Santo
Domingo, Dominican Republic—The Inter-American Commission on Human Rights
(IACHR) conducted an on-site visit to the Dominican Republic on December 2-5,
2013. The purpose was to observe the situation related to the rights to
nationality, identity, and equal protection without discrimination, along with
other related rights and issues. The Commission carried out this visit to
oversee compliance with the international commitments made freely by the State
of the Dominican Republic in exercise of its sovereignty.
The
delegation was composed of IACHR Chairman José de Jesús Orozco Henríquez; First
Vice-Chair Tracy Robinson; Second Vice-Chair Rosa María Ortiz; Commissioners
Felipe González, Dinah Shelton, and Rose Marie Antoine; Executive Secretary
Emilio Álvarez Icaza L.; Assistant Executive Secretary Elizabeth Abi-Mershed;
Special Rapporteur for Freedom of Expression Catalina Botero; and other staff
members of the Executive Secretariat. During the visit, various IACHR
delegations visited the provinces of Bahoruco, Dabajón, Jimaní, La Romana, San
Pedro de Macorís, Santo Domingo, and Valverde. The IACHR held meetings with
State authorities, civil society organizations, victims of human rights
violations, and representatives of international agencies. During its visit,
the IACHR received testimony, petitions, and communications from 3,994
individuals.
The
IACHR met with the President of the Dominican Republic, Danilo Medina Sánchez;
the Minister of the Presidency, Gustavo Adolfo Montalvo Franco; the Minister of
Foreign Affairs, José Manuel Trullols; the Legal Adviser of the executive
branch, César Pina Toribio; the Deputy Minister of the Presidency, Henry Molina
Peña; the Minister of Education, Carlos Amarante Baret; the Minister of Public
Health and Social Assistance, Lorenzo Wilfredo Hidalgo Núñez; the Minister of
Labor, Rosa Maritza Hernández; the Minister of the Interior and Police, José
Ramón Fadul; the Attorney General of the Republic, Francisco Domínguez Brito,
along with the Offices of Special Prosecutors for Human Rights, Children and
Adolescents, and Domestic Violence and Gender; the Director General for Migration, José Ricardo
Taveras Blanco; the Deputy Director General for Migration, Santo Miguel Román;
and the representative of the Dominican Republic to the Organization of
American States (OAS), Ambassador Pedro Vergés. It also met with the
Commissions on Human Rights, International Affairs, and Human Development of
the Chamber of Deputies; with officials from the Central Electoral Board; the
Specialized Land Border Security Corps (CESFRONT) in Jimaní and Dabajón; and
staff of the migrant detention center in Haina.
The IACHR held meetings
with civil society, with the following organizations present: Dominicanos por
Derecho, Participación Ciudadana, Centro de Formación y Acción Social y Agraria
(CEFASA), Solidaridad Fronteriza, Comisión Nacional de Derechos Humanos (CNDH),
Centro Bonó, Movimiento Socio Cultural para los Trabajadores Haitianos
(MOSCHTA), Observatorio Migrantes del Caribe (OBMICA), Asociación
Afrodominicana, Diversidad Dominicana, Fundación FUNCESI, Reconocido, Árbol
Maravilloso, Grupo Saragua, GIZ (German cooperation organization), Centro
Cultural Dominico Haitiano (CCDH), Consejo Nacional de Unidad Sindical (CNUS),
Afro Alianza Dominicana, Conamuca, Alas de Igualdad, Soy dominicano como tu,
Articulación Campesina, Red Afro, Coalición de ONGs por la Infancia, and Open
Society Justice Initiative. Organizations devoted exclusively to gender-related
issues also participated; these included El Movimiento de Mujeres Dominico-Haitiana
(MUDHA), Colectivo de Mujeres y Salud, Foro Feminista, and
Núcleo de apoyo a la mujer. The Commission also held
meetings with civil society organizations and with victims in Dabajón, in San Pedro de Macorís, La Romana, and Jimaní.
In
addition, meetings were held with international organizations, including the
Office of the United Nations High Commissioner for Refugees (UNHCR), UN Women,
UNAIDS, the World Bank, the International Labour Organization (ILO), the Food
and Agricultural Organization (FAO), and the Pan American Health Organization
(PAHO). In addition, the Commission met with various journalists, legal experts,
university personnel, and victims of human rights violations.
The
Dominican Republic belongs to the inter-American human rights system because of
sovereign decisions made by the State dating back to 1948, when it participated
in the adoption of the American Declaration of the Rights and Duties of Man. In
1959, the Dominican Republic participated in the creation of the Inter-American
Commission on Human Rights, and it ratified the American Convention on Human
Rights on April 19, 1978. The Inter-American Commission has carried out seven
on-site visits to the Dominican Republic: in 1961, 1963, 1965, 1965-1966, 1991,
1997, and 2013. In addition, the IACHR has processed petitions and requests for
precautionary measures from the Dominican Republic. The Inter-American Court of
Human Rights has handed down rulings in the Case
of Nadege Dorzema et al. (Guayubín Massacre) and in Dilcia Yean and Violeta Bosico. The Commission has also filed an
application with the Court in the Case of
Benito Tide Méndez et al., which is pending a decision.
The
Commission appreciates the State of the Dominican Republic’s invitation to
conduct the visit, which was conveyed after the IACHR expressed its interest in
doing so. The IACHR also thanks President Danilo Medina and his government for
everything it did to facilitate this visit. In addition, the IACHR thanks the
Dominican government and people for the hospitality they showed to the
delegation. In particular, the Inter-American Commission values and appreciates
the support of the government authorities and civil society organizations that
provided valuable assistance and cooperation in coordinating and implementing
the logistics of the visit. The Commission appreciates the efficient,
professional collaboration of the security team provided by the State, which
made it possible for it to carry out its activities of receiving information,
testimony, and complaints at various sites in the country, including the Club
de Profesores at the Universidad Autónoma de Santo Domingo. In addition, the
Commission appreciates the devoted and generous assistance of volunteers who
helped attend to those who came to the places set up to receive information and
complaints. The Inter-American Commission would like to thank those who offered
their testimony and presented complaints, many of whom traveled from far away
and had to wait for several hours due the large numbers of people who were
received.
The
Commission is well aware that the on-site visit is being carried out in the
context of a major historical challenge that goes beyond the current
circumstances. This is an issue that has deep roots and is extremely complex.
The
Commission would like to draw attention to the solidarity and generous nature
of the people of the Dominican Republic. Faced with the devastation,
desolation, and death caused by the earthquake that hit Haiti in January 2010,
the Dominican government and people responded—and continue to respond to this
day—with solidarity and fraternity. Moreover, Haitians who have immigrated to
the Dominican Republic have contributed and continue to contribute in
extraordinary ways to this country’s economic development.
Through
this visit, the IACHR has been able to appreciate various advances in the
development of democratic institutions and the protection of human rights. The
Commission particularly values and welcomes as a very positive step forward the
fact that, through the 2010 reform of the Constitution, international human
rights law and all international human rights commitments adopted by the State
are incorporated directly into domestic law, with constitutional ranking.
On
the other hand, during the visit the Inter-American Commission received
troubling informing concerning grave violations of the right to nationality, to
identity, and to equal protection without discrimination. The violations of the
right to nationality that the Commission observed during its last on-site
visit, in 1997, continue, and the situation has been exacerbated as a result of
Judgment TC 168/2013 of the Constitutional Court. An indeterminate but very
significant number of Dominicans, estimated by various sources at more than
200,000 people, have been arbitrarily deprived of their nationality as a result
of the ruling. Consequently, these individuals have seen their right to legal
personhood violated, and they live in a state of extreme vulnerability. This
situation disproportionately affects persons of Haitian descent, constituting a
violation of the right to equal protection without discrimination.
Right to Nationality
During
the visit, the IACHR focused its attention on the exercise and enjoyment of the
right to nationality in the Dominican Republic. Government officials and civil
society representatives agree in recognizing that the enjoyment of this right
is a challenge that must be addressed from a human rights perspective.
This
right is protected in a fundamental way in international human rights law, in
order to protect people from possible arbitrary acts by States. Article 20 of
the American Convention on Human Rights establishes that every person has the
right to a nationality, that every person has the right to the nationality of
the state in whose territory he was born if he does not have the right to any
other nationality, and that no one shall be arbitrarily deprived of his
nationality or of the right to change it.
In
general, the determination of who are nationals continues to fall under States’
domestic jurisdiction; however, this authority is limited by States’ obligation
to provide individuals with equal and effective protection of the law without
discrimination, and by their obligation to prevent, avoid, and reduce
statelessness.
On
September 23, 2013, the Constitutional Court of the Dominican Republic handed
down Judgment 168/13, whereby it gave a new interpretation as regards the
acquisition of nationality by individuals born in the country to foreign
parents in transit. Based on this interpretation, individuals who previously
had been recognized as having Dominican nationality were denationalized.
With
respect to a particular case, the Constitutional Court determined that even
though the petitioner was born in Dominican territory and had been registered
as such by the appropriate authorities at a time in which the Constitution
recognized jus soli as a means to
recognize nationality, the new interpretation of “foreigners in transit”—which
pairs this concept with that of a foreigner with irregular status—stripped her
of the right to Dominican nationality. Through this ruling, the Constitutional
Court retroactively changed the interpretation of “foreigners in transit” in
the constitutions in effect from 1929 to 2010, which established that category
as a restriction to the acquisition of the right to nationality by jus soli. The court stated that
“foreigners in transit” refers to those individuals who do not have legal
domicile in the Dominican Republic because they lack a residency permit.
Based
on the foregoing, the Constitutional Court ordered the General Office of
Migration to issue a temporary immigration permit until such time as the
National Plan for the Regularization of Foreigners with Irregular Migration
Status—provided for in Article 151 of the 2004 Migration Law—determines the
conditions under which these types of cases can be put on a regular footing.
This new interpretation by the Constitutional Court retroactively strips the
right to Dominican nationality from tens of thousands of people who had been
considered Dominicans for their entire lives, many of whom were registered at
birth as Dominican nationals by the appropriate authorities and throughout
their lives were provided with other documents establishing their identity,
such as national ID cards (cédulas),
voter credentials, and passports.
Thus,
Judgment TC 0168/13 of the Constitutional Court denationalized a broad group of
people born in the Dominican Republic between 1929 and 2010. Various sources,
including government sources, have estimated that at least 200,000 people would
be affected by the ruling, although the number has not been determined.
The
recent National Immigrant Survey carried out by the State in 2012, with the
support of the United Nations Population Fund (UNFPA), estimated the total
number of individuals born to Haitian immigrants to be 209,912. This entire population
could potentially be affected by the court’s decision. This figure, however,
does not include other generations of people of Haitian descent born in
Dominican territory since 1929 whose parents were themselves born in the
Dominican Republic.
For
its part, the Central Electoral Board identified 24,392 individuals born in the
Dominican Republic to foreign parents whose births were registered in the
national Dominican civil registry using documents other than national ID
cards—that is, using a card called a ficha,
a foreign passport, or no document whatsoever. Of this number, 13,672
individuals are of Haitian origin. However, this figure does not include
individuals whose births were not registered. This list also does not include
the second, third, or later generations of individuals of Haitian origin whose
births were recorded using a valid Dominican ID card. These individuals will
also be affected by the Constitutional Court’s decision, which will have a
“ripple effect” that will have an impact on all generations born in the
country.
“I am
now living a civil death—I walk down the street but I don’t exist,” one such
person said. In Batey Libertad, in the province of Valverde, the IACHR heard
testimony from a woman who presented a birth certificate that shows she was
born in 1981 at the Hospital de Mao, in the Dominican Republic. According to
her testimony, she has not been allowed to register any of her six children: “I
went to the hospital to register the kids, but they told me that if I don’t have
a cédula I can’t register them. And I
go to get my cédula at the [Central
Electoral] Board and they tell me I don’t have the right to a cédula because I’m a foreigner. And I tell them, ‘How can I be a
foreigner if I was born here and I’ve always lived here.’” Another woman who
presented testimony in Santo Domingo indicated that her daughter who was born
in 2013 is not registered: “They don’t want to register my youngest daughter;
they are refusing to register her because they say her grandmother is Haitian.
It’s as if she doesn’t exist. She’s stateless. She is not from here or from
there.”
This
situation affects people from families who have been in the Dominican Republic
for several generations. The IACHR heard testimony from a woman who arrived in
the country from Haiti 47 years ago: “The government of the Dominican Republic
went to get me to cut sugar cane because the harvest had started and they
needed people. And so I started to work there and I had my first child, a son.
When Johnny was born, the government of the Dominican Republic gave me 20 pesos
because he was a male child who could cut sugar cane.” As she explained it, she
registered her six children, all born in the Dominican Republic, using a card (ficha) that the Dominican authorities
issued to her as a foreigner with authorization to work. However, the Central
Electoral Board has refused to issue or renew cédulas for them in recent years, arguing that this type of ficha is no longer valid for this
transaction, and their grandchildren have also been refused an ID card or birth
certificate.
Arbitrary Deprivation of Nationality
The
Commission considers that the Constitutional Court’s ruling implies an
arbitrary deprivation of nationality. The ruling has a discriminatory effect,
given that it primarily impacts Dominicans of Haitian descent, who are
Afro-descendant persons; strips nationality retroactively; and leads to
statelessness when it comes to those individuals who are not considered by any
State to be their own nationals, under their laws.
The
Commission believes it is pertinent to state once again that nationality
constitutes the legal connection between an individual and a particular State,
one that ensures that the individual will have a minimal measure of protection
in international relations and that has an impact on the exercise of other
political and civil rights, as well as economic, social, and cultural rights.
In addition, international recognition of every person’s right to nationality
imposes on States the obligation to prevent and eradicate statelessness. Along
these lines, the obligations rooted in international human rights law require
that States refrain from applying policies, laws, judgments, or practices that
result in people being unable to have access to any nationality, as the
Inter-American Court established in the Case
of the Girls Yean and Bosico, in its judgment of September 8, 2005. That
judgment also establishes that when there is a risk of statelessness, the
person who might be affected need prove only that he or she was born in the
territory of the State in question to obtain the respective nationality.
Many
of those affected by Judgment 168/13 of the Constitutional Court are
individuals who were born in the Dominican Republic and were previously recognized
by the State as being Dominican, by means of a document issued by State
institutions certifying them as such. These individuals have close ties in the
Dominican Republic: they have paid taxes, created wealth, and contributed to
social security; they were raised and educated in the country and have
established their families there. In testimonials before the IACHR, they
expressed a strong sense of Dominican identity. As one young man in Santo
Domingo put it, “I was born under the Dominican flag and do not know any other
flag.”
These
individuals have been affected by arbitrary decisions adopted by the Central
Electoral Board over the course of the last few years. The Commission received
information indicating that many officials from that agency deny documentation
to individuals born in the Dominican Republic. In fact, in some cases, after
courts ordered such documents to be issued, the Central Electoral Board refused
to follow the court order. Some people who work in that agency deprive
individuals of their nationality, arbitrarily and at their discretion.
The
lack of recognition of these individuals’ legal personhood as a result of their
not being registered, or because of difficulties in access to a cédula creates a situation of extreme
vulnerability that leads to violations of other human rights, in a vicious
circle that can be broken only through recognition of their nationality.
The
Central Electoral Board’s denial of documents creates obstacles for individuals
in the exercise of their right to move about freely in the country, since they
end up without proof of their Dominican nationality. According to testimony
received by the IACHR, one woman of Haitian descent was asked by the driver of
a public bus to show documents to prove her Dominican nationality. Another
woman said that out of fear of being deported to Haiti, “where I don’t have
anyone,” she does not travel to see her grandchildren, who live in a city less
than an hour away from where she lives.
The
denial of documents to a large number of people born in the Dominican Republic
is a practice that has been carried out in recent years, a time in which there
have also been arbitrary deportations and expulsions. Among those deported were
individuals born in the Dominican Republic whose Dominican nationality the
Dominican State had recognized through the issuance of birth certificates and
ID cards. The Inter-American Commission views the order by the President of the
Republic to suspend deportations as a positive step. Nonetheless, the
Commission received information on the ground indicating that the deportations
continue, though at a slower pace than in previous years.
The
Inter-American Commission was also able to observe that denationalization
primarily affects persons of Haitian descent born in the Dominican Republic.
Judgment 168/13 of the Constitutional Court has a disproportionate impact on
these individuals, because they constitute the majority of the country’s
migrant population. The Inter-American Court has established that there is an inextricable
link between the obligation to respect and guarantee human rights and the
principle of equal protection of the law without discrimination, and that this
should permeate every action taken by the State. In this sense, the State may
not act against any specific group of people for reasons such as race,
ethnicity, or national origin, among others.
Multiple Levels of Discrimination
Besides
affecting individuals born in the Dominican Republic in numerical terms, the
Commission observes that Judgment 168/13 disproportionately affects individuals
who are already subject to many forms of discrimination, particularly
discrimination based on race and poverty. On this point, in its analysis of the
situation in the Dominican Republic in April of this year, the Committee for
the Elimination of Racial Discrimination referred to three particularly
relevant aspects: the persistence of structural racism and discrimination based
on color and national origin; the link between poverty and racism in general;
and the “firm denial” by the State of the existence of racial discrimination,
which constitutes a critical obstacle in terms of compliance with its
international obligations.
The
IACHR visited several bateyes in
(communities of sugar workers) in different parts of the country and took note
of the conditions of poverty, exclusion, and discrimination in which its
inhabitants live. Poverty disproportionately affects Dominicans of Haitian
descent, and this is related to the obstacles they face in access to their identity
documents.
The
Commission heard many testimonials on the impossibility of finding a job
without having an ID card, and the difficulties and obstacles—often impossible
to overcome—in gaining access to basic services.
The
IACHR received multiple testimonials from individuals who studied through the
eighth grade but who could not go on to high school because they did not have a
national ID card. One mother with three of her four children in school told the
IACHR that she had been asked to present the children’s cédulas: “The teacher told me, ‘I’m going to have to kick out the
kids until the documents appear,’ and I told her, ‘Oh gosh, teacher, can you
just hang on a little bit longer because the documents are being processed and
they’re going to arrive any day.’ But that isn’t true. I don’t have anything in
process because they’re not going to accept them. I’ve seen people from my
community who go to give statements and they don’t accept them, so what can I
do.”
The
Commission also received testimony from people who were able to go to high
school even without a cédula but who
have not been able to have access to a university education. One woman born in
August 1994 in La Romana, in the Dominican Republic, said she had applied for
her cédula two years ago and since
then has been told that it is being processed: “I already finished high school
and I haven’t been able to get into the university because of this problem. I
would like to study to become a pediatrician, or a teacher; I really like
children. In fact, I’m working with children as a volunteer at an institution.
I would like to be the example for my siblings, but they are denying me a cédula and I can’t continue. Sometimes I
ask myself, is it because of the color of my skin? Because if it’s about nationality,
my parents came here when they were little, and I was born here. I always
wanted to study; that’s my passion. When they told me that I passed with good
grades, I cried—not out of joy but out of sadness, because I can’t go to the
university. Sometimes I wake up at 4 in the morning and can’t sleep. I just lie
there thinking about how much this affects me, and my tears start to come, and
it breaks me up just to think that if I end up having children, they’re going
to go through the same thing I went through, and that just breaks me up inside.
I’ve wanted to be the example for my family, and I don’t know how to find a way
out.”
The
Commission received many testimonials that pointed to the persistence of racial
discrimination not only in society in general, but also in terms of access to
public services specifically. Given the central importance of equal protection
without discrimination, the Commission underscores the need for the government
to adopt any measures that may be necessary to guarantee its effective
enjoyment, particularly to ensure the accountability of those acting on its own
behalf.
Access to Justice
One
of the safeguards for any human right is judicial protection, applied in a way
that is accessible and effective. During its visit, the Commission identified
several concerns with respect to access to justice in the area of the rights to
nationality, identity, and equal protection without discrimination,
particularly for people affected by Judgment 168/13.
The
Commission spoke with many people who stated that without a cédula they are unable to file a claim
or follow through with a judicial proceeding. One mother informed the
delegation that, since neither she nor her son have documents certifying that
they were born in the country, she cannot sue her son’s father for child
support. In the bateyes, members of
the communities referred not only to the problem of documentation, but also to
issues of geographical accessibility as well as the costs associated with
seeking justice. The Commission received consistent information with respect to
the Central Electoral Board’s practice of indefinitely holding onto documents
or suspending their delivery to Dominicans who are of Haitian descent or are
perceived as such. On another matter, the Commission received information on
several cases in which courts have issued writs for protection of
constitutional guarantees (recursos de
amparo) in favor of plaintiffs—for example, ordering the issuance of
documents—but the Central Electoral Board has failed to comply.
Intolerance and Incitement to Violence
The
publication of Judgment 168/13 of the Constitutional Court of the Dominican
Republic on September 23, 2013, produced reactions of both support and
rejection in the country. In particular, an atmosphere of hostility was created
against those who have criticized the ruling and defended the right to
Dominican nationality of those affected by it. According to information
received by the Inter-American Commission, statements directed against
journalists, intellectuals, lawyers, politicians, legislators, human rights
defenders, and public figures who have criticized the ruling have become
alarmingly aggressive. These individuals have been described as “traitors to
the homeland” and have received serious threats through social media, comments
in online newspapers, and slogans at protests and demonstrations calling for
“death to the traitors.” The Inter-American Commission expresses its concern
over the threats and disparaging remarks targeting individuals who have spoken
up to criticize the court decision.
For
example, on November 4, during a demonstration convened by the Red Nacional por
la Defensa de la Soberanía (National Network for the Defense of Sovereignty) in
support of the Constitutional Court’s decision, which was reportedly attended
by some public officials, organizations of human rights defenders and
journalists were apparently accused of being “traitors to the homeland” for
criticizing the decision. The demonstration proclaimed the slogan “death to the
traitors,” and a pamphlet was circulated, titled “The Treason Album,” which
included names and photos of journalists, human rights defenders, and
politicians who had criticized the ruling. In addition, Constitutional Court
Justices Isabel Bonilla Hernández and Katia Miguelina Jiménez Martínez, who
cast dissenting votes, were accused of being “traitors to the work of Duarte.”
In another demonstration on November 13, a group of community organizations in
the Santiago area reportedly held a symbolic ceremony in which they burned
Mario Vargas Llosa’s book The Feast of
the Goat and declared his son, Gonzalo Vargas Llosa—representative of the
Office of the UN High Commissioner for Refugees (UNHCR) in Santo Domingo—to be persona non grata, along with former
Haitian consul Edwin Paraison and the NGO Red Fronteriza Jano Siksé (RFJS).
Congresswoman
Guadalupe Valdez, who apparently had criticized the court’s ruling, reportedly
was accused of being a “traitor” and called before the Disciplinary Council of
the Chamber of Deputies for supposedly having participated in a demonstration
against the ruling, as part of a public event in which the president was
participating.
Journalists
Luis Eduardo (Huchi) Lora and Juan Bolívar Díaz filed a complaint with the
Federal District Prosecutor’s Office in which they asked for an investigation
to be opened into those responsible for threats made against them because of
their criticism of the court’s decision. In the complaint, they reported the
existence of a new pamphlet in which they appear caricatured as the devil and
identified as traitors. “The combination of the slogans in the public protests,
along with the content of the “Treason Album” and the pamphlet…contain
sufficient elements that would suggest that the purpose of the pamphlet is to
draw a connection with the aforementioned slogans in identifying, by full name
and image, the supposed ‘traitors’ who allegedly must be killed,” they
indicate.
In
this context, other cases have been reported in which human rights defenders
and members of the media have been stigmatized and have received threats. Among
those are the journalists Marino Zapete, Fausto Rosario Adames, Ramón Emilio
Colombo, and Javier Cabreja.
On
November 4, Ana María Belique, a leader and activist with Movimiento Reconocido,
reportedly received threats from individuals via the social media network
Twitter: “We’re going to have to move Belique to the same barrio where Sonia
Pierre lives” (a reference to a human rights activist and defender who died in
2011), and “we’re ready for anything; if it’s blood they want, blood they shall
have.”
Moreover,
the IACHR received information indicating that some rights defenders were being
stigmatized for carrying out their work. For example, one rights defender told
the Commission: “We [human rights] defenders are accused of being traitors and
anti-patriotic, of making money off Haitians…. It’s a constant harassment.”
Another rights defender told the IACHR that those who went to the
Inter-American Court in the Case of
Benito Tide et al. v. Dominican Republic were labeled traitors to the
homeland.
The
lawyer for Juliana Deguis Pierre, the person whose case was decided by the
Constitutional Court, reportedly received insults and threats that may be
connected to his activity as Deguis’s defense counsel. According to the
information received, the lawyer had been a victim of insults such as “damned
black man – run along to Haiti.” The assailants reportedly threatened to “split
his head open” for being “a defender of Haitians.” The lawyer has also attested
that his office is under surveillance, so he keeps it closed and has had to
take security precautions.
In
addition, a repudiation campaign is reportedly being carried out against
countries and regional and international organizations that apparently
expressed their disagreement with the constitutional ruling. Along those lines,
high-level government officials reportedly have issued statements questioning
the role of agencies such as the UNHCR or the OAS.
With
regard to these episodes, the Inter-American Commission observes that, in
principle, all forms of speech are protected by the right to freedom of
expression, regardless of their content and regardless of whether they enjoy a
greater or lesser degree of acceptance by society or the State. Nevertheless,
there are certain types of speech that—based on prohibitions specifically laid
out in international human rights law—are excluded from the sphere of
protection of this right, such as the “advocacy of national, racial, or
religious hatred” and speech that constitutes “incitements to lawless
violence,” understood as the clear incitement to commit crimes, under the terms
of international human rights law.
In
light of the foregoing, the Inter-American Commission notes that in a context
of deep societal polarization, the album and the slogan “death to the traitors”
would seem to constitute a direct call, collectively and without euphemisms,
for the killing of clearly identifiable and identified individuals. In this
regard, the Inter-American Commission calls to mind that these types of
statements could constitute incitements to violence, given the context in which
they were disseminated.
The
Inter-American Commission recalls that diversity, pluralism, and respect for
the dissemination of all ideas and opinions are essential conditions in any
democratic society. Accordingly, the authorities must contribute decisively to
the building of a climate of tolerance and respect in which all people can
express their thoughts and opinions without fear of being attacked, punished,
or stigmatized for doing so. In addition, in cases involving special risk, the
authorities have the duty to protect those exposed to that risk and to take
measures to ensure, among other things, their right to life, to personal integrity,
and to freedom of expression. Moreover, public officials should refrain from in
any way sponsoring speech that gives rise to cultural discrimination,
intolerance, or incitement to violence. It is essential that the authorities
forcefully condemn attacks and threats directed against individuals who
contribute to the public discourse through the expression and dissemination of
their thoughts, and encourage the relevant authorities to act with due
diligence and speed in clearing up the incidents and punishing the culprits.
Conclusions and Recommendations
The
Inter-American Commission carried out the visit that ends today in order to
analyze firsthand the situation of those affected by Judgment 168/13, in light
of the standards of the inter-American human rights system. The interviews with
representatives of the different branches of government, members of civil
society, and many individuals affected by the ruling, as well as the visits to
different parts of the country to understand the multiple aspects in which
these individuals’ rights have been affected, have all provided critical
information. The Commission will analyze that information in detail in the
coming months for the purpose of preparing a report with its conclusions and
recommendations.
The
Commission today shares its preliminary observations on the situation based on
its visit, and expresses its willingness to work with the State to find
solutions that protect fundamental rights and meet international human rights
standards.
Authorities
from the executive and legislative branches stated to the Inter-American
Commission that they recognize that a problem exists with respect to the
exercise of the right to nationality by persons of Haitian descent and are
aware of the need to find a solution. In this regard, in the spirit of working
in collaboration to find a solution that is respectful of human rights, the
Commission underscores that any measures adopted to respond to the challenges
identified in terms of the right to nationality, in particular those made
evident by Judgment 168/13 of the Constitutional Court, should have the
following characteristics:
1) They should guarantee the right to nationality of
those individuals who already had this right under the domestic legal system in
effect from 1929 to 2010.
2) People with a right to nationality, such as those
who were denationalized under ruling 168/13, cannot be required to register as
foreigners as a prerequisite for their rights to be recognized.
3) Measures to guarantee the right to nationality of
those harmed by Judgment 168/13 should be general and automatic. These
mechanisms must be simple, clear, fast, and fair. They must not be
discretionary or implemented in a discriminatory fashion.
4) The mechanisms must be financially accessible.
Finally,
in order to achieve a result that is effective, it is important to create an
opening for consultation and the participation of civil society and
representatives of the populations affected by the court decision.
Given
the seriousness of the rights violations that arise as a result of the lack of
identity documents, the Commission underscores that it is essential to take
urgent steps to guarantee the full enjoyment of the human rights of individuals
who have been deprived of nationality until such time as a long-term solution
is implemented to put an end to these situations. These urgent measures should
guarantee access for everyone to basic services such as health and education,
and should avoid, in an effective manner, any expulsion or deportation.
Finally,
the Commission underscores that everyone has the right to count on judicial
protection and due process, in a way that is accessible and effective, to
safeguard the rights to nationality, identity, and equal protection without
discrimination that constitute the primary focus of this visit.
