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Dilcia Yean and Violeta Bosica v. Dominican Republic

Name of Case

Dilcia Yean and Violeta Bosica v. Dominican Republic

Keywords, Forum, Remainder of citation, Context, On what breach of law was the case brought?, Process, How did civil society mobilise around the case?, Result of the case, Effect of case, What has this case done to further the right to education?

Keywords

nationality, discrimination, Inter-American Court of Human Rights, American Convention on Human Rights, Americas, civil rights, Dominican Republic, Haiti, birth certificate, identity, nationality, accessibility

Forum

Inter-American Commission on Human Rights

Remainder of Citation

Report 28/01, Case 12.189; 22 February 2001

Context

In 1997, Dilcia aged 10 and Violeta aged 12, were refused their request for birth certificates by the Dominican civil registry. Both girls are Dominican-born but of Haitian descent. Without a birth certificate, Dilcia and Violeta were effectively denied their right to a nationality and to related civil, economic, political and social rights. They were expelled from school, as only children with Dominican birth certificates are allowed to study.

On what breach of law was the case brought?

The case was brought on the grounds that the girls’ civil rights had been breached, specifically their right to identity and nationality:

American Convention on Human Rights Article 3: Every person has the right to recognition as a person before the law.

American Convention on Human Rights Article 20.1: Every Person has the right to a nationality.

International courts are less happy to directly rule on economic, social and cultural rights, as these are thought to be policy related and therefore to be decided by national government. However, by drawing links between the breach of civil rights and their impact on other rights, specifically health and education, the breach is given a human dimension, and this can help to bring media publicity.

See the section on the website relating to civil/political rights and anti-discrimination laws and also the section of cases relating to civil/political rights.

Process

The Movement for Dominican Women of Haitian Descent (MUDHA), together with the Center for Justice and International Law, and the Human Rights Law Clinic at the University of California, Berkeley filled a complaint before the Inter-American Commission on Human Rights, alleging multiple violations of the American Convention on Human Rights. This international route was chosen as it was felt that the level of national discrimination against those of Haitian descent was so high that the national judiciary would be biased.

 It was also hoped that by taking the case to an international court, the issue would get international coverage and debate.

International courts might be the best route to widespread national discrimination against a particular group and because it may be easier to get more publicity on an international setting.

The rule of exhaustion of domestic remedies: A crucial rule governing the admissibility of a complaint is that you must, in general, have exhausted all remedies in the state where the violation occurred before bringing a claim to an international body. This usually includes pursuing your claim through the local court system. There are, however, exceptions to this rule. If the exhaustion of remedies is unreasonably prolonged, or plainly ineffective or otherwise unavailable to you (i.e. in this case, the level of discrimination was so high that the national courts would be bias), you may not be required to exhaust domestic remedies.

Due to the high number of cases submitted to the Inter-American Commission on Human Rights (2,000-3,000 per year) it took five years for the case to be referred to the Inter-American Court of Human Rights, and another two years for it to be tried and for the Court to reach a verdict. In September 2005, the Court found that the Dominican Republic had violated a wide range of rights enshrined in the American Convention, and held that because the Dominican Constitution has the jus soli rule of nationality (nationality is granted based on place of birth) the process applied to the two girls was discriminatory.

Both international and domestic courts are generally more willing to recognise that discrimination has taken place rather than decide specifically a breach of the right to education. It is useful therefore to find victims who have clearly been treated completely different for reasons of race, religion, gender, disability, nationality etc. compared with other people who have had their right to education fulfilled. See section on website relating to discrimination laws.

How did civil society mobilise around the case?

During the litigation process those taking the case distributed a press packet and press releases to ensure wide media coverage and publicity. The government’s reaction was unanticipated and hostile. They launched a press campaign to discredit the case, building on the prejudice which already existed against Haitians.

Result of case

The court held that a breach of the right to identity and nationality had taken place and awarded each of the girls $8,000 for damages. It also ordered the government to circulate the sentence publicly, offer a public apology to the victims, and institute a broad range of institutional reforms, relating to nationality and access to education, to ensure that the violation did not happen again.

Effect of case

The government has not complied with any of these judgements, and has yet to publicly apologise or pay the $8,000. But they have issued birth certificates and the girls did access schooling. Even without the implementation of the Court’s ruling the girls, and others of Haitian descent, have gained significantly through the proceeding. They have gained legitimacy for the right they have been fighting for for years, to be legally recognised as Dominican.

What has this case done to further the right to education?

It has shown that courts, especially international courts, can be prepared to see that a breach of civil rights can have a serious effect on socio-economic rights such as the right to education.

Courts are also more likely to rule a breach of a socio-economic right when such a claim is brought together with allegations of discrimination. See the case of DH and Others v Czech Republic in the cases on racial discrimination.

Where as in this case, a breach of a civil right such as identity and nationality has prevented a child accessing education, a court may be persuaded to order that the right to education must also be fulfilled.