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Situation of Human Rights in the Dominican Republic

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Situation of Human Rights in the Dominican Republic OEA/Ser.L/V/II. Doc. 45/15 31 December 2015 Original: Spanish INTER-AMERICAN COMMISSION ON HUMAN RIGHTS Report on the Situation of Human Rights in the Dominican Republic 2015 www.iachr.org OAS Cataloging-in-Publication Data Inter-American Commission on Human Rights. Report on the situation of human rights in the Dominican Republic. p. ; cm. (OAS. Official records ; OEA/Ser.L/V/II) ISBN 978-0-8270-6523-9 1. Human rights--Dominican Republic. 2. Civil rights--Dominican Republic. 3. Haitians--Civil rights--Dominican Republic. 4. Haitians--Legal status, laws, etc.--Dominican Republic. I. Title. II. Series. OEA/Ser.L/V/II. Doc.45/15 INTER-AMERICAN COMMISSION ON HUMAN RIGHTS Members Rose-Marie Belle Antoine James L. Cavallaro José de Jesús Orozco Henríquez Felipe González Rosa María Ortiz Tracy Robinson Paulo Vannuchi Executive Secretary Emilio Álvarez-Icaza L. Assistant Executive Secretary Elizabeth Abi-Mershed Approved by the Inter-American Commission on Human Rights on December 31, 2015 TABLE OF CONTENTS EXECUTIVE SUMMARY 11 CHAPTER 1 | INTRODUCTION 21 A. Scope and objectives of the report 21 B. On-site visit to the Dominican Republic and follow up 23 1. Actions after the on-site visit to the Dominican Republic 31 2. Positive actions 34 C. Structure and methodology 36 D. Preparation, approval and follow-up of the report 39 E. Observations of the Dominican Republic on the report 40 CHAPTER 2 | THE RIGHT TO NATIONALITY AND JUDGMENT TC/0168/13 OF THE CONSTITUTIONAL COURT 45 A. General considerations 45 1. Historical background of Haitian migration to the Dominican Republic 52 2. The roots of racial discrimination in the Dominican Republic 57 3. The IACHR’s monitoring of the situation of Haitian immigrants and their descendants in the Dominican Republic 60 B. Constitutional and legal framework on the right to nationality 70 1. Acquisition of Dominican nationality prior to Constitutional Court judgment TC/0168/13 70 2. Constitutional Court judgment TC/0168/13 78 3. Decree No. 327-13: National Plan to Regularize Foreigners in an irregular migratory situation 84 4. Law 169 of 2014: A special regime for persons born in Dominican territory irregularly registered in the Dominican civil registry, and on naturalization 86 C. Principal concerns and standards regarding the right to nationality of Dominicans of Haitian descent and judgment TC/0168/13 87 1. The arbitrary and retroactive deprivation of the right to nationality of Dominicans of Haitian descent 99 2. The stateless condition of persons of Haitian descent 117 3. The right to identity of persons of Haitian descent 123 4. Obstacles to the effective enjoyment of rights stemming from the lack of recognition of juridical personality: inhuman and degrading conditions in the bateyes 126 5. Impact on the right to humane treatment of the persons affected 129 D. Conclusions and recommendations 131 CHAPTER 3 | RIGHT TO EQUALITY AND NON-DISCRIMINATION OF DOMINICANS OF HAITIAN DESCENT 137 A. General considerations 137 B. Constitutional and legal framework for equality and non-discrimination 140 C. Main concerns and standards on the forms of discrimination affecting Dominicans of Haitian descent as a result of Judgment TC/0168/13 143 1. Structural discrimination against persons of Haitian descent 146 2. Intersectoral discrimination against persons of Haitian descent 149 D. Conclusions and recommendations 155 CHAPTER 4 | ACCESS TO JUSTICE AND DUE PROCESS GUARANTEES FOR DOMINICANS OF HAITIAN DESCENT 163 A. General considerations 163 B. Constitutional and legal framework 165 C. Principal concerns and standards relating to access to justice, judicial protection and due process guarantees 167 1. Due process and judicial protection in proceedings in which Dominicans of Haitian descent are ultimately deprived of their nationality 169 1. Access to justice and judicial protection in the case of Dominicans of Haitian descent who experience multiple forms of discrimination in many areas of their daily lives 183 D. Conclusions and recommendations 188 CHAPTER 5 | INTOLERANCE, THREATS, AND INCITEMENT TO VIOLENCE AGAINST PERSONS WHO DEFEND THE RIGHT OF DOMINICANS OF HAITIAN DESCENT TO NATIONALITY AND TO NON-DISCRIMINATION 193 A. General considerations 193 B. Freedom of expression under the Constitution and the law 198 C. Principal concerns and standards for journalists, attorneys, human rights defenders, and other public figures who have expressed opposition to Constitutional Court judgment TC/0168/13 199 D. Conclusions and recommendations 203 CHAPTER 6 | HAITIAN MIGRANTS, IMMIGRATION OPERATIONS, AND DUE PROCESS 207 A. General considerations on the immigration phenomenon in the Dominican Republic 207 B. The Constitution and the law on the subject of immigration 212 C. Principal concerns and standards regarding migrants’ effective enjoyment of their human rights 215 1. The general human rights situation of Haitian migrants 216 1. Immigration operations and due process: detention and deportation 226 3. National Plan to regularize the status of foreigners in an irregular migratory situation 233 D. Conclusions and recommendations 240 EXECUTIVE SUMMARY Executive Summary | 11 EXECUTIVE SUMMARY 1. The Inter-American Commission on Human Rights has monitored the difficulties and obstacles that children of Haitian immigrants born since the early 1990s are encountering in Dominican territory in order to be registered and benefit from the papers that prove they are Dominican nationals, pursuant to application of the jus soli principle. At first, civil servants of the Civil Registry Offices would refuse to register the birth of children born in the Dominican Republic to Haitian migrants because their parents’ migratory situation was irregular. The argument commonly used by the authorities was that, according to the Constitution, the children of foreigners in transit could not acquire Dominican nationality on the basis of the jus soli principle. The national origin and migratory status of their parents have led Dominicans of Haitian descent to encounter various forms of discrimination throughout their lives, discrimination that has not only violated their rights to nationality, juridical personality, and equality and non-discrimination, but has also precipitated the violations of their other human rights. 2. On September 23, 2013, the Dominican Republic’s Constitutional Court handed down judgment TC/0168/13. Said ruling redefined, retroactively, the criteria for acquiring citizenship by application of the principle of jus soli by giving a new interpretation to the concept of foreigners in transit, equating this concept with that of a foreigner in an irregular migratory situation. Through this judgment, the Court retroactively changed the interpretation given to the term "foreigners in transit" in the Dominican constitutions in force between 1929-2010, all of which established said category as a constraint to acquire Dominican nationality by jus soli. Indeed, with regard to a particular case, the Court found that despite the fact that the appealing person was born in the Dominican Republic and had been registered by the authorities as such, at a time that the Constitution recognized the ius soli as a means acquiring nationality, the new interpretation of "foreigners in transit" deprived her of the right to Dominican nationality. 3. Judgment TC/0168/13 ordered the administrative transfer of all birth certificates of people born in the Dominican Republic as children of "foreigners in transit" from 1929-2007, to the birth registration book of foreigners, arbitrarily depriving of their nationality a significant number of people who enjoyed Dominican nationality, and leaving them in a situation of statelessness for considering them foreigners despite being born in Dominican territory and having identity documents that proved so. 4. The Commission considers that judgment TC/0168/13 by the Constitutional Court led to the arbitrary deprivation of nationality to all persons over whom it extended its effects on. At the same time, the ruling had a discriminatory effect, since it struck Inter-American Commission on Human Rights | IACHR 12 | Report on the Situation of Human Rights in the Dominican Republic mainly Dominicans of Haitian descent; retroactively depriving them of their nationality; and relegating them to the status of stateless persons, i.e., persons whom no State claims as its citizens under its laws. This situation has disproportionately affected people of Haitian descent, who frequently are identified as such, correct or incorrectly, based on the national origin or migratory status of their parents, skin color (especially those with a dark-colored skin), language ability or surnames, constituting a violation of the right to equality and non-discrimination. The Commission notes that over the years that it has monitored this situation and during his visit to the Dominican Republic, it has not received complaints or information on Dominicans of foreign descent, who were not of Haitian descent, who had faced barriers in recognition of their nationality, in access to the civil registry, as well as their identity documents. 5. The new interpretation of the Constitutional Court retroactively deprived of their right to Dominican nationality to tens of thousands of people who had been considered Dominican during all of their lifetime, many of which were registered at birth as Dominican nationals by the competent authorities, and who throughout their lives had been granted other identity documents such as identity cards, electoral
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