ex officio basis.
Hence, had the alleged victim simply filed a complaint, either in person
or through a representative (Article 153 of the Code of Criminal Procedure),
the perpetrators would not have gone unpunished because criminal proceedings
would have begun, the exercise of which is the exclusive domain of the Department
of Public Prosecutions and which cannot be interrupted, suspended, or halted
until a final judgment is handed down.
Mr. Chamorro, however, did not report the alleged bodily harm or
abuse of authority committed by State agents while he was still in Costa
Rica. And, although he was entitled to so do, neither did he request reentry
into the country through established legal channels in order to take the
steps necessary to report those criminal acts to the competent authorities.
As for the costs which could have arisen from this, the State reports that
access to criminal justice in Costa Rica is free and that the associated
expense can ultimately be covered through the awarding of procedural and
personal costs at trial, in accordance with Articles 543 and 546 of the
Code of Criminal Procedure.
Regarding the alleged involvement of Capt. Carlos Valverde in the
deportation, the State reported that that person does not belong to the
countrys border police.
Costa Rica adds that the Nicaraguan citizens deported on February
22, 1995, (presumably including Mr. Chamorro) had entered that States
territory without proper authorization, without immigration papers, and
having eluded the checkpoints located along its border with the Republic
of Nicaragua. According to the State, these individuals:
not meet the minimum requirements set for entry into Costa Rica, and had
certainly not acquired one of the immigration statuses granted by the responsible
authorities; thus, their situation was one of absolute illegality.
cases in which the deported foreigner has entered Costa Rican territory
illegitimately, clandestinely, and with total disrespect toward our countrys
laws and sovereignty, the only possible action is his immediate deportation.
This government does not recognize the usefulness of beginning proceedings
in such cases.
The Costa Rican State further
holds that all matters relating to immigration status belong to the realm
of its national sovereignty, as has been recognized on repeated occasions
by domestic and international jurisprudence.
PROCESSING BY THE COMMISSION
On February 28, 1995,
the Inter-American Commission on Human Rights (hereinafter the Commission
or the IACHR) received a complaint against the Republic of Costa
Rica (hereinafter the Costa
Rican State, the State, or Costa
Rica), which was later elaborated upon by the petitioners on
August 29, 1995. The relevant part of the complaint was transmitted to the
State on June 15, 1995, giving it a period of 90 days to reply. The case
was duly identified as No. 11.495.
On June 29, 1995, the Commission received a note from the Costa Rican
State, dated April 25, 1995, replying to the complaint. This information
was transmitted to the petitioner on July 17 of that year.
On August 17, 1995, the Commission received a comments document from
the petitioner dated August 14, the relevant parts of which were transmitted
to the State on August 29, 1995.
On August 29, 1995, the Commission separated file Nº11.495 (Juan
Ramón Chamorro Quiroz) from that of the remaining deportees, including Messrs.
José Sánchez Guner Espinales, Sabu Alvarado Aburto, Pedro José Valle Barrera,
and Reynaldo Risby. This second file was duly identified as Nº 11.529.
On January 17, 1996, the States comments on the petitioners
remarks of January 4 were received. The relevant parts of this communication
were sent to the petitioner on January 24, 1996.
The petitioner submitted additional information in documents dated
February 26 and September 11, 1996. The State also sent additional information
on June 13, 1996, and February 21, 1997.
On September 9, 1998, the Commission asked the State to supply the
47 deportees administrative files, together with a copy of a letter
sent on February 22, 1995, to the Head of Immigration in Sapoa, Nicaragua,
by Mr. Nicolás Talavera, Head of Immigration and Nationality in Peñas Blancas,
Costa Rica, containing a list of the names of the individuals deported on
On December 24, 1998, the Costa Rican State reported, inter
alia, that it had been unable to obtain the alleged deportees
administrative files since the complaint did not provide their names and
the General Directorate of Immigration did not file its deportation records
by date but by name. Regarding Mr. Chamorro, it reported that the General
Directorate of Immigrations records contained no file for that name.
Regarding the request to submit a copy of Mr. Talaveras letter, as
described in the previous paragraph, the State reported that it was not
possible because Mr. Nicolás Talavera, Head of Immigration in Peñas Blancas,
did not keep records of the letters he signed. The relevant parts of this
information were transmitted to the petitioners on January 5, 1999, together
with a request for their comments. This request was repeated on September
In a letter dated September 19, 2000, received by the Commission
on September 20, the petitioners reported that they had reached an agreement
with the Nicaraguan Human Rights Center (CENIDH), under which the Center
would serve as a joint petitioner before the IACHR in this case. At the
Commissions request, the petitioners included a copy of the letter
from Mr. Nicolás Talavera, Head of Immigration in Peñas Blancas, Costa Rica
(which the State had been unable to provide), together with its annex, the
list of deportations carried out on February 22, 1995. On September 27,
2000, the Commission sent the State the relevant parts of this document
and its annex, giving it a period of 15 days to return its comments on the
matter. In that same communication, the Costa Rican State was informed that
the Commission had accepted the involvement of the CENIDH as joint petitioner
in the case of Mr. Juan Ramón Chamorro Quiroz, Nº 11.495.
On September 20, 2000, after receiving the list of Nicaraguan citizens
deported on February 22, 1995, the Commission once again asked the State
to submit copies of those individuals administrative files. To this
end the State was furnished a copy of the letter sent on that same date
by Mr. Nicolás Talavera, Head of Immigration and Nationality in Peñas Blancas,
Costa Rica, to the Head of Immigration in Sapoa, Nicaragua, under which
he was sending 45 Nicaraguan citizens, traveling as deportees,
together with a list of their full names. The State was provided with this
list so it could consult its deportation records which, as it had already
reported, were filed by name and not by date.
The Commissions Competence Ratione
Loci, Ratione Personae,
Ratione Temporis, and Ratione Materiae
The Commission is competent to examine the petition as submitted
by the petitioners. The allegations, if proven true, could constitute violations
of rights set forth in the Convention with respect to certain individuals
subject to the jurisdiction of the Costa Rican State, at a time when the
obligation of respecting and guaranteeing the rights enshrined in that instrument
were in force for that nation. The Commission will now proceed to analyze
whether the case at hand meets the other requirements set by Articles 46
and 47 of the American Convention.
Other Requirements for Admissibility
Exhaustion of Domestic Remedies
32. Article 46(1)(a)
of the Convention stipulates that one requirement for a petition to be admitted
is that the remedies under domestic law have been pursued and exhausted
in accordance with generally recognized principles of international law.
In the first stage of the processing of this case, the State sought
to have it ruled inadmissible on the grounds that domestic remedies had
not been exhausted, arguing that there was no proceeding or antecedent to
indicate that the alleged victim had tried to exhaust the remedies offered
by domestic law or had presented the corresponding complaint.
Although the State claimed, at the onset of this case, that the remedies
of annulment and appeal were available to the Nicaraguan citizens deported
on February 22, 1995, it later made it clear that they had no such right,
pursuant to Article 107(b) of the General Law on Immigration and Nationality,
since their situation was absolutely illegalin other words, because
that they had entered the States territory without proper authorization,
without immigration papers, and having eluded the checkpoints located along
its border with the Republic of Nicaragua.
35. The petitioners
position is that Mr. Chamorro was not materially able to invoke
domestic legal remedies before leaving the country because he was taken
directly from where he was captured to the place where he was deported.
According to the petitioners, detaining undocumented immigrants for several
hours before deporting them is an administrative measure, taken within highly
summary, almost automatic, proceedings, that does not allow them the opportunity
of filing or attempting to seek any domestic remedy, including habeas corpus.
In addition, since they had no papers and no means of economic support,
they were unable to reenter Costa Rica to formulate complaints or invoke
the applicable legal remedies, as claimed by the State.
36. Based on the
above, and considering the States own claims as set forth in paragraph
19 of this report, the Commission believes that the victim is exempted from
the requirement of exhausting the internal legal remedies of Costa Rica,
given the existence of the exception set forth in Article 46(2)(b) of the
Convention, which stipulates that paragraphs 1(a) and 1(b) thereof do not
party alleging violation of his rights has been denied access to the remedies
under domestic law or has been prevented from exhausting them.
Article 46(1)(b) of the American Convention states that for a petition
to be admitted, 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.
However, under Article 46(2)(b), the six month rule does not apply
when the alleged victim has not had access to domestic legal remedies, as
happened in the case at hand. Thus, pursuant to Article 46(2)(b) and Article
38(2) of its Regulations, the IACHR holds that the petition was submitted
within a reasonable period of time following the date upon which the alleged
rights violation took place.
c. Duplication of
Proceedings and Res Judicata
39. Articles 46(1)(c)
and 47(d) of the Convention, respectively, set the following requirements
for admissibility: that the subject of the petition or communication is
not pending in another international proceeding for settlement, and that
it is not substantially the same as one previously studied by the Commission
or by another international body.
The Commission understands the complaint is not the same as any other
petition already examined by it or by any other international body. The
Commission therefore concludes that the requirements set forth in Articles
46(1)(c) and 47(d) of the Convention have been met.
Nature of the Alleged Incident
41. Article 47(b) of the
Convention provides that any petition that does not state facts that
tend to establish a violation of the rights guaranteed by this Convention
shall be inadmissible.
42. The Commission believes
that the alleged actions, if proven true, could constitute violations of
the rights enshrined in Articles 5, 8(1), and 25 of the Convention, in conjunction
with the terms of Article 1(1) thereof.
Based on the foregoing, the Commission concludes that the requirement
set forth in Article 47.b of the American Convention has been met.
The Commission concludes that it is competent to hear this case and
that the petition is admissible under the terms of Articles 46.2.b and 47
of the Convention.
Based on the foregoing considerations of fact and law, and without
prejudging the substance of the case,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
1. To declare this petition admissible, in that it addresses
alleged violations, by the State, of Articles 5, 8(1), and 25 of the Convention, in conjunction with the terms of
Article 1(1) thereof.
To give notice of this decision to the parties.
3. To continue with its analysis of the merits of the complaint, and,
4. To publish
this decision and to include it in its Annual Report to the General Assembly
of the OAS.
Done and signed at the headquarters of the Inter-American Commission on Human Rights, in the city of Washington, D.C., on the fifth day of October, 2000. (Signed): Hélio Bicudo, Chairman; Claudio Grossman, First Vice-Chairman; Juan Méndez, Second Vice-Chairman; Commissioners Marta Altolaguirre, Robert K. Goldman, Peter Laurie, and Julio Prado Vallejo.
Costa Rica ratified the American Convention on Human Rights on April
On August 29, 1995, the Commission separated the case of Mr. Juan Ramón
Chamorro Quiroz (Nº 11.495) from that of the other alleged victims,
including José Sánchez Guner Espinales, Pedro José Valle Barrera, Reynaldo Risby Jarquin, and Sabu Alvarado Aburto.
The latter individuals case was reclassified as Nº 11.529.
Certification of Legal Medical Report No.
on February 23, 1995
by the Supreme Court of Justice of Nicaragua at the request of
Police Department No. 3. Examination conducted by forensic physician
Dr. J.R. Abad Valladares Vallejos
on Mr. Juan Ramón Chamorro Quiroz,
in order to determine: (1) the type of injuries to his person,
(2) whether the injuries received were serious or minor, and (3) whether
this citizens life was placed in danger.
Note of February 22, 1995, from Subcommander Francisco Manuel Alonso,
Head of Immigration and Nationality, Region IV, to Mr. Nicolás Talavera,
Head of Immigration in Peñas Blancas, Costa Rica.
States written reply of April 25, 1995, p. 3. See, in this regard,
Article 107 of the General Law on
Immigration and Nationality.
Under Article 5.f of the Vienna Convention on Consular Relations, which
governs consular functions, the Nicaraguan citizens who were allegedly
affected could have filed a complaint at any of Costa Ricas consular
offices in Nicaragua. In accordance
with that same provision, it would then have fallen to the consular
office, acting as an administrative office of the government, to transmit
the complaint to the Costa Rican authorities.
(See communication of the Government of Costa Rica of February 21, 1997,
in reply to a request for information made by the Executive Secretariat.)
The Costa Rican State points out that Articles 33 et
seq. of the General Law on Immigration and Nationality (No. 7033,
of August 4, 1986, as amended) regulate the different immigration statuses
or classifications under which foreigners can be allowed to stay in
the country, either as residents (on a permanent or temporary basis)
or as nonresidents. The temporary nonresidents include, inter
alia, foreign citizens whose presence has been authorized by the
competent authorities in light of particular circumstances; e.g., to
perform temporary work on farms or in industry, where the domestic workforce
is in short supply; such arrangements are formalized by means of special
permits or authorizations. The State notes that the alleged victims
were not admitted under any such circumstances.
Additional communication sent by the Costa Rican State on June 13, 1996,
and received by the Commission on July 10.