Clinic files brief before Inter-American Court on mass expulsions, due process, and equal protection

By on November 19, 2013 11:17 am
International Human Rights Clinic

This blog post was written by Clinic student Taliné Minassian

Santa Clara University’s International Human Rights Clinic submitted an amicus curiae brief in the Benito Tide Mendez v Dominican Republic case before the Inter-American Court of Human Rights.  The case deals with the forced expulsion, deprivation of liberty, destruction of identification documents, physical abuse, and other violations of human rights faced by the six plaintiffs and their families between 1994 and 2000. The case highlights the violations of human rights suffered by thousands of Haitians and Dominicans of Haitian descent who have been forcefully expelled from the Dominican Republic without the minimum guarantees of due process granted by the American Convention on Human Rights, all of which is due to the Dominican Republic’s discriminatory practices against persons of black skin and so-called “Haitian” features.

The Clinic’s amicus addresses several procedural and substantive issues the Court needs to address. The first issue pertains to the Court’s temporal jurisdiction over some of the facts that took place after the Dominican Republic ratified the American Convention but before it recognized the Court’s contentious jurisdiction. In the amicus, the Clinic puts forward two arguments that support extending the Court’s jurisdiction to all of the facts in the case, so long as they occurred after the Dominican Republic ratified the American Convention.  First, the Dominican Republic did not explicitly place a temporal limitation when it recognized the Court’s jurisdiction, so the Court should not imply such a limitation. Second, the principle of non-retroactivity of treaties does not apply to unilateral declarations such as the act of recognition of the Court’s contentious jurisdiction.

The amicus also discusses the Dominican Republic’s violation of the right to personal liberty. The Clinic alleges that the illegal and arbitrary detention of the victims without informing them the reasons for their detention, without bringing them before a judicial authority to determine the legality of their detention, and without allowing the victims the opportunity to challenge the legality of the detention before a judge, constituted a violation of their right to personal liberty under article 7 of the American Convention.

The amicus also supports the allegation that the Dominican Republic violated the right to a fair trial by denying the victims a hearing, not informing the victims of the reasons of their deportation, denying them the time and the means to prepare a defense, to defend themselves in person or by counsel of their choice, to be assisted by counsel of the State, and to appeal the deportation decision, as recognized in article 8 of the American Convention.  Additionally, the amicus discusses how the Dominican Republic denied the victims the right under article 25.1 of the American Convention to a simple, fast and effective opportunity to bring their case to a court to show that their rights to personal liberty, to a fair trial, to freedom of movement and to equal protection of the law had been violated.

The Clinic also argued that, by expelling the victims without making an individualized examination to determine their immigration status and to determine whether they were Dominican nationals, the Dominican Republic violated their right not to be expelled from a country where they belong, in violation of article 22.5 and 22.9 of the American Convention.  Lastly, the Clinic argued that the Dominican Republic failed to comply with its obligation under article 2 of the American Convention to eliminate discriminatory practices and develop practices leading to the effective enforcement of rights under the Convention, as recognized in articles 1.1 and 24 of the American Convention.

The Clinic filed this amicus because we believe the Court’s decision in this case is crucial to safeguard the rights of Dominicans of Haitian descent in the Dominican Republic, particularly in light of the arbitrary, discriminatory and retroactive denationalization of thousands of Dominicans of Haitian descent by virtue of a recent judgment from the Constitutional Court of the Dominican Republic. Additionally, we believe this case will ensure that international and domestics laws against mass expulsions are upheld while also establishing international standards on non-discrimination against migrants and the right to nationality.

We invite you to read our amicus by clicking here.

 

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