INTER-AMERICAN COURT OF HUMAN RIGHTS CASE OF THE YEAN AND BOSICO CHILDREN
V.
THE DOMINICAN REPUBLIC
JUDGMENT OF SEPTEMBER 8, 2005

In the case of the Yean and Bosico children,
the Inter-American Court of Human Rights (hereinafter “the Inter-American Court” or “the Court”), composed of the following judges:
Sergio García Ramírez, President
Alirio Abreu Burelli, Vice President
Oliver Jackman, Judge
Antônio A. Cançado Trindade, Judge, and
Manuel E. Ventura Robles, Judge

also present,

Pablo Saavedra Alessandri, Secretary, and Emilia Segares Rodríguez, Deputy Secretary, pursuant to Articles 62(3) and 63(1) of the American Convention on Human Rights (hereinafter “the American Convention” or “the Convention”) and Articles 29, 31, 37(6), 56 and 58 of the Rules of Procedure of the Court (hereinafter “the Rules of Procedure”), delivers this judgment.

I INTRODUCTION OF THE CASE

1. On July 11, 2003, the Inter-American Commission on Human Rights (hereinafter “the Inter-American Commission” or “the Commission”) submitted to the
Court an application against the Dominican Republic (hereinafter “the Dominican Republic” or “the State”), originating from petition No. 12,189, received by the
Secretariat of the Commission on October 28, 1998.

2. The Commission submitted the application based on Article 61 of the American Convention, for the Court to declare the international responsibility of the Dominican Republic for the alleged violation of Articles 3 (Right to Juridical Personality), 8 (Right to a Fair Trial), 19 (Rights of the Child), 20 (Right to Nationality), 24 (Right to Equal Protection) and 25 (Right to Judicial Protection) of the American Convention, in relation to Articles 1(1) (Obligation to Respect Rights) and 2 (Domestic Legal Effects) thereof, to the detriment of the children Dilcia Oliven Yean and Violeta Bosico Cofi1 (hereinafter “the children Dilcia Yean and Violeta Bosico”, “the Yean and Bosico children”, “the children Dilcia and Violeta”, “the children” or “the alleged victims”), with regard to the facts that have occurred and the rights that have been violated since March 25, 1999, the date on which the Dominican Republic accepted the contentious jurisdiction of the Court.

3. In its application, the Commission alleged that the State, through its Registry Office authorities, had refused to issue birth certificates for the Yean and Bosico
children, even though they were born within the State’s territory and that the Constitution of the Dominican Republic (hereinafter “the Constitution”) establishes the
principle of ius soli to determine those who have a right to Dominican citizenship. The Commission indicated that the State obliged the alleged victims to endure a situation of continued illegality and social vulnerability, violations that are even more serious in the case of children, since the Dominican Republic denied the Yean and Bosico children their right to Dominican nationality and let them remain stateless persons until September 25, 2001. According to the Commission, the child Violeta Bosico was unable to attend school for one year owing to the lack of an identity document. The Commission also alleges that the absence of a mechanism or procedure for an individual to appeal a decision of the Registry Office before a judge of first instance, and also the discriminatory acts of the Registry Office officials, who did not allow the alleged victims to obtain their birth certificate, violate specific rights embodied in the Convention. The Commission requested the Court to order the State to grant reparations that make full amends for the alleged violations of the children’s rights. It also requested that the State adopt the legislative and other measures necessary to ensure respect for the rights embodied in the Convention and establish guidelines that contain reasonable requirements for the late registration of births and do not impose excessive or discriminatory obligations, so as to facilitate the registration of Dominican-Haitian children. Lastly, the Commission requested the Court to order the State to pay the reasonable costs and expenses arising from processing the case in the domestic jurisdiction and before the organs of the Inter-American System.

II COMPETENCE

4. The Court has jurisdiction to hear the preliminary objections and possible merits, reparations and costs in this case, in the terms of Articles 62 and 63(1) of the
Convention, because the Dominican Republic has been a State Party to the American Convention since April 19, 1978, and accepted the contentious jurisdiction of the Court on March 25, 1999 (infra paras. 100 to 108 and 132).

III PROCEEDING BEFORE THE COMMISSION

5. On October 28, 1998, the Yean and Bosico children, through Genaro Rincón Miesse2 and Solain Pierre,3 General Coordinator of the Movimiento de Mujeres
Domínico-Haitianas [Movement of Dominican-Haitian Women] (hereinafter “MUDHA”), submitted a petition to the Inter-American Commission based on the “denial to [the Yean and Bosico children] of their birth certificates, which [would] allow them to have a nationality and a name; [this refusal ...] curtailed their right to an education, because, among other matters, without a birth certificate it is not possible to attend school in the [Dominican] Republic.”

6. On April 27, 1999, the Commission received an amended petition in English and a request for precautionary measures, submitted by Genaro Rincón Miesse,
representative of MUDHA, María Claudia Pulido, representative of the Center for Justice and International Law (hereinafter “CEJIL”), and by Laurel Fletcher and Roxana Altholz, representatives of the International Human Rights Law Clinic, Boalt Hall School of Law, University of California, Berkeley (hereinafter “International Human Rights Law Clinic”), as representatives of the petitioners. On June 11, 1999, the final version of the petition in Spanish was submitted to the Inter-American Commission. In it, the petitioners’ representatives alleged the violation of Articles 3, 17, 18, 19, 20, 21, 22, 23 and 24 of the American Convention, and also Articles VI, VII, VIII, XII, XVII, XIX, XX and XXIII of the American Declaration of the Rights and Duties of Man (hereinafter “the American Declaration”), because “refusing to register [the children] based [on] their legal status and the origin of their parents constitute[d] a violation of [their]
rights [...and] endangered their immediate and long-term personal safety and wellbeing.”

7. On July 7, 1999, the Commission opened the case, forwarded the pertinent parts of the petition to the State, requested it to provide information concerning the
facts and, in accordance with its Rules of Procedure in force at the time, asked the State to provide “any information that [would] enable [the Court ...] to assess whether the remedies under domestic law ha[d] been exhausted.”

8. On August 27, 1999, the Commission requested the Dominican Republic to adopt precautionary measures in favor of the children Dilcia Yean and Violeta Bosico, in order “to grant [the children] forthwith the necessary guarantees to avoid them being expelled from Dominican territory and so that Violeta Bosica (sic) m[ight] continue attending school regularly, and receiving the education offered to all other Dominican children.”

9. On August 30, 1999, the State requested the Inter-American Commission to provide it with information on “the reasons that [had] led it to request precautionary measures at this time and not previously or subsequently,” and also about any new facts that justified this request. On September 2, 1999, the Commission informed the State that the request for precautionary measures referred to a situation that “me[t] the requirements of truth and urgency, and the need to prevent irreparable harm to persons.”

10. On September 30, 1999, having been granted an extension, the State informed the Commission that “the Central Electoral Board, the organ to which the Registry Office and the officials of the civil status department are attached, ha[d] report[ed] that it had not been asked to examine the case in question, so that [...] domestic remedies ha[d] not been exhausted in the case,” and attached copies of an official letter dated September 2, 1999, addressed to the Head of the International Studies Division by the President of the Central Electoral Board, a letter dated September 20, 1999, addressed to the Inspectorate of the Central Electoral Board by Thelma Bienvenida Reyes, Civil Status Registrar, and a list of eleven requirements for late declaration of birth issued by the Central Electoral Board.

11. On September 30, 1999, also, and in relation to the adoption of precautionary measures, the State advised that “the Dominican Republic [would] never repatriate a Haitian citizen who was in the country legally, with a legal residence permit, a work permit, [or] a valid Dominican visa[,] or according to any of the conditions that have been established for accepting illegal immigrants, [such as] individuals who have been in the country for a long time, or who are related to Dominican nationals,” and that “the Directorate General of Migration [had] reiterated the provisions it had established for repatriation procedures to the corresponding departments, emphasizing [...] that the [Yean and Bosico children] should not be repatriated while the procedure of verifying the legitimacy of their arguments was underway.”

12. On October 5, 1999, the Inter-American Commission held a hearing on the precautionary measures ordered in this case, during which the petitioners’
representatives alleged that “the actions of the [State] ha[d] left the children Dilcia and Violeta without a nationality and ha[d] exposed them to the risk of immediate and arbitrary expulsion from the country in which they were born.” The State indicated that “it had never violated the law or refused to register their births[, rather] the procedure established [by law] had not been complied with;” it added that “it doubted that domestic remedies had been exhausted.”

13. On November 1, 1999, the Commission advised that “it place[d] itself at the disposal of the parties concerned with a view to reaching a friendly settlement of the matter.”

14. On December 1, 1999, the State advised the Commission that it was willing to accept the friendly settlement mechanism and put on record that “domestic remedies ha[d] not yet been exhausted.”

15. On December 2, 1999, the petitioners’ representatives alleged that “they ha[d] exhausted domestic remedies [and] ha[d] complied with the provisions of Dominican law to appeal the denied registration [..., because the children had] appealed the decision before the Public Prosecutor[, who had] rejected the appeal.” The petitioners’ representatives also alleged that the Central Electoral Board “ha[d] already considered [the registration request] and decided against the [children] and, consequently, Dilcia and Violeta ha[d] exhausted the questionable ‘appeal procedure’ before the [Central Electoral Board].”

16. On January 11, 2000, the petitioners’ representatives advised that they were willing to take part in the friendly settlement procedure proposed by the Commission.

17. On March 1, 2000, the petitioners’ representatives submitted a proposal for a friendly settlement to the Commission, requesting specific measures of satisfaction, such as: registration of the children’s births; modification of the requirements for late declaration of birth to ensure the rights of Dominican children with Haitian parents; establishment of an internal complaint mechanism to settle disputes, and the guarantee of the right to education, without any distinction based on nationality. Furthermore, with regard to compensation, they requested non-pecuniary damages for the children and their next of kin, and consequential damages for the children’s next of kin.

18. On March 6, 2000, during its one hundred and sixth regular session, the Commission held a hearing on a possible friendly settlement in this case. On that
occasion, the petitioners’ representatives reiterated the requests submitted in their proposed friendly settlement and, at the end of the hearing, they asked the
Commission to terminate the friendly settlement procedure. For its part, the State indicated that the case of the Yean and Bosico children was not an isolated case and that domestic remedies had not been exhausted. The State also advised that the registration procedure requirements established by Act No. 659 of July 17, 1944, on Civil Status Acts (hereinafter “Act No. 659”) are of a general nature and are not discriminatory, because it is a national law; accordingly, accepting the children’s request would entail violating domestic law.

19. On March 6, 2000, the State submitted a brief on the arguments presented during the hearing before the Commission and indicated that: (a) “the [State] finds it unacceptable that the [children] are attempting to obtain a birth certificate illegally [...]; a late declaration made without respecting the provisions of [Act No. 659] would be absolutely void;” (b) “the requirements of [the Central Electoral] Board are obligatory for all those on Dominican territory [and] the Public Prosecutor’s refusal to accept the [late] declaration [...] was based [...] on the fact that the obligatory legal requirements had not been fulfilled;” and (c) “the procedure exhausted by the [children] concluded with the ruling of the Public Prosecutor of the District of Monte Plata.” In this regard, article 41 of Act No. 659 establishes that “[t]he Civil Status Registrar who has received a late declaration of birth shall immediately forward a certified copy of the record to the Public Prosecutor of the corresponding judicial district, who [...] shall authorize the court of first instance [to consider the matter, and that court shall] make a ruling ratifying or not the record of the late declaration. [...] It is therefore evident that domestic remedies have not been exhausted in the instant case.”

20. On May 2, 2000, the petitioners’ representatives indicated that “they ha[d] exhausted the pertinent domestic remedies [and that] they [did] not have to exhaust any other remedy before the Central Electoral Board or any other Dominican institution, because such remedies were neither appropriate nor effective.” In this regard, they repeated that “there was no recognized procedure for making an appeal before the Central Electoral Board,” and they mentioned that article 6 of Electoral Act No. 275-97 of December 21, 1997, stipulated that the decisions of the Central Electoral Board may not be appealed. This is confirmed in the case law of the Supreme Court of Justice of the Dominican Republic (hereinafter “Supreme Court of Justice”), so there was no possibility of a judicial review of the decisions of the Central Electoral Board. Regarding compliance with article 41 of Act No. 659, they stated that, on the one hand, the remedy addressed to the Public Prosecutor was an appropriate response to the refusal of the Civil Status Registrar to issue the birth certificates and, on the other hand, “there is no legal provision establishing the obligation or the possibility” of appealing before the court of first instance, because the Public Prosecutor is responsible for transmitting late declarations to that court and “there is no provision that authorizes the [children] to do this themselves.”

21. On June 19, 2000, the State indicated that the “authorization [...] of the Public Prosecutor [was] a procedural error, because the correct procedure is the one
established in article 41 of [Act No.] 659” and that, if the representatives reject the Central Electoral Board’s authority to examine the matter, “they [should] resort to the ordinary courts.”

22. On February 22, 2001, during its one hundred and tenth regular session, the Commission adopted Report No. 28/01, in which it declared that the case was
admissible and decided to proceed to consider the merits. In this regard, the Commission stated that:

The petitioners do not have the legal standing to file judicial proceedings, since they must ask the Public Prosecutor to do this, according to article 41 of Act 659. Also, the arguments that appear in the file show that the Public Prosecutor did not authorize the judge of first instance to initiate the investigation in order to grant the late declaration of birth of the Yean and Bosico children, as established in the said article 41 of Act [No.] 659.

[…] In this case, the State has not specified in detail the appropriate and effective remedies that the petitioners should have exhausted.

[…] The State has not provided evidence that the administrative decisions of the Public Prosecutor or the Central Electoral Board may be modified by an appropriate remedy; and the State did not contradict the arguments of the petitioners with regard to the absence of mechanisms that would allow the petitioners to appear directly.

[…] The Commission considered that the petitioners had exhausted the remedies expressly established in the domestic laws in force and as established in article 46(1) of the American Convention. Also, there are no appropriate remedies in the domestic jurisdiction that should be exhausted before having recourse to the international instance, so that, in the instant case, the exception of exhaustion of domestic remedies established in Article 46(2)(a) applies.

23. On April 17, 2001, the representatives indicated that they were not interested in being a party to a friendly settlement in this case and wanted a hearing to be held in order to discuss the merits of the matter.

24. On August 24, 2001, the Commission held a meeting in the Dominican Republic attended band the representatives and the State, in order to reach a friendly
settlement. On August 27, 2001, the Commission convened a hearing on the merits of the case.

25. On October 1, 2001, the State informed the Commission that “accepting the friendly settlement proposed by the Commission, it ha[d] decided to grant birth
certificates to the children,” and attached copies of the records of the birth certificates in the names of the children Dilcia Yean and Violeta Bosico; both records were issued on September 25, 2001.

26. On October 17, 2001, the representatives informed the Commission that, even though the granting of the children’s birth certificates by the State was an important step forward, they considered that this action did not constitute a friendly settlement in this case, because, during the hearing of March 6, 2000, the State had not considered any of the points they had proposed.

27. On November 15, 2001, during its one hundred and thirteenth regular session, the Commission held a hearing on the merits of the case. The State indicated that the Dominican Republic did not have a policy of discrimination based on race or ethnic origin and repeated that “domestic remedies ha[d] not been exhausted” in this case. The State also manifested that “it ha[d] complied with the petitioners’ request to grant Dilcia and Violeta their birth certificates;” consequently, the situation that gave rise to the petition to the Commission no longer existed. During the hearing, the petitioners’ representatives stated that the harm caused to the children as a result of the discriminatory registration procedure, as well as the fact that they had lived as stateless persons for more than four years, was not remedied by the granting of the birth certificates by the State and that this action did not represent a friendly settlement, because their proposal included the adoption of other measures, such as public acknowledgement of the violations, compensating the children for the harm caused by their situation as stateless persons, and the adoption of measures to ensure non-repetition.

28. On January 31, 2002, having been granted an extension, the State submitted a brief in which it indicated that “in the interests of reaching a friendly settlement in the case and satisfying the petitioners’ basic demand, it had granted the requested birth certificates to the Yean and Bosico children] [,...] even though the petitioners [...] had not concluded the proceeding before the Public Prosecutor [...] or had recourse to a court of first instance or the Central Electoral Board.” In this regard, the State indicated that “[t]here was no provision in Dominican laws that prevented access to these bodies [, and that] what the law does not prohibit is permitted.”

29. On March 6, 2003, during its one hundred and seventeenth regular session, the Commission adopted Report No. 30/03 on the merits of the case and recommended that the State should:

a) Establish guidelines that contain reasonable requirements and do not impose excessive or discriminatory obligations in order to facilitate the registration of Dominican- Haitian children with the Registry Office officials.

b) Establish a procedure that allows the requirements established in paragraph (a) to be applied in the case of late declarations of the birth of those born on Dominican territory.

c) Create a legal mechanism that, in case of dispute, allows individuals to file their reports directly before the judicial instance, so that their complaints can be reviewed by an independent and impartial judicial organ.

d) This mechanism should provide a simple, prompt and inexpensive recourse for individuals without a birth certificate.

e) Adopt the necessary measures to ensure that the children Dilcia Yean and Violeta Bosico, and also their mothers, Leonidas Yean and Tiramen Bosico Cofi, receive adequate and timely reparation and public acknowledgement of the violations of their human rights contained in Articles 1, 2, 3, 8, 19, 20, 24 and 25 of the American Convention on Human Rights and [in] Article XII of the American Declaration of the Rights and Duties of Man. When making this recommendation, the Commission recognize[d] that the State had made an effort to remedy the situation; however, some measures remained pending.

f) Adopt the necessary measures to prevent such facts being repeated in future.

30. On March 11, 2003, the Commission forwarded this report to the State and granted it two months from the date the communication was transmitted to provide information on the measures adopted to comply with the recommendations. The same day, the Commission informed the petitioners’ representatives that it had issued Report No. 30/03 on the merits of the case, and asked them to advise it, within one month, of their position with regard to the pertinence of the case being submitted to the Inter-American Court.

31. On April 21, 2003, having been granted a fifteen-day extension, the petitioners’ representatives requested the Commission to submit the case to the Court.

32. On June 5 and July 3, 2003, having been granted an extension, the State submitted its brief on the measures adopted to comply with the recommendations
made in Report No. 30/03 on the merits of the case. The State indicated that “it had not failed to meet the obligation that the children should have a nationality, because, if they had not been granted Dominican nationality, they would be Haitian.” It stated that the petitioners “had not filed [...] their petition before the competent court ratione materiae, that [...] this was the court of first instance [...], which could have heard an ‘action to claim civil status’ and which also hears matters relating to nationality [...].” The State also indicated that the children had not had recourse “to the Central Electoral Board, which is the supreme body responsible for the Civil Status Registrars.” The State alleged that “it had not violated the rights contained in Articles 1, 2, 3, 8, 19, 20, 24 and 25 of the American Convention [… or] the right to education embodied in Article XII of the American Declaration […].” Lastly, with regard to the current requirements for making a late declaration, it advised that “the passport c[ould] be an identity document,” and attached the draft law modifying Act No. 659, and facilitating the Registry Office procedure.

IV PROCEEDING BEFORE THE COURT

33. On July 11, 2003, the Commission submitted the application to the Court.

34. The Commission appointed Susana Villarán and Santiago Cantón as its delegates and Bertha Santhoscoy and Ariel Dulitzky as its legal advisers.4 It also
indicated the names of the original petitioners: Viviana Krsticevic and Roxanna Altholz, representing CEJIL, and Laurel Fletcher, representing the International Human Rights Law Clinic.

35. On August 12, 2003, after the President of the Court (hereinafter “the President”) had made a preliminary review of the application, the Secretariat of the
Court (hereinafter “the Secretariat”) notified it to the State, with its attachments, and informed the State of the time limits for answering it and appointing its representatives in the proceeding. On the President’s instructions, the Secretariat also advised the State of its right to designate a judge ad hoc.

36. On August 11, 2003, as established in Article 35(1)(d) and (e) of the Rules of Procedure, the Secretariat notified the application to MUDHA, CEJIL and the
International Human Rights Law Clinic, as representatives of the alleged victims and their next of kin5 (hereinafter “the representatives”), and informed them of the time limit for submitting their brief with requests, arguments and evidence (hereinafter “brief with requests and arguments”).

37. On September 3, 2003, the State appointed Ambassador Rhadys Abreu de Polanco Judge ad hoc and indicated that “[her] functions are not incompatible with her designation as judge ad hoc.” The State also designated José Marcos Iglesias Iñigo, Minister Councilor, as Agent, and Anabella de Castro, Minister Councilor, Responsible for Human Rights, as Deputy Agent.6

38. On October 13, 2003, having been granted an extension, the representatives submitted their brief with requests and arguments. The representatives alleged that, in addition to the rights indicated by the Inter-American Commission in the application, the State had allegedly violated the rights embodied in Articles 17 (Rights of the Family), 18 (Right to a Name) and 26 (Progressive Development) of the American Convention, in relation to Articles 1(1) (Obligation to Respect Rights) and 2 (Domestic Legal Effects) thereof. They also requested the Court to order the State to adopt specific measures of reparation and reimburse costs and expenses. Subsequently, in their final written arguments submitted on April 14, 2005, the representatives indicated that the State had violated Articles 5 (Right to Humane Treatment) and 12 (Freedom of Conscience and Religion) of the American Convention (infra para. 49).

39. On November 13, 2003, the State submitted its brief filing preliminary objections, answering the application and with observations on the brief with requests
and arguments (hereinafter “brief answering the application”), in which it filed two preliminary objections, which it called “[…] failure to exhaust the State’s domestic remedies […]” and “[n]on-compliance [with the] friendly settlement [proposal] submitted by the Commission and accepted by the State […].” Subsequently, during the public hearing, the State alleged the preliminary objection of lack of competence ratione temporis.

40. On November 19, 2003, the representatives presented an “objection to the State’s designation of Ambassador Rhadys I. Abreu de Polanco, as Judge ad hoc of the Court,” and indicated that there was a situation of incompatibility and conflict of interests. On December 19, 2003, Rhadys I. Abreu de Polanco presented a note in which she rejected the objection to her designation as judge ad hoc. On December 19, 2003, the Commission forwarded its comments on the brief on the objection of the Judge ad hoc and requested the Court “to proceed to decide on the incompatibility and impediment” of Mrs. Abreu de Polanco to exercise the position of judge ad hoc.

41. On May 4, 2004, the Court issued an Order in which it decided that “the participation of Rhadys Iris Abreu de Polanco in the proceeding before the Inter-
American Commission with regard to this case resulted in an impediment to her exercising the functions of Judge ad hoc.” It therefore invited the State to designate
another judge ad hoc within 30 days; the Dominican Republic did not do so.

42. On January 21, 2004, having been granted an extension, the Commission and the representatives submitted their respective briefs with arguments on the
preliminary objections filed by the Dominican Republic, in which they requested the Court to reject them and to continue processing the merits stage of the case.

43. On January 10, 2005, the State appointed Ambassador Rhadys I. Abreu de Polanco as Deputy Agent for the case.

44. On January 31, 2005, the President issued an Order in which, pursuant to Article 47(3) of the Rules of Procedure, he called upon the children Dilcia Yean and Violeta Bosico, and also Tiramen Bosico Cofi, Teresa Tucent Mena (infra note 45), Leonidas Oliven Yean and Samuel Martínez, proposed by the Commission and the representatives, the first five persons as witnesses and the sixth person as an expert witness, to make their statements and report in the form of an affidavit (a statement before a notary public). He also granted the State a non-extendible period of seven days after receipt of the affidavits to present any comments it deemed pertinent. Furthermore, the President convened the Commission, the representatives and the State to a public hearing to be held at the seat of the Court starting on March 14, 2005, to hear their arguments on preliminary objections and possible merits, reparations and costs, and to hear the testimony of Genaro Rincón Miesse, Amada Rodríguez Guante and Thelma Bienvenida Reyes, and the expert reports of Frederick John Packer and Débora E. Soler Munczek, offered by the Commission, the representatives and the State, as applicable. He also informed the parties that they had until April 14, 2005, to submit their final written arguments.

45. On February 15, 2005, the representatives presented the authenticated statements made by the six persons mentioned in the preceding paragraph.

46. On February 23, 2005, the State observed, with regard to the statements presented band the representatives, that “there [were] contradictions between the
facts stated and the evidence before [the Court],” and that the State “reserved the right to specify these during the public hearing to be held on March 14 and 15[, 2005. It also indicated...] that the absence of [the alleged victims] would alter the procedural equilibrium and denaturalize the adversarial nature of the public hearing.”

47. On March 14 and 15, 2005, during the public hearing, the Court received the statements of the witnesses and the expert reports of the expert witnesses proposed by the parties, and heard the arguments of the Commission, the representatives and the State on preliminary objections and possible merits, reparations and costs. There appeared before the Court: (a) for the Inter-American Commission: Ariel Dulitzky, Juan Pablo Albán and Lilly Ching, legal advisers; (b) for the representatives: Laurel Fletcher, of the International Human Rights Law Clinic, Solain Pierre and Moisés Medina Moreta, of MUDHA, and Viviana Krsticevic, Roxanna Althoz and Alejandra Nuño, of CEJIL, and (c) for the State: José Marcos Iglesias Iñigo, Agent, Rhadys I. Abreu de Polanco, Deputy Agent, Julio César Castaños Guzmán and Adonai Medina, advisers, and Rafael González, assistant. The following appeared as witnesses: Genaro Rincón Miesse, proposed by the Commission and the representatives, and Amada Rodríguez Guante and Thelma Bienvenida Reyes, proposed by the State; and as expert witnesses: Débora E. Soler Munczek and Frederick John Packer, proposed by the Commission and the representatives.

48. On March 14, 2005, the representatives submitted some documents they indicated were supervening evidence, in accordance with Article 43(3) (sic) of the
Rules of Procedure.

49. On April 14, 2005, the representatives presented their final arguments in English, together with the respective attachments and, on April 28, 2005, they forwarded the respective translation into Spanish. On April 14, 2005, the State remitted its final written arguments and the attachments. On April 15, 2005, the
Commission forwarded its final written arguments.

50. On August 3, 2005, on the instructions of the President and in accordance with Article 45(1) of the Rules of Procedure, the Secretariat requested the Commission, the representatives, and the State to forward the following documents it considered would be helpful: Resolution No. 5-88 of the Central Electoral Board of June 8, 1988; Act No. 8-92 of April 13, 1992, [and a copy of] the documents provided by Genaro Rincón and Marcelino de la Cruz as attachments to the document: ‘declaration requesting authorization for late declaration’ submitted to the ‘Judge of the Court of First Instance of the Judicial District of Monte Plata’ on September 11, 1997.”

51. On August 16, 17 and 26, 2005, respectively, the State, the representatives, and the Commission presented some of the documents requested by the Secretariat as helpful evidence.

52. On September 5, 2005, the State submitted a brief with observations (and some attachments), on the documents forwarded band the representatives on August 17, 2005, “to help the Court decide.”
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53. On January 31, February 15 and 25, March 2, 14 and 25, April 1, 13 and 14, and June 3, 2005, the Court received amici curiae from the following persons,
organizations and institutions:

a) Centre on Housing Rights and Evictions (COHRE);

b) Asociación Civil de Centros Comunitarios de Aprendizaje (CECODAP);

c) Comité de América Latina y el Caribe para la Defensa de los Derechos de la Mujer (CLADEM);

d) Minority Rights Group International (MRG);

e) Katarina Tomasevski;

f) Secretaría Ampliada de la Red de Encuentro Domínico Haitiano Jacques Viau (RED), consisting of the Centro Cultural Domínico Haitiano (CCDH), the Movimiento Sociocultural de los Trabajadores Haitianos (MOSCTHA), the Servicio Jesuita a Refugiados y Migrantes (SRJM-RD), the Centro Dominicano de Investigaciones Legales (CEDAIL) and the Asociación Pro- Desarrollo de la Mujer y el Medio Ambiente, Inc. (APRODEMA);

g) Comparative International Education Society (CIES);

h) Themis Foundation, in collaboration with the University of Ottawa School of Law;

i) Open Society Justice Initiative, and

j) Centro de Estudios Legales y Sociales (CELS), Servicio de Apoyo y Orientación a Inmigrantes y Refugiados (CAREF), Clínica Jurídica para los Derechos de Inmigrantes y Refugiados (Law School of the Universidad de Buenos Aires, CELS and CAREF) and Christian Courtis, Professor of the Universidad de Buenos Aires and the Instituto Tecnológico Autónomo de México.

54. On April 4 and 15 and on June 7, 2005, the Secretariat forwarded copies of these amici curiae to the Commission, the representatives, the State, and the persons, organizations and institutions.

V PRELIMINARY OBJECTIONS

55. The State filed the following preliminary objections: “[…] failure to exhaust the State’s domestic remedies […]” and “[n]on-compliance with the friendly settlement [proposal] presented by the Commission and accepted by the State […]” in its brief answering the application. Subsequently, during the public hearing held at the seat of the Court on March 14 and 15, 2005, the State alleged the preliminary objection of the Court’s “[l]ack of competence ratione temporis.”
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FIRST PRELIMINARY OBJECTION

Failure to exhaust the State’s domestic remedies

Arguments of the State

56. The State argued that:

a) This preliminary objection was duly filed before the Inter-American Commission during the first stages of the proceeding as evidenced by, among other elements, “documents and communications prepared by the State[, such as] the note dated September 28 1999 [submitted to the Commission on September 30, 1999; the [record of the hearing [held on] October 5, 1999, [...] at the seat of the [Commission, and the] note of November 22, 1999 [submitted to the Commission on December 1, 1999].” Even though this objection was rejected by the Commission, the Court is competent to hear it;

b) The most appropriate domestic remedy in this case is the hierarchic recourse that exists in administrative law, established in article 1 of Act No. 1494 of August 2, 1947. This remedy should be filed before the superior administrative instance to the one that committed the alleged violation, in this case the Central Electoral Board. The alleged victims did not make use of this remedy;

c) The Public Prosecutor’s intervention is part of the late declaration procedure and is not an instance before which a remedy should be filed. “When a procedure is carried out before a civil status registrar, the latter (not the parties) forwards the file to the Public Prosecutor so that the latter may issue his opinion and the court of first instance decides whether or not to ratify the late declaration.” The action filed by the representatives before the Public Prosecutor of the Judicial District of the Province of Monte Plata on September 11, 1997, does not constitute filing a hierarchic recourse. In these procedures, this step is only deemed to be a consultation, so that the Public Prosecutor may make a recommendation to the court of first instance designated to hear the late declaration proceeding;”

d) The alleged victims did not exhaust the remedy of review before the Civil Status Registrar, nor did they file the matter directly with the court of first instance with jurisdiction to hear all matters concerning human rights;

e) The alleged victims did not file an application for amparo [an action for the protection of constitutional rights] although this has existed in the Dominican Republic since 1978, when the State ratified the American Convention. In 1999, the “Supreme Court of Justice established in a judgment that the procedure for applications for amparo was the same as the procedure for civil matters;” however, prior to this ruling, several courts had already heard amparo actions;

f) The alleged victims did not file an action for unconstitutionality against the norm that denied them access to recognition of their nationality, and

g) The Court should declare that it lacked jurisdiction to hear this case, because the State has appropriate mechanisms and opportunities for settling this dispute.

Arguments of the Commission

57. The Inter-American Commission stated that:

a) Articles 46 and 47 of the American Convention stipulate that it is the Commission, as one of the principal organs of the system, that determines whether a petition is admissible;

b) The arguments presented by the State concerning the failure to exhaust domestic remedies are time-barred and unfounded; they seek to return the proceeding to the stage prior to the admissibility of the petition, which is precluded, because the Commission, with strict respect for the adversary principle, has considered the arguments of both parties together with the information and documentation in the file, and has decided to declare the case admissible on the grounds set out in the admissibility report;

c) The State’s “new” position concerning non-exhaustion of domestic remedies, in which it indicated that the hierarchic recourses of amparo and unconstitutionality, which were not mentioned during the admissibility stage before the Commission, are the “existing” remedies, continues to be without merit, because it is time-barred. The State has not proved that such remedies are effective, and has merely mentioned their existence;

d) With regard to the hierarchic recourse before the Central Electoral Board, which is of an administrative nature, Dominican legislation does not provide for the possibility of those whose request for a late registration of birth has been rejected being able to file a remedy of appeal or an appeal for revision before the Central Electoral Board. Since [the petitioners] had been unable to comply with the basic requirements for obtaining a late registration of birth, and bearing in mind that the Central Electoral Board does not consider requests for registration that are submitted without the required documentation attached, a possible appeal before this body would not have been effective;

e) When the facts of the case occurred, the laws contained no provision allowing an individual to appeal the decision of the Public Prosecutor before a court of first instance. According to Act No. 659, the Public Prosecutor is the person responsible for submitting late declarations to the court of first instance and, in this case, he did not do so. The request for late registration was rejected by the Public Prosecutor on July 20, 1998, and this closed the way to the possibility of resolving the problem, since the alleged victims were not entitled to bring a legal action in order to reverse the administrative authority’s decision;

f) At the time of the facts, Dominican law had not established a remedy of amparo. On February 24, 1999, almost two years after the registration of the alleged victims was rejected, the Supreme Court of Justice created the remedy of amparo, through its case law; this recourse can be filed within 15 days of the alleged harmful act. It is not possible to require the exhaustion of a remedy that was not expressly established by law;

g) The remedy of unconstitutionality is of an extraordinary nature and, in general, only remedies that are appropriate to protect the juridical situation that has been violated must be exhausted. The validity of this remedy against administrative acts was decided by the Supreme Court of Justice on August 8, 1998;

h) During the public hearing before the Court in this case, the State invoked the non-exhaustion of the remedy of an appeal for review before the Civil Status Registrar, and the direct remedy based on “full jurisdiction” before a court of first instance. However, based on the estoppel principle, the State was barred from alleging these remedies for the first time at that hearing; and

i) The discussion concerning whether “there are effective and appropriate remedies that the parties have not filed at the domestic level,” raised by the State as a preliminary objection, is an element of the central dispute submitted to the Court, so that “resolving this question does not correspond to the characteristics of a preliminary objection.”

Arguments of the representatives

58. The representatives argued that:

a) According to Articles 46 and 47 of the American Convention, the Commission is empowered to determine the admissibility of a petition and decide on the exhaustion of domestic remedies. Once the Commission has taken a decision on the admissibility of a case, having examined the arguments of the parties, this decision is of a “final” and “indivisible” nature;

b) The Dominican Republic did not argue the failure to exhaust domestic remedies during the initial stages of the proceeding before the Commission. In this regard, it should be noted that the State provided several responses during the admissibility stage before the Commission, such as those of September 30, 1999; November 22, 1999, submitted to the Commission on December 1, 1999, and June 7, 2000, submitted to the Commission on June 19, 2000, in which it maintained that domestic remedies had not been exhausted and that the children should resort to the Central Electoral Board and to the ordinary courts; it never mentioned the remedy of amparo or the remedy of unconstitutionality;

c) The hierarchic recourses established in Dominican administrative law were neither appropriate nor effective, and were not alleged at the appropriate time;

d) The Central Electoral Board is the administrative authority responsible for recording registrations; an informal appeal before this body does not constitute an effective remedy, since this is a discretional procedure. The Central Electoral Board is an autonomous body that makes decisions against which there is no appeal, that does not have any formal procedures and that has not published regulations or established procedures that petitioners may use to request a review of an adverse decision of the Civil Status Registrars. Furthermore, the law does not grant the Central Electoral Board authority to consider individual cases decided by the Civil Status Registrars. The only remedy established by the laws in force when the facts occurred for appealing the rejection of a registration request was the appeal before the Public Prosecutor;

e) In the Dominican Republic, the remedy of amparo is not regulated in any specific law. It is part of positive law based on the judgment of the Supreme Court of Justice of February 24, 1999. The State has not proved that this remedy is effective, and

f) The State has not proved that the remedy of unconstitutionality is effective, since enabling regulations for its implementation have not been issued.

Considerations of the Court

59. The American Convention establishes that the Court has full jurisdiction over matters relating to the cases submitted to it, including the rules of procedure on which its capacity to exercise its jurisdiction are based.7

60. Article 46(1)(a) of the Convention establishes that, to determine the admissibility of a petition or communication lodged before the Inter-American Commission in accordance with Articles 44 or 45 of the Convention, the remedies under domestic law must have been pursued and exhausted in accordance with generally recognized principles of international law.8 This means that these remedies must not only exist formally, but also that they must be appropriate and effective, as a result of the objections established in Article 46(2) of the Convention.9

61. The Court has already established clear criteria to be followed when filing the objection of failure to exhaust domestic remedies. Based on the generally recognized principles of international law, to which the rule of exhaustion of domestic remedies refers, it is clear: first, that the defendant State can waive its right to invoke this rule expressly or tacitly. Second, the correct moment for introducing the objection of failure to exhaust domestic remedies is during the admissibility stage of the proceeding before the Commission; in other words, before any consideration of the merits of the case; to the contrary, it is assumed that the State has tacitly waived its right to invoke it. Third, the Court has stated that the failure to exhaust domestic remedies is a simple matter of admissibility and that the State which alleges it must indicate the domestic remedies that have to be exhausted, and also prove that those remedies are adequate and effective.10

62. In the instant case, the State made three different assertions in relation to the failure to exhaust domestic remedies. During the admissibility procedure before the Commission it merely indicated that domestic remedies had not been exhausted, because “the Central Electoral Board […] ha[d]not been seized of the case,” and that the representatives ‘‘should […] have recourse to the regular courts” (supra paras. 10 and 21). During the procedure before the Commission on the merits of the case, on January 31, 2002, the State indicated that the alleged victims “had not concluded the proceeding before the Public Prosecutor [...], or had recourse to a court of first instance or to the Central Electoral Board” (supra para. 28). Lastly, during the proceeding before the Court, in its brief answering the application, the State alleged that the hierarchic, amparo and unconstitutionality remedies had not been exhausted; and, during the public hearing, that the remedy of appeal for revision was pending exhaustion before the Civil Status Registrar and before the court of first instance.

63. With regard to the position of the Dominican Republic, in its Admissibility Report No. 28/01 issued on February, 2001, the Commission noted that, on the one hand, “the State had not shown that administrative decisions made by the Public Prosecutor, or by the Central Electoral Board admitted an appropriate remedy to modify them;” and it had not established that there were mechanisms allowing petitioners to appeal directly to these bodies. Consequently, it stated that there were no appropriate remedies in the domestic jurisdiction that could be exhausted in relation to the procedure of late declaration of birth. The Commission also stated that, according to the Dominican laws it was aware of, the alleged victims did not have legal standing to bring an action, since it was the Public Prosecutor who should do so according to Article 41 of Act No. 659, and that, in the instant case, the Public Prosecutor did not empower the judge of first instance to initiate an investigation in order to allow the late declaration of birth of the alleged victims.

64. The Court considers that, according to the above criteria (supra paras. 60 and 61), by not specifying the appropriate and effective remedies that should have been exhausted during the admissibility procedure before the Inter-American Commission, the State implicitly waived its right to a means of defense that the American Convention establishes in its favor and tacitly admitted the inexistence of such remedies or their due exhaustion.11 In view of the foregoing, the State was barred from alleging the failure to exhaust the hierarchic recourses, and the remedies of amparo, unconstitutionality and appeal for revision before the Civil Status Registrar and before the court of first instance, in the proceeding before the Court.

65. Consequently, and bearing in mind the Inter-American Commission’s reasoning, which is consequent with the relevant provisions of the American Convention, the Court rejects the first preliminary objection filed by the State.

*
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SECOND PRELIMINARY OBJECTION
Non-compliance with the friendly settlement presented by the Commission and accepted by the State

Arguments of the State

66. The State argued that:

a) On November 1, 1999, the Commission made itself available to the parties to reach a friendly settlement, a procedure accepted by the Dominican Republic and, in this context, the representatives made demands, which it considered “[went] far beyond the purpose of a friendly settlement;”

b) On August 24, 2001, the State, the Commission and the representatives met in Santo Domingo, the Dominican Republic, at the offices of the Central Electoral Board, in order “to resolve this case,” and

c) On September 25, 2001, the State delivered the birth certificates to the children Dilcia Yean and Violeta Bosico. However, the representatives have not
wanted to accept that the delivery of the birth certificates was the result of the friendly settlement. In this case, Article 49 of the American Convention should
be applied, based on the Commission’s credibility before the States, and the application should be rejected.

Arguments of the Commission

67. The Commission argued that:

a) As of November 1, 1999, it urged the parties to commence a procedure with the purpose of achieving a friendly settlement. Given the positions of the
representatives and the State, it considered that the negotiations were terminated following the meeting held in the Dominican Republic on August 24, 2001;

b) It is obvious in this case that, despite the pertinent efforts of the parties, a friendly settlement was not reached, because the representatives withdrew and because the State indicated that it could not accept it. Consequently, it is incomprehensible that the State should request the application of Article 49 of the American Convention to avoid the Court hearing the merits of the case;

c) Bearing in mind that the alleged victims are the fundamental purpose of the Inter-American System, the representatives’ declaration that the granting of the birth certificates by the State did not constitute a friendly settlement is a determining factor. This procedure was important for resolving the instant case, but it is not the only matter under discussion. Since one of the parties to the procedure manifested that it did not wish to continue with the negotiations to reach a friendly settlement, the Commission had no alternative but to proceed to examine the merits of the case, pursuant to the provisions of Article 50(1) of the Convention;

d) Although the State took certain steps designed to remedy at least in part the violations committed to the detriment of the alleged victims – the importance of which was duly acknowledged by the Commission – these steps did not constitute comprehensive, adequate and, above all, final reparation, and

e) It had complied with its treaty-based, statutory and regulatory obligations in relation to the friendly settlement procedure in this case, so that the arguments presented by the State in this regard are unfounded.

Arguments of the representatives

68. The representatives stated that:

a) The State unilaterally granted the children birth certificates in September 2001, outside the framework of a friendly settlement. This action did not resolve the case, because it will not be resolved until the alleged human rights violations have been acknowledged and totally repaired. In addition to the delivery of birth certificates, the friendly settlement proposal included the following points: financial compensation, public acknowledgement of the violations allegedly committed, modification of the requirements for late registration of births, and establishment of a judicial mechanism for resolving complaints. However, each attempt failed, owing to the State’s reluctance to repair the alleged violations comprehensively, and

b) The Dominican Republic has never acknowledged its responsibility for the violations that were allegedly committed; it denied this in the proceeding before
the Commission, and it is now denying it before the Court.

Considerations of the Court

69. The Court observes that the Commission indicated that on November 1, 1999, it made itself available to the parties in order to reach a friendly settlement. On
December 1, 1999, and on January 11, 2000, the State and the representatives, respectively, agreed to accept this procedure. On March 1, 2000, the representatives submitted a proposal for a friendly settlement that contained various demands. On March 6, 2000, the Commission held a hearing in order to examine the possibility of reaching a friendly settlement. During this hearing, the representatives reiterated their proposal and the State indicated that it could not comply with it, because “accepting the petitioners’ request [would] involve violating domestic law.” Then, on February 22, 2001, the Commission adopted Admissibility Report No. 28/01 in which it again put itself at the disposal of the parties to reach a friendly settlement. On April 17, 2001, the representatives informed the Commission that they were not interested in reaching a friendly settlement. Finally on August 24, 2001, the Commission held a meeting in Santo Domingo, the Dominican Republic, with the State and the representatives, but a friendly settlement was not reached.

70. On October 1, 2001, the State informed the Commission that on September 25, 2001, it had delivered birth certificates to the children Dilcia Yean and Violeta Bosico.

71. On October 17, 2001, the representatives informed the Commission that the State had delivered birth certificates to the alleged victims, and indicated that this
action did not constitute a friendly settlement because, during the hearing of March 6, 2000, the State had not considered any of the points they had proposed.

72. The Court deems that in order to reach a friendly settlement there must be a basic consensus among the parties, which shows their willingness to end the dispute on the merits of the matter and the possible reparations and this has not occurred in the instant case.

73. The Court observes that, in this case, the Commission made itself available to the parties to reach a friendly settlement, and the representatives and the State
agreed to accept this procedure. The representatives made a proposal for a friendly settlement during the procedure. However, the State did not accept it and stated that “the petitions [of the representatives] [went] far beyond the purpose of a friendly settlement.” The Commission also indicated that it considered negotiations had concluded, because a friendly settlement had not been reached, following the meeting held in the Dominican Republic on August 24, 2001, with the participation of the representatives of the State, the children and the Commission. On September 25, 2001, the State granted birth certificates to the children. However, on October 17, 2001 the representatives indicated that the State’s action did not constitute a friendly settlement, because their proposal involved the adoption of other measures; they also reiterated that the action was not carried out within a formal friendly settlement procedure.

74. From the above, it is clear that the friendly settlement procedure did not conclude with an express agreement of the parties to settle the matter. Consequently,
the Court rejects the second preliminary objection filed b the State.
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THIRD PRELIMINARY OBJECTION
Lack of competence ratione temporis

Arguments of the State
75. The State argued that:

a) The alleged violation of the rights of the Yean and Bosico children occurred on March 5, 1997, and the State accepted the contentious jurisdiction of the Court on March 25, 1999; namely, two years after the alleged violation;

b) The Court has established that it cannot exercise its contentious jurisdiction to apply the Convention when the alleged facts occur before the Court’s jurisdiction has been accepted, and

c) Although the State did not invoke this preliminary objection at the due moment, the Commission did invoke it opportunely, and the Court should therefore rule on it.

Arguments of the Commission

76. The Commission did not refer to this preliminary objection.

Arguments of the representatives

77. The representatives stated in their final oral arguments during the public hearing that the State’s attempt to file a new preliminary objection was time-barred.
Considerations of the Court

78. With regard to the argument of the State concerning the Inter-American Court’s alleged lack of competence rationae temporis to hear the facts of this case that occurred on March 5, 1997, before the State accepted its contentious jurisdiction, the Court reiterates that, as any organ with jurisdictional functions, it has the power inherent in its attributes to determine the scope of its own competence, because by accepting its jurisdiction the States undertake to accept the Court’s right to decide any dispute concerning its jurisdiction12 according to the provisions of Article 62(1) of the American Convention. Consequently, the Court will take into consideration both the date of acceptance of its contentious jurisdiction by the Dominican Republic, and the principle of non-retroactivity, established in Article 28 of the 1969 Vienna Convention on the Law of Treaties in order to determine the scope of its competence in this case (infra paras. 100 to 108 and 132).

79. In view of the above, the Court rejects the third preliminary objection filed by the State.

VI EVIDENCE

80. Before examining the evidence provided, the Court will make some observations, in light of the provisions of Articles 44 and 45 of the Rules of Procedure
which have been developed in its case law and are applicable to this case.

81. The adversary principle, which respects the right of the parties to defend themselves, applies to matters pertaining to evidence. This principle is embodied in
Article 44 of the Rules of Procedure, as regards the time at which the evidence should be submitted to ensure equality between the parties.13

82. According to the Court’s practice, at the commencement of each procedural stage, the parties must indicate the evidence they will offer at the first opportunity
they are given to communicate with the Court in writing. Moreover, in exercise of the discretional powers included in Article 45 of its Rules of Procedure, the Court may request the parties to provide additional probative elements as helpful evidence; and this shall not provide a new opportunity for expanding or completing the arguments or offering fresh evidence, unless the Court expressly permits it.14

83. In the matter of receiving and assessing evidence, the Court has indicated that its proceedings are not subject to the same formalities as domestic proceedings and, when incorporating certain elements into the body of evidence, particular attention must be paid to the circumstances of the specific case and to the limits imposed by respect for legal certainty and the procedural equality of the parties. Likewise, the Court has taken account of international case law; by considering that international courts have the authority to assess and evaluate the evidence according to the rules of sound criticism, it has always avoided a rigid determination of the quantum of evidence needed to support a judgment. This criterion is true for international human rights courts, which have greater latitude to assess the evidence on the pertinent facts, in accordance with the principles of logic and on the basis of experience.15

84. Based on the foregoing, the Court will now proceed to examine and weigh the documentary probative evidence forwarded by the Commission, the representatives and the State at different procedural opportunities or as helpful evidence requested by the Court and its President, as well as the expert evidence and testimony provided to the Court during the public hearing, all of which constitute the body of evidence in this case, according to the principle of sound criticism within the applicable legal framework.

A) DOCUMENTARY EVIDENCE

85. The Commission and the representatives forwarded authenticated statements and a report, in response to the President’s request in his Order of January 31, 2005, (supra para. 44). These statements and the report are summarized below.

Statements

a) Proposed by the Inter-American Commission and the representatives

1) Violeta Bosico, alleged victim

She was born on March 13, 1985, in the Social Insurance Maternity Clinic in Sabana Grande de Boyá, the Dominican Republic. Her mother is Tiramen Bosico Cofi and her father is Delima Richard.

The witness lives with her sister, Teresa Tucent Mena, and her family in Batey Palavé in Manoguayabo. She attends second year of secondary school during the evening session at the Manoguayabo School. She hopes to be the first person in her family to go to university.

2) Tiramen Bosico Cofi, mother of the child Violeta Bosico

She was born on October 24, 1956, in Batey Las Charcas in Sabana Grande de Boyá, the Dominican Republic. She has six children: Teresa, Daisy, Violeta, Heriberto, Rudelania and Esteban. The witness gave an explanation concerning the names of her children. She referred to the difficulty in registering her daughters, Violeta and Daisy. She had to obtain a “document” from the mayor saying that Violeta had been born at home, when she was really born in the Social Insurance Maternity Clinic in Sabana Grande de Boyá. She did this because the Maternity Clinic was too far away from her home and she did not have the time or money to visit it in order to obtain the evidence that Violeta was born there.

The witness indicated that it was easier to obtain the documents for some of her children than for others. She said it was easier to register her children, Heriberto and Rudelania, because their father is from the Dominican Republic, had an identity document and accompanied her to register them. When registering Esteban, she encountered the same problems as with Violeta and Daisy. When she went with representatives of MUDHA to register Violeta and Daisy, they also wanted to register Esteban but could not.

Two of her children, Daisy and Esteban, still have no birth certificates. Daisy is very afraid of being away from her home or community because she has no documents and she thinks that she could be detained at any moment. Daisy stopped going to school because she knew that she was not going to be able to take the national examinations in eighth grade since she had no documents. Daisy has two children who are undocumented, because she herself has no documents. The witness has not attempted to register her children, Daisy and Esteban, again, because she does not have the money and is unable to take time off from work to travel to obtain all the documents that are required; also does not know whether she will be able to register them even when she has all the documents.

Immigration officials continue to detain and deport people who do not have documents or “more exactly, because they are dark-skinned.” The witness indicated that, if she were detained, she would not give up her identity document, in case they tore it up and she would have no documents. She would prefer to be taken to Haiti with her documents so that she could return to the Dominican Republic. She has been very frightened that something could happen to her family because they are involved in this case.

Lastly, the witness indicated that there is nothing that could compensate them for all that has happened, but at least she hopes that they are compensated for all the time spent and expenses incurred because of this case, and that Violeta is granted a scholarship so she can continue studying at university.

3) Teresa Tucent Mena, sister of the child Violeta Bosico

She was born on July 7, 1974. She is the daughter of Tiramen Bosico Cofi, and the sister of Violeta Bosico, who lives with the witness in Batey Palavé. She clarified that her correct last name is Tucent Mena, and not Tuseimena.

The witness believes that, to resolve this case and to solve the registration problems, it would be fair if undocumented mothers could declare or register their children just by going in person and providing documentary evidence that their child had been born in the Dominican Republic.

She hopes that her sister Violeta will be able to go to university, because they are very poor and it would be good if she had a scholarship to continue studying.

She is sometimes afraid when something related to this case is published in the national media, because she knows there are people who say that the witness and her family are denouncing the Dominican Republic and causing problems because of this case. This is why she is afraid that something bad could happen.

4) Dilcia Yean, alleged victim

Her mother is Leonidas Oliven Yean. She is 8 years old. She lives in her aunt’s house in Santo Domingo. She is currently in first grade at school, but she will enter second grade when this school year is over, because she is doing well. When she grows up she wants to work in an office near her family and be a lawyer to help others.

5) Leonidas Oliven Yean, mother of the child Dilcia Yean

She was born on August 24, 1972, in Batey Enriquillo, Sabana Grande de Boyá, the Dominican Republic. Since 2001, she has lived in Santo Domingo in the home of her brother, Rufino.

She registered her daughter, Magdalena, in October 2004. To do this, she was asked for her identity card, witnesses, a document from the church and a document from the mayor. To solve the problems relating to the birth registration of children, the State should register children in the schools.

Expert reports

b) Proposed by the representatives

1) Samuel Martínez, anthropologist

Dominican-Haitians are struggling not only for legal citizenship but also for cultural citizenship, for a more widespread recognition that they are part of the Dominican Republic and so that, legally, they are part of this country. Cultural citizenship is a broad expression created by legal scholars and social scientists in order to describe those undeclared assumptions about individuals who, in terms of race, ethnic affiliation and class, belong wholly to the nation, and to define their fundamental identity. Exclusion from cultural citizenship can have negative social, economic and psychological consequences for those who are internally colonized or the underprivileged ethnic-racial minorities who are relegated to an enduring situation as second class citizens or who are totally denied citizenship.

Well-known State leaders of opinion are opposed to the rights of Haitian immigrants and tend to speak of Haitians as an undifferentiated mass, making no distinction between Dominican-Haitians and Haitian citizens, suggesting and, at times, affirming explicitly that those born in the Dominican Republic are as Haitian as their parents who were born in Haiti. However, social research suggests that Dominican-Haitians are culturally Dominican, are loyal to the Dominican Republic, and seek to obtain legal citizenship of the country in which they were born and the only one they know. Late registration is often the only way that Dominican-Haitians have of obtaining an official birth certificate. Many Haitians in the Dominican Republic decide to give birth to their children at home, instead of going to a medical center, due to lack of financial resources and the difficulty of having access to adequate means of transportation from remote rural settlements, or to the fear that hospital personnel or police agents will report them, since many of them are in the country illegally. In recent years, hospital personnel have denied birth certifications even to Haitians born in hospitals. The recruitment of Haitians is frequently permitted and even assisted by the Dominican police because very few Haitians would dare to enter a country for the first time where they know no one, do not speak the language, and have no guarantee of employment.

Haitians and their children born into poverty in the bateyes are willing to work for lower wages than those that Dominicans would accept for dangerous work which demands considerable effort.

The desire and also the tendency to return to their homes in Haiti has been especially strong among the Haitian immigrants and nine out of every ten men who migrate to the Dominican Republic to cut cane return home within two years. The Haitians who remain in the Dominican Republic do so because they have formed a family there. Moreover, in the context of globalization where the flow of financial and cultural transactions involves an increasing demand for displacement from one country to another, the marginalization of those who are stateless increases. The ability to move to another country is not a luxury, but a necessity for hundreds of thousands of Dominicans seeking better living conditions; but this is an opportunity from which stateless Dominican-Haitians are excluded, since they do not have the necessary documentation.

Furthermore, the lack of an identity document lays the Dominican-Haitians open to the violation of their procedural guarantees because, if arrested, they are deported to Haiti without any type of judicial review or recourse.

With regard to education, a child who has not been registered is unable to enroll in secondary school or university. For children of Haitian origin from the working classes, higher education is practically the only reliable way of rising on the social and financial scale.

Poverty, lack of safe potable water, inadequate sanitation infrastructure, and the dilapidated conditions and overcrowding of the housing expose the Haitian population to greater risk of diseases and death from pathogens that contaminate water and insects.

Lastly, the refusal to register the children almost inevitably denies Dominican-Haitians a series of human rights, closes the door to financial prosperity and social inclusion, and prevents them from achieving their full potential as human beings.

B) TESTIMONIAL AND EXPERT EVIDENCE

86. On March 14 and 15, 2005, during a public hearing, the Court received the statements of the witnesses proposed by the Commission, the representatives and the State, and of the expert witnesses proposed by the Inter-American Commission and the representatives (supra para. 47). The Court summarizes the principal parts of these statements and expert reports below.

Testimonies

a) Proposed by the Commission and the representatives

1) Genaro Rincón Miesse, lawyer

He is Dominican, resides in Santo Domingo, and is a lawyer by profession. He is legal adviser to the organization Movimiento de Mujeres Domínico-Haitianas (MUDHA). The obstacles to registering children of Haitian origin are the number of requirements and the lack of access of the fathers, who are “braceros” [day laborers], to the identification required by the civil status registrar (either an identity card or a residence card), since they only have a letter issued by the State’s Sugar Board. The Central Electoral Board establishes the registration requirements. In 1997, the requirements for children up to 12 years of age were: birth certification issued by a hospital or clinic and, in the case of children born outside a hospital or clinic, if this was in an urban area, a statement made by the midwife before a notary indicating the birth of the child and, if it was in a rural area, a declaration of the “pedáneo” [auxiliary] mayor endorsed by the midwife; the parents’ documentation and marriage certificate, if they were married. In 1997, the following 11 documents were required to register children over 12 years of age: the birth certification as described above; the parents’ documentation; marriage certificate; certificates from all the civil status registrars in the province indicating that the person had not been registered previously; school certification; baptism certificate; sworn statement by three witnesses over the age of 50 years who know how to read and write; the identity cards of three witnesses; two photographs of the person; certificate indicating whether or not the person had an identity card; and a letter addressed to the Central Electoral Board requesting authorization for late declaration. The civil status registrars do not apply these requirements coherently. In the districts where the Haitian population lives, registrars do not apply the requirements consistently; in contrast, registrars in districts where there is no Haitian immigrant population are more flexible.

On March 5, 1995, (sic) he went to the Registry Office of Sabana Grande de Boyá to register twenty children, including the Yean and Bosico children. In the case of Dilcia Yean the documentation presented was her mother’s identity card and the birth certification from the hospital in Sabana Grande de Boyá, and in the case of Violeta Bosico, the identity card of her mother, Tiramen Bosico, and the birth certification issued by the auxiliary mayor of Sabana Grande de Boyá.

Thelma Bienvenida Reyes, the Civil Status Registrar, refused to accept the documentation because children of Haitian immigrants could not be declared, since
their parents were in the country illegally. If the parents are Haitian, the children are also Haitian, since the parents are in transit. The Civil Status Registrar added that she was following orders from her superiors, which she had in writing, even though she refused to produce the document. She then commented on the “strange,” “Africanized” or Haitian nature of the children’s last names. Lastly, the Civil Status Registrar told them to go to the Immigration Office in the Municipality of the provincial capital of Monte Plata.

The same day, he went to the Immigration Office, together with the MUDHA promoter. The inspector in this Office in Monte Plata gave him the same answer as the Civil Status Registrar. From there he went to the Directorate General of Immigration in Santo Domingo, to the Haitian Affairs Department, where he verified that the Immigration Office was authorized to decide matters relating to the registration of the children of Haitians.

He resorted to the Public Prosecutor, because this official was responsible for guaranteeing civil rights and also for the late declaration procedure. When a late
declaration has been submitted to the Registry Office, it is submitted to the consideration of the Public Prosecutor to determine whether it is in order. He communicated with the Public Prosecutor six times; and the latter told him that he was waiting for his superior, Juan Serrano, to take a decision. Finally, the Public Prosecutor refused the petition because it did not comply with the procedural requirements and sent it back to the Registry Office.

He decided not to appeal before the Central Electoral Board, because, in the past, this body has not replied to the petitions submitted to it. The responsible authorities showed no interest in the matter. Moreover, at that time, there was no remedy of amparo against administrative decisions.

The child Violeta Bosico was expelled from school by the director, because she did not have a birth certificate; consequently, she was enrolled in evening classes. However, she went back to studying at the day school when the Commission ordered precautionary measures (supra para. 8). Also, the Central Electoral Board granted the birth certificates, but it did so in a different jurisdiction to the applicable one, and after presentation of the documents indicated above.

The case of the child Violeta Bosico is not the only case of a child who does not have access to education. Similar cases have been documented by the non-governmental organizations, MUDHA, and the Comité Dominicano de Derechos Humanos.

b) Proposed by the State

2) Amada Rodríguez Guante, Director of the Palavé Basic Education School

She is the director of the Palavé Basic Education School where the child Violeta Bosico studied. The child Violeta Bosico completed basic education in eight courses. This school, as any institution, is regulated by law and, therefore, has a rule that a birth certificate is required in order to enroll a child. The mother is required to produce their birth certificates when she enrolls her children in school. The child Violeta Bosico decided to change from day school to evening classes, where she completed two years during one school year. By law, the evening session is for adults only; that is, those over 18 years of age; but children under 18 years of age can also take the courses. She is not sure how old the child Violeta Bosico was when she attended the school for adults in the evening. Parents have the right to decide where their children attend school. A birth certificate is required to avoid a child enrolling under a different given name or surname. When she started school, the child Violeta Bosico was enrolled under the surname of Richard and then, in eighth grade, when she presented the document, it appeared that her surname was Bosico.

3) Thelma Bienvenida Reyes, Civil Status Registrar of Sabana Grande de Boyá

Children should be registered within sixty days of birth. However, this can vary depending on whether the mother lives in a rural or an urban area: sixty days for an
urban area and ninety days for a rural area. The requirements for a regular declaration are the birth certification from the hospital or clinic or from the auxiliary mayor, and the parents’ identity cards, together with their marriage certificate if they are married. The declaration can be made by the mother, the parents, or the midwife; anyone can make the declaration. The requirements for late declarations are: the same birth certification, the parents’ identity cards, a school certification of whether they attend school or not, and a certificate from the Church stating whether they are baptized or not. In the case of the children Dilcia Yean and Violeta Bosico the declaration was not in order, because the identity cards were not presented; merely the certification from the mayor and another one from the hospital. When the attempt was made to register the children Dilcia Yean and Violeta Bosico, they were about one year old and about 11 or 12 years old, respectively. With regard to the procedure, there is a communication from Manuel Ramón Morel Cerda, President of the Central Electoral Board stating that the procedure complied with the law. The Public Prosecutor is not empowered to establish requirements for late declarations. A negative decision regarding birth registration can be appealed before the hierarchic tribunal which is the Central Electoral Board; then there is the procedure of the Public Prosecutor, and also the remedy of amparo. In the case of a late declaration, any probative documents that are considered necessary can be requested, even though they are not included among the
requirements set out in the resolutions of the Central Electoral Board.

Expert reports

c) Proposed by the Commission and the representatives

1) Débora E. Soler Munczek, psychologist

She interviewed the children Dilcia Yean and Violeta Bosico, and also their next of kin on February 1, 2 and 3, 2005. She found that the environment of discrimination and stigmatization against those of Haitian origin who live in the Dominican Republic has permeated the psychological structure not only of the alleged victims and their next of kin, but also of the whole community. Both children showed evidence of an acceptable social adaptation; however, their self-esteem, self-perception and concept of trust and personal safety and with regard to the world around them have been affected significantly owing to this environment of discrimination and stigmatization. The alleged victims and their next of kin are frightened of the reprisals they could suffer because they are defending their rights; and even though the families are more relaxed now that they have received the birth certificates issued by the State, their fear of deportation persists. Both families consider that the education of the children Dilcia and Violeta is an essential factor for their socio-economic future, so they have made significant financial and legal sacrifices to preserve this right.

2) Frederick John Packer, lawyer and professor

Issues relating to nationality have traditionally fallen within the State’s jurisdiction, but principles of international law, such as the right of individuals not to be stateless and the obligation of States to protect human rights have limited this power in recent years. Nationality, as a legal term, is traditionally defined based on two principles: on blood (or family heritage) and on place of birth. However, international treaties – such as the United Nations Convention on the Reduction of Statelessness and the European Convention on Nationality – and international courts – such as the Inter-American Court of Human Rights and the International Court of Justice – have adopted the principle of an effective connection between the individual and the State to define nationality. This change reflects the interest of States to improve inter-State relations and their desire to protect human rights, particularly of vulnerable individuals, such as children and women.

The effective connection between the individual and the State may be proved by various elements considered together. Thus any fact or act by an individual or the
State that shows a real union between them satisfies this purpose; for example, the place of birth and the place of residence, or the identification of the applicant with the people of the said State.

States can choose the administrative procedure they prefer in order to grant nationality to those who request it. However, they are obliged to make this procedure
simple and reasonable, especially when the applicants are individuals who would otherwise remain stateless. The two international treaties mentioned above order the State to grant nationality automatically to any person born on its territory who would otherwise remain stateless. In other cases, nationality is granted following a request made after a period of residence (either 3 or 5 years, depending on the treaty). Although they are related, the procedures for nationality and for birth registrations are different and have different purposes. The nationalization procedure formally establishes the connection between the individual and the State; thus the individual can have recourse to the State’s protection. In contrast, the main purpose of the Registry Office procedure is to contribute to the State’s interest in controlling health, safety and public order.

It is reasonable for States that choose to use the birth registration system as part of the nationalization procedure to require documents that establish the identity of the individual, such as the birth certification, the baptism certificate or an attestation of the person who delivered the child. However, it is not reasonable to request all these documents at the same time, or ask for documents that show the legal migratory status of the father or mother of the applicant, or the existence of a formal marriage between them. First, requesting all these documents at the same time creates an unacceptable financial burden and requires an excessive amount of time. Second, the request for documents that prove the marital union or the migratory status of the parents constitutes a discrimination based on origin and membership of a social group.

Third, documents that show the relationship of the applicant’s parents with the State are irrelevant, because the connection that has to be proved is the one that exists between the applicant and the State.

In the case of the Yean and Bosico children, it is clear that their connection, the structure of their lives and their relationships are with the Dominican Republic; thus
they could not have Haitian nationality, because there is no real connection between these children and the State of Haiti. By requiring a series of documents to be
submitted concurrently, the administrative procedure of the Dominican Republic places a significant burden on the applicant. Moreover, these documents are redundant, because just one of them can satisfy the purpose of documenting the identity of the applicant and his/her connection with the State. No nationalization procedure in the fifty-five countries that the witness is aware of calls for all these requirements or documents simultaneously. The argument that all these documents are requested to prevent a possible electoral fraud is unsustainable, because the Dominican Republic can achieve this purpose by appropriate registration procedures that do not affect the procedure to obtain nationality.

Finally, even though international law does not define the concept of “people in transit,” this is not important when deciding whether a person has a specific nationality, because what is important is the existence of the real connection between the individual and the State.

C) EVIDENCE ASSESSMENT

Documentary evidence assessment

87. In this case as in others,16 the Court accepts the probative value of the documents presented by the parties at the proper procedural opportunity or as helpful
evidence in accordance with Article 45 of its Rules of Procedure, which were not contested or opposed, and whose authenticity was not questioned.

88. In accordance with Article 45(1) of the Rules of Procedure and considering them useful to decide this case, the Court adds to the body of evidence the documents presented by the representatives, which they indicated were supervening evidence17 (supra para. 48); the documents submitted by the representatives as attachments to their final written arguments18 (supra para. 49); the documents contributed for the first time by the State as attachments to their final written arguments19 (supra para. 49), and the documents submitted by the State on January 10, May 24 and September 5, 2005.20

89. In application of the provisions of Article 45(1) of the Rules of Procedure, the Court incorporates into the body of evidence in this case, the documents presented by the State, the Commission and the representatives that were requested by the Court as helpful evidence (supra paras. 50 and 51); namely, a copy of Act No. 8-92 of April 13, 1992, presented by the three parties, and a copy of Resolution No. 5/88 of the Central Electoral Board of June 8, 1988, presented by the State and the representatives, because they are useful for deciding this case. With regard to the Court’s request that the parties should present as helpful evidence the attachments to the “application requesting authorization for late declarations [...]” submitted to the Public Prosecutor of the Judicial District of Monte Plata, the Dominican Republic, on September 11, 1997, the Court notes the observations of the State21 and the Commission,22 which did not forward the attachments alleging that they did not have them; and the representatives only forwarded the attachments that were already in the case file indicating that “although the request to the Public Prosecutor was filed in favor of a group of children of Haitian origin, [...] they [would] provide only the documents corresponding to the Yean and Bosico children.” In view of the foregoing, the Court notes that the parties must provide all the probative elements requested de oficio, as helpful evidence or at the request of a party, because the Court should have the greatest possible number of probative elements in order to assess and draw conclusions about the facts.

90. The Court also adds the following documents to the body of evidence in application of Article 45(1) of the Rules of Procedure, because it considers them useful to decide this case:(a) United Nations Development Programme, Human Development Office of the Dominican Republic, Informe Nacional de Desarrollo Humano 2005: Hacia una inserción mundial incluyente y renovada; (b) United Nations, Committee on the Rights of the Child, Examination of the Reports presented by the States Parties under Article 44 of the Convention. Concluding Observations of the Committee on the Rights of the Child. The Dominican Republic. UN Doc. CRC/C/15/Add.150, 21 February 2001; (c) World Bank, Dominican Republic Poverty Assessment: Poverty in a High-Growth Economy (1986 – 2000), 2 volumes, 2001; (d) Bridget Wooding and Richard Moseley- Williams, Inmigrantes haitianos y dominicanos de ascendencia haitiana en la República Dominicana. Santo Domingo, the Dominican Republic: Cooperación Internacional para el Desarrollo y el Servicio Jesuita a Refugiados y Migrantes, 2004; (e) United Nations, Human Rights Committee, Comments by the Government of the Dominican Republic on the Concluding Observations of the Human Rights Committee, UN Doc. CCPR/CO/71/DOM/Add.1, 28 May 2002; (f) Organization of American States, Annual Report of the Inter-American Commission on Human Rights 1991, OEA/Ser.L/V/II.81, doc. 6 rev. 1, of February 14, 1992; (g) Organization of American States, Inter- American Commission on Human Rights, Report on the Situation of Human Rights in the Dominican Republic, OEA/Ser.L/V/II.104, doc. 49 rev. 1, of October 7, 1999, and (h) United Nations, Commission on Human Rights, “Human Rights and Extreme Poverty,” report presented by the independent expert responsible for the issue of human rights and extreme poverty, A. M. Lizin, in accordance with resolution 2002/30 of the Commission on Human Rights, Addition: Mission to the Dominican Republic. UN
Doc. E/CN.4/2003/52/Add.1, 16 January 2003.

91. The Court admits the authenticated statements made by the children Dilcia Yean and Violeta Bosico (supra paras. 85(a)(4) and 85(a)(1)), and by Tiramen Bosico Cofi, Leonidas Oliven Yean and Teresa Tucent Mena (supra paras. 85(a)(2), 85(a)(5) and 85(a)(3)), to the extent they are in keeping with the purpose of the statement, and assesses them together with the body of evidence. The Court considers that, as they are the alleged victims and their next of kin who have a direct interest in the case, their statements must be assessed together with all the evidence in the proceedings and not in isolation. The statements of the alleged victims and those of their next of kin are useful insofar as they can provide more information on the consequences of the alleged violations.23

92. In relation to the expert report submitted by Samuel Martínez (supra para. 8(b)(1)), which the State contested because it considered that the instant case “was
not a class action that attempted to group together all the children of Haitian origin, and it did not refer to nationals of that country, so that it was totally irrelevant and out of order for [Mr. Martínez] to refer to aspects of Haitian migration and discrimination,” this Court admits it, because it considers it useful to decide the case; however, it bears in mind the State’s objections and assesses the report together with the body of evidence, applying the rules of sound criticism.

93. With regard to the abovementioned statements of the children Dilcia Yean and Violeta Bosico and of Tiramen Bosico Cofi, Teresa Tucent Mena and Leonidas Oliven Yean, as well as the expert report of Samuel Martínez, which have been authenticated and were not made before notary public, the Court admits them as it has on other occasions, because this does not affect legal certainty or the procedural equality of the parties.24

94. In relation to the statements made by Leonidas Oliven Yean on June 9 or July 25, 1999, and on July 24, 2001; the statement made by Tiramen Bosico Cofi on July 11, 1999, and the statement made by Genaro Rincón Miesse on August 9, 1999, provided by the Commission, the representatives and the State as documentary evidence, attached to their respective briefs of application, requests and arguments, and answering the application, the State indicated that these contained contradictions and a lack of precision. Accordingly, the Court admits them, bearing in mind the State’s objections and assesses them in the context of the body of evidence and not in isolation.

95. With regard to the birth certificate of the child Violeta Bosico, issued on March 3, 1997, by the auxiliary mayor of the Second Circumscription of Sabana Grande de Boyá, the State contested the veracity of the place of birth indicated on this certificate, because Tiramen Bosico had stated before the said mayor that the child was born at home, while in the statement that she made on February 2, 2005, authenticated by Marcelino de la Cruz, she explained that the child “was born in the Social Insurance Maternity Clinic of Sabana Grande de Boyá.” The Court notes that the State’s objection refers to the place of birth of the child Violeta Bosico; namely whether she was born at home or in a maternity clinic. In other words, the State did not contest or oppose the other elements on the certificate, that is, the name of the child, her date of birth, the name of her mother and the fact that she was born in the Dominican Republic. Consequently, the Court considers that, since the State did not contest the fact that the child Violeta Bosico was born in the Dominican Republic, the elements to which the State objects do not affect the Court’s decision on the central issue of this case.

96. Regarding the articles published by the press and presented by the parties, this Court considers that they can be assessed to the extent that they refer to well-known public facts, or statements by State officials, or corroborate aspects related to the case.25

Testimonial and expert evidence assessment

97. With regard to the testimony of Genaro Rincón Miesse (supra para. 86(a)(1)), and the expert reports of Débora E. Soler Munczek and Frederick John Packer (supra paras. 86(c)(1) and 86(c)(2)), the Court admits them because it considers them useful to decide the instant case, but it also bears in mind the State’s observations regarding the expert witnesses, and assesses the testimony together with the body of evidence, according to the rules of sound criticism.

98. In relation to the testimony of Thelma Bienvenida Reyes (supra para. 86(b)(3)), which was not contested or opposed, the Court admits it and recognizes its probative value. Regarding the testimony of Amada Rodríguez Guante (supra para. 86(b)(2)), the Court notes that, during the public hearing, the purpose of her testimony was modified and it was decided that she should testify on the education of the child Violeta Bosico and the alleged non-pecuniary damage the child suffered by losing one year of school; this was not contested or opposed, so the Court admits it insofar as it corresponds to the purpose of the examination of the witness, and grants it probative value.

99. Based on the above, the Court will assess the probative value of the documents, statements and expert reports presented in writing or made before it. All the evidence submitted during the proceeding has been incorporated into a single body of evidence, which will be considered as a whole.26

VII PRIOR CONSIDERATIONS

100. The Court considers that, before examining the merits of the dispute, it should clarify its competence in this case, since the Dominican Republic accepted the Court’s contentious jurisdiction on March 25, 1999.

101. In its application, the Commission indicated that it was not requesting the Court to establish violations based on facts that occurred prior to March 25, 1999; it stated that the facts that took place prior to that date were “submitted to the Court to provide background material to the violations that can be attributed to the State following its acceptance of the Court’s contentious jurisdiction.”

102. In this respect, the representatives stated that “the Court has full jurisdiction to decide cases of alleged violations [of] the Convention by the State as of March 25,

103. The State indicated that “the temporal jurisdiction of the Court [...] is delimited by the moment at which the State accepted this jurisdiction.”

104. When determining whether or not it has jurisdiction to hear a case pursuant to Article 62(1) of the American Convention, the Court must take into consideration both the date of the State’s acceptance of its jurisdiction, and also the principle of nonretroactivity established in Article 28 of the 1969 Vienna Convention on the Law of Treaties, which applies to the period during which the juridical effects of the acceptance of the Court’s jurisdiction are effective.27

105. This principle establishes that the Court cannot exercise its contentious jurisdiction to apply the Convention and declare that its norms have been violated
when the alleged facts or conduct of the defendant State that could involve international responsibility precede acceptance of the Court’s jurisdiction.

106. Consequently, the Court has jurisdiction to hear and declare violations to the Convention in two different situations: when the facts that produced a violation are subsequent to the date of acceptance of its jurisdiction, or in the case of a continuing or permanent violation that persists after the acceptance, even though it began before it.28

107. Also, when interpreting the Convention in accordance with its object and purpose, the Court must do so in a way that preserves the integrity of the mechanism established in Article 62(1) of the Convention. It would be inadmissible to subordinate this mechanism to constraints that render ineffectual the system to protect human rights established in the Convention and, consequently, the Court’s jurisdictional function.29

108. In view of the above, the Court considers it necessary to establish that although the facts presented by the Inter-American Commission as background material took placed prior to March 25, 1999, some of these facts could persist after the date on which the state accepted the contentious jurisdiction of the Inter-American Court (supra para. 4), a situation which the Court will examine in this case.

VIII PROVEN FACTS

109. The Court considers proven the facts that form part of the background and context of this case which it is considering in the exercise of its competence. These facts are described below:

Background

SOCIAL CONTEXT

109(1) The first important migrations of Haitians towards the Dominican Republic took place in the first third of the twentieth century when around 100,000 persons went to work on the sugar plantations in that country. The Dominican mills were originally in the hands of private companies and, later, most of them were transferred to the control of the State Sugar Council (CEA). Many Haitian migrants went to live permanently in the Dominican Republic, formed a family in that country, and now live there with their children and grandchildren (second and third generation Dominicans of Haitian origin) who were born in and live in the Dominican Republic.30

109(2) Most of the Haitians and Dominicans of Haitian origin in the Dominican Republic live in conditions of poverty in areas known as “bateyes,” which consist of settlement of agricultural workers located around the sugar cane plantations.31 There are few basic public services in these places and the roads are not maintained so that, during the rainy season, communication between the bateyes and the towns can be cut for several days.32

109(3) In 2005, the Office of the United Nations Development Programme in the Dominican Republic indicated that:

Haitians live in the country in very precarious conditions of extreme poverty. Furthermore, most of them are undocumented and must face a generally hostile political and social situation, without the possibility of legal assistance and with limited access to health, sanitation and education services, and this includes the children of Haitians, who have been born in the country. It should be noted that the constraints to access to public services and the problem of lack of documentation are general among the poorest segments of the Dominican population. [...] Regarding Haitian immigration, our information confirms the conditions of their incorporation into sectors of the labor market assigned to this group of immigrants, [...] characterized by low salaries and appalling working conditions with low technology, known internationally as the three Ds: dirty, dangerous, demanding. Evidently, these are not precisely acceptable conditions from a human development perspective. […].33

109(4) In its report to the United Nations when presenting the “Comments by the Government of the Dominican Republic on the Concluding Observations of the Human Rights Committee,” the State affirmed that its greatest concern was “to combat exclusion and social inequality by seeking mechanisms to integrate society as a whole and ensure that anti-Haitian practices are a thing of the past.”34

109(5) In this report to the United Nations, the State indicated that the President of the Republic in 2002, Hipólito Mejía, had spoken out “in favor of enhancing the status of the bateyes,” and affirmed that “since we bank on the future, we cannot remain passive in the face of situations that involve the direst poverty that offend our humanitarian conscience. If we ask ourselves what best symbolizes this type of situation, I believe we would all say, living conditions in the bateyes.”35

THE CHILDREN DILCIA YEAN AND VIOLETA BOSICO

109(6) Dilcia Yean was born on April 15, 1996, in the “local health center,” in the Municipality of Sabana Grande de Boyá, Province of Monte Plata, the Dominican Republic.36 She grew up in this municipality and, in 2003, attended the Alegría Infantil School.37 Her mother is Leonidas Oliven Yean, of Dominican nationality.38 Her father is Haitian and is not in communication with his daughter.39 Her maternal grandparents are Dos Oliven, Haitian, and Anita Oliven Yean.40 Dilcia Yean is of Haitian origin through her father and her maternal grandfather.

109(7) Violeta Bosico was born on March 13, 1985, in the Dominican Republic.41 Her mother is Tiramen Bosico Cofi, of Dominican nationality.42 Her father is Delima Richard, of Haitian nationality, and he is not in communication with his daughter.43

109(8) Violeta Bosico lived with her mother and siblings in Batey Las Charcas, until 1992, when she went to live with her sister, Teresa Tucent Mena, in Batey Verde, also called Batey Enriquillo. In 1993, she moved, together with her sister to Batey Palavé, outside Santo Domingo, where she lives now. Violeta Bosico has grown up in the Dominican Republic, attended the Palavé School and, in 2005, went to secondary school.45

109(9) Owing to their Haitian ancestry, the children Dilcia Yean and Violeta Bosico, form part of a vulnerable social group in the Dominican Republic.46


THE REQUEST MADE BY THE CHILDREN DILCIA YEAN AND VIOLETA BOSICO FOR LATE BIRTH REGISTRATION IN THE CIVIL STATUS REGISTRY OFFICE

109(10) Most Haitians and Dominicans of Haitian origin use the late declaration of birth procedure to declare their children born in the Dominican Republic. The mothers usually give birth at home, given the difficulty of traveling from the bateyes to the hospitals in the cities, their limited financial resources, and their fear of making themselves known to the hospital officials, the police and officials of the office of the auxiliary mayor and being deported. The Dominican Republic has deported Haitians and Dominicans of Haitian origin irrespective of their migratory status in the country. In such cases, the decisions have been taken without any prior investigation procedure. In some cases in the 1990s, these deportations included many thousands of persons.47

109(11) In the Dominican Republic there have been cases in which the public authorities have placed obstacles in the way of Dominican children of Haitian origin
obtaining birth certificates. Consequently, these children have had difficulty in obtaining an identity card or a Dominican passport, attending public schools, and
having access to healthcare and social assistance services.48 109(12) The Constitution of the Dominican Republic stipulates that all those born on its territory are Dominicans. The State adopted the principle of ius soli to grant Dominican nationality, except for the children of foreign diplomats resident in the country or the
children of those in transit.49

109(13) In the Dominican Republic, there are a series of requirements for late birth registration that vary according to the age of the applicant. There are different
requirements for children under 13 years of age and for children over 13 years of age, which are indicated on lists issued by the Central Electoral Board or by any of the different Registry Offices. The requirements may vary according to the location of the Registry Office or the registrar applying them (infra paras. 109(18), 109(20) to 109(28)).50

109(14) On March 5, 1997, when Dilcia Yean was 10 months old and Violeta Bosico was 12 years old, Genaro Rincón Miesse, who was the MUDHA lawyer at the time, Tiramen Bosico Cofi, who accompanied her daughter, Violeta Bosico,51 and Martha Remigio, a cousin of Dilcia Yean’s mother, who accompanied this child,52 went to the Registry Office of Sabana Grande de Boyá to request late registration of the birth of Dilcia Yean and Violeta Bosico, among other children.

109(15) The documents that the applicants brought to the Registry Office of Sabana Grande de Boyá were the identity cards of the children’s mothers.53 In the case of Sabana Grande de Boyá and, in the case of Violeta, the certification of her birth issued by the auxiliary mayor of Batey Las Charcas, Sabana Grande de Boyá.54

109(16) In 1997, children under 13 years of age were required to present a birth certification, the parents’ identity cards and, if the latter were married, their marriage certificate, when requesting late registration of birth.55

109(17) In the Registry Office of Sabana Grande de Boyá, the registrar responsible for registering births, Thelma Bienvenida Reyes, informed Genaro Rincón Miesse that it was not possible to register the children because the applicants did not have all the documents that Central Electoral Board required for this procedure.56

109(18) While the case was being processed before the Commission, the State presented a communication signed by Thelma Bienvenida Reyes, and attached a list issued by the Central Electoral Board, with the eleven documents required for late registration of birth:57

1. Document from the Mayor (if the child was born in a rural area), or certification from the clinic or hospital where the child was born.

2. Certification from the church or parish on whether the child was baptized or not.

3. School certification, if the child is in school.

4. Certification from all the Registry Offices in the place where the child was born.

5. Copies of the parents’ identity cards; if the parents are deceased, copies of the death certificates.

6. If the parents are married, copy of the marriage certificate.

7. Sworn statement (Form OC-25) signed by three witnesses over 50 years of age who have an identity card (the new identity card), and who know how to sign their names.

8. Copies of the witnesses’ identity cards.

9. Letter addressed to the President of the Central Electoral Board requesting late declaration of birth.

10. Letter addressed to the President of the Central Electoral Board requesting certificationof whether or not the child has an identity document; if the applicant is over 20 years of age, he/she also requires a certification from the Edificio El Huacalito: National District […] of whether or not he/she has an identity document.

11. Two (2) photographs […].

109(19) On September 11, 1997, MUDHA and the Comité Dominicano de Derechos Humanos (CDH), through its lawyers, Genaro Rincón Miesse and Marcelino de la Cruz Nuñez, filed a “petition requesting authorization for late declarations,” before the Public Prosecutor of the court of first instance of the Judicial District of the Province of Monte Plata, in favor of a specific group of children, including the children Dilcia Yean and Violeta Bosico.58

109(20) On July 20, 1998, the Public Prosecutor of the Judicial District of Monte Plata, Julio César Castro Castro, decided “to refuse [...] the request for late declaration of birth, because it was not accompanied by the appropriate documentation and procedure, [and] to refer the parties concerned to the Civil Status Registrar of Sabana Grande de Boyá, so that the application could be made in keeping with the ordinary procedure,” because the twelve following requirements had to be fulfilled in order to make a late registration of birth:59
[…]
1. Birth certification (hospital, clinic, midwife).

2. Certification from the parish on whether the child was baptized or not.

3. Certification from the school concerning the education received by the applicant, and the level of schooling achieved.

4. Certification of the registry offices in the place where the applicant was born.

5. Copies of the parents’ identity cards.

6. If the parents are deceased, copies of the death certificates.

7. Sworn statement signed by three witnesses over 50 years of age, who have identity cards.

8. Copies of the witnesses’ identity cards.

9. Letter addressed to the President of the Central Electoral Board requesting late declaration of birth.

10. If the applicant is 20 years of age or over, certification of whether or not he/she has the old identity card.

11. Two photographs

12. Certification of identity, with seven witnesses[.]

109(21) In a communication of November 15, 2001, addressed to the Inter-American Commission, the representatives attached a document with seven requirements for “late declarations and their ratification by a ruling,” required by the “Civil Status Registry office of the Second Circumscription [National District],” for children over 13 years of age, and indicated three requirements for children under 13 years of age, as follows:60

1. C