57.     Every year, the Rapporteur’s Report features a section summarizing the case law of the organs of the inter-American system for the protection of human rights, relevant to migrant workers and their families.  This is an important chapter of the annual report because it reports the situation of the rights of migrant workers and their families in the Americas.


       58.     The Rapporteurship’s intent by including this chapter is to inform the public as to how the Commission and the Inter-American Court of Human Rights (hereinafter the IACtHR or the Court) interpret the scope and content of the rights of migrant workers and their families.


        ●        Right to information on consular protection and the right to a fair trial


        Acosta Calderón vs. Ecuador


       59.       In June 2005, the Court delivered its judgment in the case of Acosta Calderón vs. Ecuador.[7]  This case began with an application lodged by the Commission in June 2003.  The IACHR alleged violation of the following rights and obligations, to the detriment of Mr. Rigoberto Acosta Calderón: the duty to respect rights (Article 1.1), the duty to adopt domestic legal measures (Article 2), the right to personal liberty (Article 7), the right to a fair trial (Article 8), the right to equal protection (Article 24) and the right to judicial protection (Article 25) of the American Convention.  The IACHR asked the Court to order the Ecuadorian State to adopt measures to pay pecuniary and non-pecuniary damages for the violations committed.


       60.      The facts of the case can be summarized as follows.  Mr. Acosta Calderón, a Colombian citizen, was arrested by Ecuador’s Military Customs Police on November 15, 1989, on suspicion of drug trafficking.  Mr. Acosta Calderón lived in Putumayo, Colombia, and worked in agriculture.  According to the police arrest report, a suitcase said to contain coca paste was confiscated from Mr. Acosta Calderón.  At the time of his arrest, the alleged victim protested his innocence.  Mr. Acosta Calderon was not allowed to tell his version of the facts in the presence of his defense counsel and was not notified of his right to consular assistance.  Then, after being held in custody for two years, he was allowed to make a statement in the presence of a judge.  Mr. Acosta Calderón, however, remained in detention for a total of five years of one month in preventive custody.  In December 1994, Mr. Acosta Calderón was convicted of the crime of drug trafficking even though the drugs he was alleged to have been carrying had disappeared and there was no way to determine what substance he was alleged to be carrying in his suitcase.  On July 29, 1996, he was released upon completion of the sentence.  In short, Mr. Acosta Calderón had by then been deprived of his liberty for six years and eight months.


       61.       The IACtHR determined that it had jurisdiction to hear the case, as Ecuador had been a State party to the American Convention since December 28, 1977, and had accepted the Court’s contentious jurisdiction on July 24, 1984.  The answer to the application was dismissed on the grounds that it was submitted after the deadline. At other procedural opportunities, the Ecuadorian State failed to submit its arguments regarding the facts and the claims made in the application.  The Court therefore applied Article 38.2 of its Rules of Procedure, which authorizes it to accept as true any facts that are not expressly refuted and any claims not expressly contested.


       62.       With regard to the violation of the right to personal liberty, the Court held that the case involved an arrest in flagrante and no expert report was done of the supposed cocaine taken from Mr. Acosta Calderón.  The Court confirmed that the alleged cocaine disappeared, making it impossible to confirm whether a crime had ever been committed. The Court therefore held that Mr. Acosta Calderón’s case was one of arbitrary deprivation of personal liberty (Article 7.3 of the American Convention, in relation to the obligation to respect rights, recognized in Article 1.1).  The Court, however, dismissed the arguments made by the representatives of the alleged victim with regard to the right to be informed of the reasons for the deprivation of liberty.  The Court reasoned that inasmuch as the arrest was in flagrante, the motives for the arrest could be assumed.  It added, however, that preventive detention is the most severe precautionary measure that can be imposed and must therefore be an exceptional measure, limited by the principles of legality, presumption of innocence, necessity and proportionality.  Preventive detention is not, moreover, punitive in nature and, when arbitrarily prolonged, becomes de facto a form of punishment.[8]   


       63.       As for the unduly protracted preventive detention, the Court held that to merely inform a judge of a person’s arrest does not rise to the standard set in Article 7.5 of the Convention, which guarantees everyone’s right to be brought before a judge at the time of one’s arrest (Article 7.5 of the Convention). That right is not respected simply by informing the judge of the arrest.  Instead, a person deprived of his liberty must appear, in person, before the court authority in whose presence he is to make his statement.[9] In the case under examination, Mr. Acosta Calderón made his statement in the presence of the prosecutor and a police officer; his attorney was not present.  Indeed, almost two years would pass before he was brought before a judge.  The Court found that the prosecutor was not the judicial authority intended under the Constitution of Ecuador in effect at that time.  Therefore, the guarantee of judicial oversight of arrests was violated.


       64.       When addressing the question of the judicial oversight of the detention and the right to judicial protection (Articles 7.5 and 25 of the American Convention), the Court confirmed its case law as to the function of these guarantees in a democratic society.  In the instant case, Mr. Acosta Calderón filed several petitions of amparo regarding his detention.  Some were never decided; in one instance, the petition was ultimately denied long after the time period required under the law.  Thus, his petitions were not diligently decided and therefore could not be effective.  The State thereby violated the alleged victim’s right to judicial oversight of his detention.


       65.       In its examination of the right to judicial guarantees, the Court found the following:  to determine whether the right to a hearing within a reasonable period had been violated, the Court factored in the full duration of the process.  In criminal matters, that process begins when the suspect is detained.  In its analysis, the Court took three factors into account:  the complexity of the case, the judicial activity of the interested party and the behavior of the judicial authorities.[10] In this case the Court’s conclusion was that the delay in processing the case was due to the judicial authorities.  Documents were found in the case file pertaining to other criminal cases; on the other hand, documents relevant to Mr. Acosta Calderon’s case, such as his statement, had been removed.  Furthermore, the object of the crime had also disappeared, making it impossible to prove that the accused was in fact carrying cocaine.  By its conduct, the Ecuadorian State had violated the accused’ right to be judged within a reasonable period (Article 8.1 of the American Convention).


       66.       The Court also held that the right to be presumed innocent (Article 8.2 of the American Convention) had been violated as well, since Mr. Acosta Calderón was prosecuted and imprisoned for five years, even though it was never proved that the alleged object of the crime was in fact an illegal substance.  The grounds for the detention were the claims made by the arresting police officers.  It was evident, therefore, that the victim’s right to be presumed innocent was violated, as there was insufficient evidence to justify his prosecution and incarceration.


       67.       The Court has held that to effectively guarantee the right of every person to be informed of the charges against him, said person must be notified of those charges before making his first declaration, since otherwise his right to prepare the means of his defense would be violated.  In this case, Mr. Acosta Calderón was not promptly informed of the charges against him.  The authorities mentioned only the substance that he was alleged to have been carrying and that was used as the grounds for his arrest.  The Court therefore considered that the State had violated the victim’s right to be advised, in detail and promptly, of the charges against him (Article 8.2.b of the American Convention). 


       68.       Another element of the right to a fair trial that the Court examined in its judgment is the right of defense (Articles 8.2.d and 8.2.e of the American Convention).  Although this right is protected under Ecuador’s Constitution, Mr. Acosta Calderón did not have his attorney with him when he made his first statement to the police.  Furthermore, although he was an alien, he was not advised of his right to speak with a consular official, as established in the Vienna Convention on Consular Relations. This, too, was a violation of his right of defense.   In this judgment, the Court reconfirmed its jurisprudence regarding the point in the proceedings when consuls are to be notified and how consular notification is related to judicial guarantees.[11] 


       69.       The Court also referenced the obligation that the State undertook to adopt legislative measures to give effect to the rights and freedoms recognized in the American Convention (Article 2).  The IACtHR held that one provision of the Criminal Code that was in effect at the time of Mr. Acosta Calderón’s detention was in violation of this article of the Convention, as it did not recognize the right to have recourse to a court to challenge a decision to hold someone in custody or detention, establishing an exception in the case of crimes related to narcotic drugs and psychotropic substances.


       70.       Because it found violations, the Inter-American Court also decided how those human rights violations were to be redressed.  In this case, one factor that had to be considered was that Mr. Acosta Calderón, who apparently had returned to Colombia after being released, could not be found.  The Court ruled that the fact that Mr. Acosta Calderón could not be located did not affect his right to reparation.  It figured the pecuniary damages as of the time the victim was unable to work; the non-pecuniary damages were calculated on the basis of the fact that he was held in preventive detention for over five years.  On that basis, it ordered the State to pay him the sum of US$60,000 for pecuniary and non-pecuniary damages.  It also ruled that if the victim could not be located, the amount awarded as reparations was to be deposited with a financial institution, under the most favorable terms possible.  If at the end of ten years the compensation had not been claimed, the $60,000, together with any money it had earned, was to be returned to the State.  As for the other reparation measures, the Court ordered publication of its judgment and expungement of the victim’s criminal record.  It also ordered the State to pay costs and expenses.


      71.       In the explanation of his vote, Judge Antônio Augusto Cançado Trindade stated that in his view, preventive detention for more than five years was a violation of the right to humane treatment and that in this case, the Court should have reversed the burden of proof and asked the State to show that no such violation had occurred, rather than reject the arguments made by the victim’s representatives.  He went on to say that the right to information on consular assistance had direct consequences for the observance of other rights, such as the right to personal liberty and the right to a fair trial.


      72.       Judge Manuel E. Ventura Robles also presented an explanation of his vote in which he, too, mentioned the violation of the right to humane treatment.  He indicated that the effect impact that five years’ preventive detention had on the victim should have been taken into consideration. 


      ●         The right to nationality, the right to juridical personality, the right to equality before the law, the right to a fair trial, the right to judicial protection and the rights of the child


       The Case of the Girls Dilcia Yean and Violeta Bosico vs. Dominican Republic 


      73.       The Court delivered another judgment in 2005 that was relevant for migrant workers and their families.[12]  In earlier reports, the Rapporteurship mentioned the case of the girls Dilcia Yean and Violeta Bosico against the Dominican Republic.  The case began with a petition lodged with the Commission alleging violation of the following rights: the right to juridical personality (Article 3), the right to a fair trial (Article 8), the rights of the child (Article 19), the right to nationality (Article 20), the right to equal protection (Article 24), and the right to judicial protection (Article 25) of the American Convention, in relation to the obligation to respect rights and the obligation to adopt domestic legislative measures (Articles 1 and 2), also of the American Convention, all to the detriment of the girls Dilcia Oliven Yean and Violeta Bosico Cofi. In 1998, the Commission determined that it was competent in this case.  At the time, the two alleged victims were minors.


       74.       The facts of the case can be summarized as follows.  The authorities at Civil Records refused to issue birth certificates for the Yean and Bosico girls, despite the fact that the two girls were born in the Dominican Republic, which recognizes the principle of jus solis in determining nationality.  By denying them their birth certificates these two minors were marginalized and socially ostracized, forced to live as stateless persons until such time as their Dominican citizenship was recognized.  Furthermore, lacking any identification document, the Bosico girl was unable to attend school.  The IACHR underscored the fact that there is no procedure in place by which to appeal the decisions of Civil Records, or to file a complaint of discrimination on the part of the Civil Records authorities.  This is a violation of rights recognized in the American Convention.


        75.       When births are not immediately registered, Dominican law requires that various documents be tendered for belated registration of birth.  In the proceedings before the Commission and the Court, the State mentioned a number of requirements that must be met for belated registration.  They include: confirmation of birth (hospital, clinic, midwife); confirmation from the parish of whether the child was baptized; certification from the school of the studies the child is pursuing or pursued and the grade reached; certification by the officials of the place where the child was born; a copy of the parents’ identification and voter registration papers; in the event the parents are deceased, a record of the parents’ death certificates; the parents’ marriage certificate, if they are married; a sworn statement, signed by three witnesses over the age of 50 who are the bearers of identification cards; copies of the identification cards and voter papers of the witnesses; a letter addressed to the chair of the Central Electoral Board requesting belated declaration of birth; if the person is 20 years old, certification of the old identity card, and whether or not it was issued; two photographs, and an affidavit attested to by seven witnesses.


       76.       The Commission asked the Court to order the State to pay compensation that would constitute just satisfaction for the rights violated and to take the necessary measures to guarantee respect for the rights recognized in the Convention, including the institution of procedures for belated registration of birth that are neither discriminatory nor excessive, so as to facilitate the registration of Dominican-Haitian children.  It also requested that the Court order the State to pay costs and expenses.


       77.       The Court held that it had jurisdiction in the case, inasmuch as the Dominican Republic had been a party to the American Convention since April 19, 1978, and had accepted the contentious jurisdiction of the Court on March 25, 1999.  The following must be said of the processing of the case with the Commission and the Court.  In August 1999, the Commission ordered precautionary measures on the girls’ behalf and requested that the State provide sufficient guarantees that they would not be expelled from the Dominican Republic and that the Bosico girl would be able to continue attending school.  The Commission declared the petition admissible in Report No. 28/01, and approved the report on the merits in Report No. 30/03.


       78.       The Commission lodged an application with the Court on July 11, 2003.  The State entered preliminary objections, claiming failure to exhaust local remedies and noncompliance with the friendly settlement presented by the IACHR and accepted by the State.  It then alleged that the Court lacked jurisdiction ratione temporis.  In this regard, the Court indicated that since, during the Commission’s proceedings on the petition’s admissibility the State had failed to indicate what suitable and effective remedies remained to be exhausted, it had thereby implicitly waived its right to exercise this means of defense.  Given this fact, the Court dismissed the first preliminary objection.  The Court dismissed the second preliminary objection because the friendly settlement proceeding had not ended with a settlement agreement between the parties.  As for the State’s argument alleging the Court did not have competence ratione temporis, the Court dismissed it based on the date the State had accepted the contentious jurisdiction of the Court and on the principle of non-retroactivity established in the 1969 Vienna Convention on the Law of Treaties.  While some facts in the case predated the State’s recognition of the Court’s contentious jurisdiction, other facts continued beyond that date. In other words, this was a case of continuing violations of rights.  The two girls’ nationality was not recognized until September 25, 2001.


      79.       In keeping with the precautionary measures ordered by the Commission, on September 8, 1999 the State ordered the General Bureau of Immigration to issue temporary visas to the two girls until such time as the immigrant status was decided.  Later, on September 21, 2001, the mothers of the alleged victims were allowed to register their births thanks to the intervention of the Secretariat of Foreign Affairs.  They were not asked to pay any tax, to sign any documents or to present any public declarations.  Some days later, the State issued each girl her birth certificate.


       80.       After examining the parties’ arguments, the Court did an analysis of the law, which is summarized below.  In the case of the violation of the rights of the child (Article 19 of the American Convention), the Court underscored the special gravity of violations of children’s rights and the precedence of the higher interests of the child.[13] However, it also decided that rather than address the violation of this right separately, the Court would include it in its analysis of the violated rights.  .


       81.       The Court began its examination of the case with an explanation of the importance of nationality as a social fact that reflects the bond between the individual and the State, and its importance as a pre-requisite or pre-condition for the enjoyment and exercise of certain other rights.  Although only the State can determine what the requirements for conferring citizenship will be, as international law has evolved it has confined these conditions within parameters intended to protect the individual against abuse.  Based on the foregoing and in application of the principle of equal and effective protection of law and the principle of non-discrimination, the Court reasoned that States had to refrain from creating discriminatory laws or laws that, once applied, would have a discriminatory effect among different population groups when exercising their rights.  The Court went on to write that States also had a duty to combat discriminatory practices and to adopt affirmative action measures to ensure true equality, and a duty to refrain from adopting any laws or practices that increased the number of stateless persons, since statelessness made it impossible to exercise and enjoy rights and was extremely harmful to individuals.[14]


        82.       In this case, the Court found that during the proceedings on this case, first within the domestic system and then before the inter-American system, the State had shifted its position regarding the requirements for obtaining nationality, leading the Court to conclude that the Dominican Republic did not have any uniform rule regarding belated registration of birth.


        83.       The Court also dismissed the argument made by the Dominican authorities to the effect that the girls were not Dominican nationals because their parents, Haitian migrant workers, were considered to be in-transit persons.  It emphasized the principle of equality irrespective of an individual’s immigration status.  The Court wrote the following:  

a)          the migratory status of a person can never be a condition for a State to grant nationality, since migratory status can never be a justification for depriving a person of the right to nationality and of the enjoyment and exercise of his rights;[15]

b)         the migratory status of a person does not convey to his or her children, and


c)          birth within the territory of the State is the only condition that must be proved to obtain nationality in the case of persons who would not be entitled to any other nationality if they did not get nationality in the State where they were born.[16]

         84.      As for the belated registration requirements, the Court determined that under Dominican law, the requirements differed depending on the person’s age and depending on the authority having jurisdiction to register the person.  In this case, the Court found that the requirements demanded in the case of the Yean and Bosico girls were those reserved for minors over the age of 13, even though the two girls were under age 13.  The Court concluded that the State had acted arbitrarily, had not applied reasonable and objective criteria and had disregarded the higher interests of the children, all of which constituted discrimination against the Yean and Bosico girls, and forced them to remain stateless and thus in a position of extreme helplessness.[17]  The Court also found that their statelessness restricted their rights and adversely affected the full development of their personalities, a problem compounded by the discrimination that Dominican-Haitian children suffer in the Dominican Republic.


          85.      Contrary to what was done, the Court noted, the State should have taken the necessary measures to ensure that the girls were registered in the civil records.  Among the steps it should have taken was to set reasonable requirements capable of being satisfied, all with a view to ensuring the right to nationality.


           86.     For all these reasons, the Court held that by denying them their nationality, the State had left these children in an extremely vulnerable condition, had denied them the State’s protection and had subjected them to the fear of being expelled from Dominican territory and being separated from the family, all because they were unable to show proof of their Dominican nationality.  By all this, the Court held, the State had failed to comply with its obligation to ensure the rights of all persons subject to its jurisdiction.


           87.      The Court concluded that by refusing to grant Dilcia Yean and Violeta Bosico their nationality, the State had violated their right to nationality (Article 20 of the American Convention), and the right to equal protection (Article 24 of the Convention) in relation to the rights of the child (Article 19 of the American Convention) and the duty to respect and ensure rights and freedoms (Article 1.1 of the American Convention).


            88.       Further, the highly vulnerable state in which the girls were placed by virtue of their statelessness also adversely affected their right to juridical personality (Article 3 of the American Convention) and their right to a name (Article 18 of the American Convention).  The Court explained that nationality is a pre-requisite for recognition of juridical personality; violation of this right is destructive to human dignity as it denies the individual the protection of the law.[18] The right to a name is essential to a person’s identity and one of the ways that States ensure this right is by facilitating registration of births and by refraining from interfering with or limiting the parents’ choice of a name for their children.  Once the child is registered, the State must guarantee that person will be able to keep or get back his or her surname. 


           89.       The danger caused to these two girls by the violation of these rights was evident in the fact that for one full year one of them was unable to attend school by day. Instead, she was forced to go to attend night school with adults.  The Court further concluded that the violation of the girls’ right to nationality, their right to juridical personality and their right to a name had had a negative effect on the development of their personalities. 


           90.       In the case of the violation of the rights to a fair trial and to judicial protection (Articles 8 and 25 of the American Convention), the Court found that it could not adjudicate the question of the violation of these rights as the facts supporting the alleged violation of these rights occurred prior to the date on which the Dominican Republic recognized the Court’s contentious jurisdiction.


           91.       The Court also found that the State had violated the right to humane treatment (Article 5 of the American Convention) in the case of the mothers and one sister of the Yean and Bosico girls, because of the sense of uncertainty and insecurity they had suffered by reason of the girls’ defenselessness and the possibility that they might be expelled from the State of which they were nationals.


           92.       As for reparations, the Court regarded the Yean and Bosico girls, their mothers and the sister of the Bosico girl to be injured parties in this case.  Based on its analysis of the violations described above, the Court ordered the State to pay the sum of US$ 8,000 in reparations to each of the two girls.  In the case of the mothers and the sister of the Bosico girl, the Court reasoned that its judgment was in itself a form of reparations.


           93.       Furthermore, and as measures of satisfaction, the Court ordered that the judgment be published and that a public ceremony be held for the State to acknowledge international responsibility and apologize for the harm caused to the Yean and Bosico girls and their families.  As for the rules and regulations governing belated registration of birth, the Court made note of the changes that the State had introduced while the case was being heard.  Nonetheless, it ordered the Dominican Republic to adopt, within a reasonable period, the legislative and other measures necessary to regulate belated registration, to make it a simple, accessible and reasonable procedure that also features an effective means by which to challenge decisions.  The Court also urged the State to consider the situation of Dominican children of Haitian descent when introducing those reforms, so that the requirements do not become an obstacle to obtaining nationality, are clearly spelled out, are uniform and are not left to the discretion of the registering authority.  The Court also urged the State to take steps to reduce the number of belated registrations and to educate registration officials on the subject of human rights.


           94.       Judge Antônio Augusto Cançado Trindade wrote an explanation of his vote in which he discussed the regulatory advances in the area of nationality and the significance of this judgment.


          ●         Personal liberty, right to a fair trial, freedom of movement and residence,
                     and the right to judicial protection


           Petition Elias Gattass Sahih vs. Ecuador


           95.     In February 2005, the Commission approved the Admissibility Report for Petition 1/03, presented on behalf of Elias Gattass Sahih against Ecuador.[19]  The facts in this case can be summarized as follows:  Mr. Gattass Sahih arrived in Ecuador in 1985, and worked as an engineer.  While in Ecuador, Mr. Gattass Sahih married an Ecuadorian woman by whom he had a daughter. The General Bureau for Alien Affairs granted Mr. Gattass Sahih an indefinite visa, category VI.  Sometime thereafter, Mr. Gattass’ wife petitioned to have the visa revoked.  The Advisory Board on Immigration Policy agreed to the petition and revoked Mr. Gattass Sahih’s visa on November 21, 2001.  Mr. Gattass Sahih was never notified of the administrative proceeding.  On December 5 of that year, police arrested Mr. Gattass Sahih and instituted a criminal action for deportation.  On December 9, Mr. Gattass Sahih filed a petition of constitutional amparo against the revoking of his visa and the criminal action for deportation.  The court agreed to hear the petition and an order was issued to have the effects of the measure being challenged temporarily stayed.  With that, Mr. Gattass Sahih was released.  On January 22, the judge denied the petition of amparo. When an appeal was filed with the Constitutional Court to challenge that ruling, the Constitutional Court upheld the lower court ruling on June 7, 2002, on the grounds that at the hearing held in the deportation case, Mr. Gattass Sahih had been given the opportunity to exercise his right of defense, to present evidence, make observations and arguments and to be represented by counsel.


           96.       The petitioners point out that the alleged victim’s right to a fair trial was violated in the administrative proceeding in which Mr. Gattass Sahih’s visa was revoked.  They further contend that the arrest and deportation of Mr. Gattass Sahih were violations of the duty to adopt domestic legislative measures (Article 2), the right to personal liberty (Article 7), the right to a fair trial (Article 8), the right to freedom of movement and residence (Article 22), and the right to judicial protection (Article 25), in keeping with the obligation to respect rights (Article 1.1), all of which are recognized in the American Convention.


           97.       The State’s contention was that the petition was inadmissible because internal remedies had not been exhausted.  In the present case, those internal remedies would be the petition of habeas corpus, an action challenging the constitutionality of an act, and the contentious administrative-law jurisdiction.  The State went on to contend that the petition of amparo was the wrong recourse on the grounds that it was admissible only when the following conditions obtained:  the action being challenged must be a lawful action or omission on the part of a public authority; the action or omission violates or could violate a right protected under the Constitution or by an international treaty; and that an imminent threat of grave danger is present.


           98.       The State explained that under the Alien Affairs Law, the decision to grant, deny or revoke a visa was the sovereign and discretionary authority of the Advisory Board on Immigration Policy.  Finally, it pointed out that the petition was manifestly groundless inasmuch as the facts did not constitute a violation of human rights.


           99.       The petitioners argued that the internal remedies were exhausted with the ruling from the Constitutional Court.  They added that the petition of habeas corpus was not the proper remedy as Mr. Gattass Sahih had been set free with the writ of amparo; they did not file a challenge of unconstitutionality because the victim could not file it; they had not resorted to the contentious administrative-law jurisdiction as this was a discretionary act so that the contentious administrative-law jurisdiction would not have been the proper avenue. 


           100.     In examining the petition’s admissibility, the IACHR took the following factors into account.  First, it determined that it did have jurisdiction ratione personae, ratione loci, ratione temporis, and ratione materiae. In examining the question of exhaustion of local remedies, the Commission began by determining that the remedies that had to be exhausted were those that were available and effective.  In this case, the IACHR found that the remedy of habeas corpus was unnecessary because Mr. Gattass Sahih was not in custody.  Furthermore, he did not have standing to bring an action challenging constitutionality, and could not turn to the contentious administrative-law jurisdiction as the decision of the administration was a discretionary one.


           101.     Because the complaint concerned a failure to recognize the guarantees of due process in the proceeding that revoked his visa, the petition of amparo was seeking a review of the administrative proceeding and nullification of its effects.  In fact, in a similar case in which a visa was revoked, the remedy was effective in defending judicial guarantees.  The Commission therefore concluded that the petition of constitutional amparo was the appropriate means for Mr. Gattass Sahih to defend his rights.


           102.     The Commission further determined that the petition was lodged within the six-month time period following the decision that exhausted the remedies under domestic law.  Furthermore, it did not find that this matter was pending with another international arrangement for settlement.


           103.       The State asked the Commission to dismiss this petition as being manifestly groundless and out of order and on the grounds that it did not state facts that, prima facie, established a violation of human rights.  The IACHR reiterated that to examine the question of admissibility, it need only determine whether the facts of the case could, prima facie, constitute a violation and whether the petition is manifestly groundless or obviously out of order.  The standard that the Commission uses to evaluate the issue of admissibility is different from that used to examine the merits.  When examining the question of admissibility, it need only make a summary, prima facie assessment that does not imply any prejudgment of the merits.  In this case, based on the documents submitted by the parties, the Commission found that the facts alleged could tend to establish a violation of the right to personal liberty, the right to a fair trial, the right to freedom of movement and residence and the right to judicial protection, in relation to the duty to respect and ensure rights and the duty to adopt domestic legislative measures (Articles 7, 8, 22, 25, 1.1 and 2 of the American Convention, respectively).  For the foregoing reasons, the Commission concluded that it was competent to examine the petition and that the latter was admissible.


            ●          Right to life


           “Operation Gatekeeper


           104.     In 2005, the Commission also decided the admissibility of the petition lodged on behalf of Víctor Nicolás Sánchez and 354 other Mexican nationals:[20] 240 were identified by name and 114 were not.  The petitioners alleged that all these people died between January 21, 1995 and February 12, 1999, as a consequence of “Operation Gatekeeper.”  They were attempting to cross the westernmost sector of the border between Mexico and the United States, between the Mexican states of Baja California and Sonora on one side and the U.S. state of California on the other.  The petitioners added that in the four years prior to the date on which the petition was lodged with the Commission, hundreds of migrants had died trying to cross the border.  They argued that the number and the causes of death were directly attributable to “Operation Gatekeeper.”


            105.     The petitioners explained the context in which “Operation Gatekeeper” had emerged.  It was part of a “prevention through deterrence” strategy to stop irregular migration.  They reported that by conservative estimates, over 300,000 unauthorized Mexican migrants entered the United States each year, in addition to the thousands of migrants from Central and South America.  The most frequently used corridor along the migration route was Tijuana-San Diego.  The U.S. authorities planned to seal off the traditional migrant crossing and trafficking points by increasing personnel and installing physical barricades so that migrants would have to re-route to areas where the crossing was more difficult but apprehension easier.


            106.     The petitioners argued that with “Operation Gatekeeper,” whose goal was to prevent irregular migration by making it more difficult to cross the border, the United States had incurred international responsibility for violation of Article I of the American Declaration.  Those who designed this operation knew that other migrants would be desperate to cross and would be forced to shift east of the San Diego, California region, and attempt to enter by way of the Tecate Mountains and the Imperial Desert.  This was and is much more dangerous terrain, and is where the alleged victims perished.


            107.     “Operation Gatekeeper” was launched in three stages. In the first two stages (1993-1997), apprehensions in the San Diego sector were down 47%, while those in the El Centro sector rose exponentially.  The petitioners also reported that the death toll among undocumented migrants had increased as the Operation continued.  They stated that as of May 9, 2001, 635 people had died from such causes as hypothermia, heat stroke, drowning, fire, falls, snake bite and attacks by wild animals.  The petitioners pointed out that despite the enormous increase in the death toll, this operation had done nothing to deter migration.  On the contrary, hundreds of thousands of persons continued to cross the border into the United States irregularly, braving the risks of the mountains and deserts.  Nothing in the statistics showed that migration had dropped off; instead, migrants had simply shifted their route eastward and the migrant smugglers or polleros had taken on a more pronounced role.


            108.     The petitioners’ contention was that the United States had devised and put into practice its migrant and border control policy knowing full well that it would result in the deaths of migrants attempting to cross into the United States.  It had thereby violated Article I of the American Declaration, the principle of good faith, and the theory of abuse of right.  The petitioners asserted that U.S. government officials were aware of the new risks and deaths attributable to the implementation of “Operation Gatekeeper” and these dangers were part of the original plan.  The petitioners added that little by little they had tempered the lethal consequences of this operation, in a joint effort with the Government of Mexico.


            109.     The petition provided little information about the victims.  The petitioners argued that in this case, the alleged victims were not required to exhaust domestic remedies because there were no judicial remedies in the United States intended to protect the rights enumerated in the petition.  Hence, they reasoned, the petition was admissible.  They pointed out that the United States could not evade responsibility for the deaths of the migrants by blaming smugglers and the Government of Mexico.  In fact, in the petitioners’ view, Operation Gatekeeper had only made the smugglers a necessity.


            110.     The petitioners explained that the United States Constitution gave the Federal Government absolute power over immigration and border control policy, giving it the authority to put immigration control policies into effect that would be unacceptable to its own citizens.  Therefore, since the thesis of the non-justiciability of immigration policies had made its way into case law, recourse to the courts for an examination of the effects this policy had on migrants’ human rights was simply not an option.  The petitioners argued that they could not have turned to the courts seeking reparations, as they would have been denied standing.  They added, moreover, that the victims were indigent and unable to obtain representation in the United States.


            111.     The petitioners argued that States operated through actions and omissions and that the actions in this case included the creation of “Operation Gatekeeper;” the omission in this case was the failure to take steps to minimize the potential loss of human life, in violation of Article I of the American Declaration.  The petitioners’ contention was that it mattered not that the deaths were not the immediate result of the State’s acts or that the State’s intention was not that these deaths should have occurred, because the motive of the agent violating rights was not a relevant consideration.


            112.     As for the principle of good faith and the theory of abuse of rights, the petitioners argued that these were basic principles of international law recognized in the OAS Charter (Article 3.c) and the American Declaration (preamble and Article XXIV) by virtue of which the United States was not permitted to exercise its authorities, including that of border control, in a manner that would undermine the basic rights of persons.[21]   Finally, the petitioners argued that the State’s obligations existed irrespective of the supposed culpability of those attempting unauthorized entry into the United States.


            113.     In its response to the petition, the State argued that the petition did not state facts that, prima facie, tended to establish a violation of the rights protected by the American Declaration; that the petitioners had not exhausted the remedies under domestic law, and that the petition was obsolete because of the changes introduced in United States border police.  The State argued that the petitioners were unable and would never be able to demonstrate that the alleged violations of rights were attributable to the action of the State, since the fatalities occurred because those who died were ill-prepared to travel over difficult terrain.


            114.     The United States’ contention was that the American Declaration did not establish an “every reasonable effort” standard in respect of the duty to minimize threats to the right to life resulting from general public policy.  However, the United States did describe the efforts made to minimize the threats to the lives of those who crossed the border illegally, such as the Border Safety Initiative.  For all these reasons, the State concluded that it was acting in good faith in the conduct of its border control policy.


            115.     The State also argued that it was not to blame for the topography of the terrain or for the unlawful activity that its agents were attempting to stop.  The State further asserted that it would be unreasonable to contend that a State had an obligation to facilitate unlawful acts or to generally abdicate its sovereign right and duty to control the entry of aliens into its territory.  It added that in this case, the right to life hinged on an individual’s decision as to whether to risk traveling the hostile terrain along the southern border of the United States.  The right to life did not, the State reasoned, impose upon it a positive obligation to prevent all loss of life; instead, the right to life meant that the State had a duty to protect people against arbitrary deprivation of life, and that in this case its policies were reasonable. 


            116.     As for the exhaustion of the remedies under domestic law, the State argued that remedies did exist against any human rights violations –if they did indeed occur- and civil and criminal punishments would be imposed.  In this case, the petitioners made no mention of any judicial recourse they may have attempted or any lobbying effort they might have carried out.   In the State’s view, the proper recourse to challenge the border control policy was Congress, not an international human rights body.  The State added that none of the exceptions to the rule requiring exhaustion of domestic remedies applied in this case.


            117.     Finally, the State added that the petition had become obsolete because of changes introduced in border control policies, including efforts to rescue aliens on the border.  It noted that the lives of more than 5,000 people had been saved in rescue operations between June 1998 and February 2003.  Furthermore, it asserted, other practices had been put into place, such as Operation Desert Safeguard and creation of the Border Patrol Search, Trauma and Rescue Team “BORSTAR.”   The United States and Mexico signed an agreement for an Action Plan to Combat Border Violence and Improve Border Security, as well as a Memorandum of Understanding for safe, orderly, dignified and humane repatriation of Mexicans.  Because of these changes, for every fatality on the border, BORSTAR now saved four lives. 


            118.     The petitioners further asserted that the State had waived any opportunity to dispute the merits and form of the petition because of its tardiness in responding to the petition and because of the impact that delay had had on the relatives of the victims.  They therefore requested that the Commission disregard the State’s response and proceed with its analysis of the petition’s merits.


            119.     In response to the State’s argument that the facts did not establish any violation of the American Declaration, the petitioners essentially repeated the arguments made in their petition.  They insisted that there was no evidence to suggest that the government had taken sufficient and lasting measures and, in any case, the petition made reference to the harm caused.


            120.     As for non-exhaustion of the remedies under domestic law, the petitioners again repeated the reasons why they were prevented from exercising those remedies and their argument that it was up to the State to show that such remedies existed and that they had not been exhausted.  The State, they asserted, did not do this.


            121.     In its analysis of the admissibility of the petition, the Commission determined that it was competent ratione personae, ratione materiae, ratione temporis and ratione loci to examine the case.  However, of the 354 victims claimed in the petition, 114 were not identified by name, although their sex, approximate age, date of discovery of the body and cause of death were known.  Because the IACHR was not competent to hear class actions, it concluded that it did not have competence ratione personae in the case of the 114 unidentified alleged victims.


            122.     The Commission considered the petitioners’ argument regarding the State’s delay in responding to the petition.  Under Article 30.3 of the Commission’s Rules of Procedure, the State has two months in which to respond to a petition.  The Executive Secretariat may grant duly-founded extension requests, but those extensions are not to exceed three months from the date of the first request for information from the State.  In this case, the petition was sent to the State on July 8, 2002.  The State requested a one-month extension on September 9, which was granted.  The State finally responded to the petition on February 20, 2004.


            123.     The Commission was troubled by the State’s tardiness in responding.  But it was also mindful that it had to apply and interpret its Rules of Procedure in the manner that best served its mission of promoting and defending human rights in the Americas.  Given the recent date and complexity of the facts reported by the petitioners and the number of victims and because the State’s response could have helped to resolve the matter, the Commission decided to accept the State’s response and the petitioners’ observations on it.  


            124.     As to the question of whether any of the exceptions to the rule requiring exhaustion of domestic remedies applied in this case, the Commission’s view was that no such exceptions applied.  The Commission’s position was that the precedents cited by the petitioners to make the case that internal remedies would not work, were not applicable.  Since even the most recent precedent cited was from 1977, the Commission did not believe that these precedents would be useful in helping it to assess how the U.S. courts would resolve this matter today.  The Commission recalled its own experience in the case of the interdiction of the Haitian boat people in 1993, the case of Rafael Ferrer-Mazorra et al., and the case of Mario Alfredo Lares-Reyes et al. Based on the foregoing, the Commission considered that there was not enough information to sustain the argument that, because this was a matter of immigration and border policy, the petitioners would not have won in U.S. courts.  For similar reasons, the Commission dismissed the petitioners’ arguments regarding lack of standing or indigence. Regarding lack of standing, the Commission emphasized that what mattered was that the alleged victims had standing to bring actions, not whether the petitioners had standing. In view of the above, the Commission determined that the petition was inadmissible and therefore did not examine the other admissibility requirements.


125.     The Commission did, however, want to express its concern over the matters described in the petition, which were circumstances in which the lives and personal safety of persons crossing the border between two member States of the OAS had been and continued to be at risk.  The Commission decided to continue to monitor the situation, in keeping with its mandate.  


            126.     The President of the Commission, Clare K. Roberts, wrote a concurring opinion to explain the reasons why he believed the petition was inadmissible, reasons that were different from those of the other members of the Commission.  Commissioner Roberts was of the view that the petition did not establish facts that constituted a violation of rights protected by the American Declaration.  In his opinion, the Commission had recognized that under international law, States had discretionary authority to control the entry of aliens into their territory.  The Commission had held that the exercise of that authority could be interpreted as part of the State’s obligation to ensure the safety and security of its population, and that the State was required to exercise it in accordance with its international human rights obligations, irrespective of the nationality of the person or any other factor, including his or her immigration status.


            127.     Commissioner Roberts wrote that the State had not incurred any international responsibility by having used its geography to deter unauthorized immigration.  He went on to observe that people were taking terrible risks to gain unauthorized entry into the United States and, sadly, many were dying tragic deaths in the process.  As the petitioners had pointed out, a number of factors were driving this phenomenon, among them the availability of job opportunities and a desire to reunite families.  Given economic and immigration policies, the risks the migrants were taking were  somehow foreseeable and may have made it morally incumbent upon the receiving State and other States to take steps to relieve the crisis. The United States had launched a number of measures in that direction, as described above.  Commissioner Roberts shared his colleagues concern and agreed that the IACHR had to monitor the situation as part of its mandate.  Nevertheless, he did not believe that the facts in the case were grounds for filing an individual petition with the IACHR.  He therefore considered the petition to be inadmissible.


[7] Acosta Calderón vs. Ecuador Case. Judgment of June 24, 2005. Series C No. 129.

[8] Acosta Calderón vs. Ecuador Case. Judgment of June 24, 2005, Series C No. 129, paragraphs 74-75.

[9] Acosta Calderón vs. Ecuador Case. Judgment of June 24, 2005, Series C No. 129, par. 78.

[10] Acosta Calderón vs. Ecuador Case. Judgment of June 24, 2005.  Series C No. 129, par. 105.

[11] Acosta Calderón vs. Ecuador Case, Judgment of June 24, 2005. Series C No. 129, par. 125.

[12] Case of the Yean and Bosico Girls vs. Dominican Republic. Judgment of September 8, 2005, Series C No. 130.

[13] Case of the Yean and Bosico Girls v. Dominican Republic. Judgment of September 8, 2005, Series C No. 130, par. 134.

[14] Case of the Yean and Bosico Girls vs. Dominican Republic. Judgment of September 8, 2005, Series C No. 130, paragraphs 141-143.

[15] Juridical Condition and the Rights of the Undocumented Migrants, par. 134.

[16] Case of the Yean and Bosico Girls vs. Dominican Republic. Judgment of September 8, 2005.  Series C No. 130, par. 156.

[17] Case of the Yean and Bosico Girls vs. Dominican Republic, Judgment of September 8, 2005.  Series C No. 130, par.166.

[18] Case of the Yean and Bosico Girls vs. Dominican Republic.  Judgment of September 8, 2005.  Series C No. 130, par. 178-180.

[19] Inter-American Commission on Human Rights, Admissibility Report 09/05, Petition 1/03, Elias Gattass Sahih, February 23, 2004.

[20] Inter-American Commission on Human Rights, Inadmissibility Report N° 104/05, Petition P65/1999, Victor Nicolas Sanchez et al., October 27, 2005.

[21] The petitioners added that these principles were fully established in international law and had been embodied in numerous instruments, such as Article 2.2 of the United Nations Charter, Article 26 of the Vienna Convention on the Law of Treaties, and Article 300 of the United Nations Convention on the Law of the Sea.