Case of the Yean and Bosico Children v. The Dominican Republic

Parties (including notable third parties)

Inter-American Commission on Human Rights (submitted on behalf of the Yean and Bosico children as the alleged victims) Dominican Republic (State party) Movement of Dominican-Haitian Women (‘MUDHA’), Centre for Justice and International Law (‘CEJIL’) and the International Human Rights Law Clinic (representatives of the alleged victims / Yean and Bosico children)

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Summary of Facts

The case concerns two children, Dilcia Oliven Yean (who was born on 15 April 1996 in the local health care centre in the Dominican Republic) and Violeta Bosico Cofi (who was born on 13 March 1985 in the Dominican Republic). Both children have mothers of Dominican nationality and fathers who are Haitians but they do not have contact with them.

The Court recognised that most Haitians and Dominicans of Haitian origin use the late declaration of birth procedure to declare their children born in the Dominican Republic as mothers usually give birth at home, given the difficulty of travelling to the hospitals in the cities, their limited financial resources, and their fear of making themselves known to the hospital officials, the police and officials of the office of the auxiliary mayor and being deported.

On 5 March 1997, when Dilcia was 10 months old and Violeta was 12 years old, Genaro Rincón Miesse (the MUDHA lawyer at the time), Tiramen Bosico Cofi (who accompanied her daughter, Violeta Bosico), and Martha Remigio (a cousin of Dilcia Yean's mother, who accompanied Dilcia Yean), went to the Registry Office of Sabana Grande de Boyá to request late registration of the birth of Dilcia Yean and Violeta Bosico, among other children. The documents that the applicants brought to the Registry Office of Sabana Grande de Boyá were the identity cards of the children's mothers. For Dilcia, they also provided the birth certification issued by the ‘local health center’ of Sabana Grande de Boyá and, in the case of Violeta, the certification of her birth issued by the auxiliary mayor of Batey Las Charcas, Sabana Grande de Boyá. The Registry Office refused the children late registration on the basis they did not meet the eleven requirements of the Central Electoral Board. As a result, the children were denied Dominican nationality and access to education. In particular, the absence of a birth certificate meant that the State did not allow Violetta Boscio to enrol in day school and instead had to enrol in school for adults during the evening.

On 11 September 1997, the Movement of Dominican-Haitian Women (‘MUDHA’) filed a petition requesting authorisation for late registration of birth for a group of children, including Violeta and Dilcia, which was ultimately refused.

On 28 October 1998, the Yean and Bosico children, through the MUDHA, submitted a petition to the Inter-American Commission on Human Rights based on the denial of birth certificates. On 27 April 1999, the Commission received an amended petition in English and request for precautionary measures submitted through the MUDHA, Centre for Justice and International Law (‘CEJIL’) and International Human Rights Law Clinic as representatives of the petitioners. A final version of the petition was submitted on 11 June 1999. Following further procedural steps and despite the State’s submission that it was interested in reaching a friendly settlement, the Commission submitted the application to the Court on 11 July 2003.

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Legal Arguments

Legal arguments by the Commission and Representatives

The Commission and representatives filed statements of Violeta Bosico, Tiramen Bosico Confi (the mother of Violeta Bosico), Teresa Tucent Mena (the sister of Violeta Bosico), Dilcia Yean and Leonidas Oliven Yean (the mother of Dilcia Yean) and expert report of Samuel Martinez (anthropologist), Débora E Soler Munczek (psychologist), Fredrick John Packer (lawyer and professor) and Genaro Rincón Miesse (the MUDHA lawyer).

The Commission and representatives argued that the failure to issue birth certificates to the Yean and Bosico children was based on discriminatory practices adopted by the State and excessive administrative requirements, which resulted in the violation of the children’s human rights under the American Convention. In particular, the State:

• Failed to comply with Article 19 of the American Convention because it did not adopt the necessary measures that ensured the protection of Dominican children of Haitian origin and failing to ensure their right to nationality, exposing the children to risk of being expelled from the Dominican Republic;
• Failed to comply with Article 20 of the American Convention as the Central Electoral Board requirements for the late declaration of birth were difficult to comply with, involved expenditure and constituted obstacles to prevent the enjoyment of the right to nationality of Dominicans of Haitian origin;
• Failed to comply with Article 24 of the American Convention as the treatment of the alleged victims was due to considerations relating to their origin, name and migratory status of their parents;
• Failed to comply with Article 3 of the American Convention as the refusal of Dominican authorities to register Dilcia and Violeta resulted in their exclusion from the State’s juridical and institutional system and deprived them of a fundamental right to recognition for more than four years.
• Failed to comply with Article 18 of the American Convention as the State failed to comply with its obligation to ensure that Dilcia and Violeta had a fundamental right to a name, nationality and a juridical personality.
• Failed to provide a mechanism or procedure to appeal a decision not to register an individual contrary to Articles 8 and 25 of the American Convention.

The representatives also argued that the State violated the rights of the family embodied in Article 17 of the American Convention, and Articles 5 and 12 of the American Convention (although no specific arguments were made in support).

Legal Arguments by the State

The State filed preliminary objections to the children’s application, being the petitioner’s failure to exhaust State domestic remedies, non-compliance with the friendly settlement proposal presented and an objection to the Court’s lack of competence.

Substantively, the State relied upon evidence of Amanda Rodríguez Guante (Director of the Palavé Basic Education School where Violeta Bosico studied) and Thelma Bienvenida Reyes (Civil Status Registrar of Sabana Grande Boyá). The State maintained that the refusal to register the children was due to a failure to comply with procedural requirements for late birth registration, and not discrimination. Specifically, the State argued:

• With respect to Article 19 of the American Convention, the fact that Violeta had problems with her education was not a State responsibility and despite a birth certificate she was allowed to attend school for several years.
• With respect to Article 20 of the American Convention, the fact the children were of Haitian origin was not why the registrars did not register them but rather not complying with the documents required.
• With respect to Article 24 of the American Convention, it was not proven that the registrars were instructed to prevent registration of children of Haitian origin.
• With respect to Article 3 of the American Convention, the State argued it had not violated the right to a juridical personality since it never prevented the children’s registration.
• The State did not make submissions in respect of Article 18 of the American Convention.
• There was no violation of Article 17 of the American Convention as the violation did not exist.
• There cannot be a violation of Articles 8 and 25 where the alleged victims did not make use of these administrative and judicial mechanisms.

Outcome

The Court unanimously rejected the State’s three preliminary objections to the children’s application, and ultimately found that the State had violated several rights under the American Convention.

The Court emphasised that nationality is a fundamental human right enshrined in the American Convention and as a political and legal bond that connects a person to a specific State, it allows the individual to acquire and exercise rights and obligations inherent in membership in a political community. In particular, the Court held that ‘States have the obligation not to adopt practices or laws concerning the granting of nationality, the application of which fosters an increase in the number of stateless persons’. (paragraph 142)

In particular, by applying different requirements to the Yean and Bosico children for birth registration compared to other Dominican children of their age, the State acted arbitrarily, without using reasonable and objective criteria, which was discriminatory treatment (paragraph 165-166). The Court situated this discriminatory treatment within the context of the vulnerability faced by Haitians and Dominicans of Haitian descent in the Dominican Republic (paragraph 168).

The Court found:

• For discriminatory reasons, and contrary to domestic norms, the State failed to grant nationality to the children, which constituted an arbitrary deprivation of their nationality, and left them stateless for more than four years and four months, in violation of Articles 20 and 24 of the American Convention, in relation to Article 19 thereof, and also in relation to Article 1(1) of the Convention, to their detriment.
• By depriving Dilcia Yean and Violeta Bosico of their nationality, the State violated their rights to a name and juridical personality in Articles 3 and 18 of the American Convention, and Article 1(1) of the Convention, to their detriment.
• The State violated the rights to humane treatment embodied in Article 5 of the American Convention, in particular where Violeta Bosico was unable to enrol in day school, which caused her suffering and uncertainty.

The Court declined to consider the alleged violations of Articles 8 and 25 as it did not have jurisdiction. In addition, the Court did not separately examine a violation of Article 12 as the facts were not relevant nor Article 17 as the facts had already been examined elsewhere.

The Court ordered that the State undertake the following in terms of reparations:

• Publish at least once the section of ‘Proven Facts’ and operative parts of the judgment in the official gazette and national newspaper within six months from notification of the judgment;
• Organise a public act acknowledging its international responsibility and apologising to the Yean and Bosico children and their next of kin within six months, which should be disseminated in the media;
• Pay non-pecuniary damages in the amount of US $8,000.00 each to Dilcia Yean and Violeta Bosico;
• Pay the amount of US $6,000.00 to Leonidas Oliven Yean (the mother of Dilcia Yean) and Tiramen Bosico Confi (the mother of Violeta Bosico) for costs and expenses incurred by MUDHA, CEIJL and the International Human Rights Law Clinic to represent the victims at a domestic level; and
• Provide a report to the Court within one year of the judgment to confirm its compliance with the terms of the judgment.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	American Convention on Human Rights	Articles 1(1), 2, 3, 5, 8, 12, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 44, 45, 46, 47, 49, 50, 62, 63(1) and 65
International	American Declaration of the Rights and Duties of Man	Articles VI, VII, VIII, XII, XVII, XIX, XX and XXIII
International	The Convention on the Reduction of Statelessness	Article 1(1)
Regional	European Convention for the Protection of Human Rights and Fundamental Freedoms	Articles 8
International	Vienna Convention on the Law of Treaties (1969)	Articles 28
Domestic	Migration Regulations of the Dominican Republic No. 279 of May 12, 1939	Section V
Domestic	Act No. 659 on Civil Status Acts of July 17, 1944 (Civil Code of the Dominican Republic)	Articles 39, 40, 41
Domestic	Code for the Protection System and Fundamental Rights of Children and Adolescents (Act No 136-03) promulgated on 7 August 2003
Domestic	Migration Act No.285-04 of the Dominican Republic promulgated on 15 August 2004

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Farruhbek Muminov, Comparative Analyses on the Deprivation of Nationality under Uzbekistan Citizenship Law and the Minimum Requirements of Depriving Citizenship under International Law (2019) 2 Yildirim Beyazit Hukuk Dergisi 473

• The author recognised that the case indicates that the arbitrary deprivation of citizenship including discriminatory grounds is considered a violation of human rights and it is prohibited in international law if it results in statelessness. Further, that it was well established that individuals arbitrarily deprived of citizenship should be given an opportunity to appeal and be guaranteed adequate procedural standards and an effective remedy.