Report No. 37 (2001) IACHR. Petition No. 11.529 (Costa Rica)

• Petition Number: 11.529
• Report Number: 37
• Respondent State: Costa Rica
• Case Type: Admissibility
• Court: Inter-American Comission of Human Rights
• Alleged Victim: José Sánchez Guner Espinales y otros

REPORT Nº 37/01 CASE 11.529 JOSÉ SÁNCHEZ GUNER ESPINALES AND OTHERS COSTA RICA February 22, 2001 I. SUMMARY 1. On February 28, 1995, the Inter-American Commission on Human Rights (hereinafter “the Commission” or “the IACHR”) received a complaint against the Republic of Costa Rica (hereinafter the “Costa Rican State,” “the State,” or “Costa Rica”), which was later supplemented by the petitioners on August 29, 1995. Both communications reported the alleged violation, with respect to 47 Nicaraguan citizens deported from Costa Rica to Nicaragua on February 22, 1995, of rights enshrined in the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”), including the right to judicial guarantees (Article 8) and that of judicial protection (Article 25). In this report, the Commission studies the case of 46 of these deportees, since the case of Mr. Juan Ramón Chamorro Quiroz (Case Nº 11.495) was separated and subsequently declared inadmissible by the IACHR, through Report Nº 89/00, approved October 5, 2000. 2. The petitioners claim that the 46 Nicaraguan citizens were captured and immediately deported from Costa Rica to Nicaragua for lack of immigration documents, which in fact prevented them from lodging a complaint or invoking domestic legal remedies before the competent Costa Rican authorities. Moreover, because they were undocumented immigrants, they were unable to return to the country to lodge a complaint regarding the mistreatment to which some of them were allegedly subject and/or to challenge their deportation through judicial channels. According to the petitioners, two of the deportees, José Sánchez Guner Espinales and Sabu Alvarado Aburto, were carrying no documents. In addition, two persons whose names were on the list of those deported (Pedro José Barrera and Reynaldo Risby Jarquin), and who according to some of their companions were severely beaten by the Costa Rican authorities, did not arrive in Nicaragua with the rest of the group, and their current whereabouts are unknown. 3. The State maintains that the petition is inadmissible because Costa Rica’s domestic legal remedies have not been exhausted, and holds that in the deportation operation, all applicable domestic and international rules were followed. The State adds that the Nicaraguan citizens who were deported could have challenged the deportation decision by seeking a writ of annulment, filing an appeal, or invoking habeas corpus proceedings, for which Costa Rican law provides ample opportunities. Moreover, the alleged victims could have reported the mistreatment to the competent authorities but did not do so. Nothing prevented the deportees, once in their country of origin, from requesting, through legally established channels, readmission into Costa Rica in order to take the steps necessary to report the incident. The State denies that the Costa Rican authorities assaulted Mr. Pedro José Barrera and Mr. Reynaldo Risby Jarquin and prevented the deportees from collecting their wages and gathering their belongings prior to being deported. 4. Costa Rica also maintains that all questions related to immigration status are matters of national sovereignty. 5. The Commission concludes that it is competent to hear this case and that the petition is admissible under Articles 46(2)(b) and 47 of the Convention. II. POSITIONS OF THE PARTIES A. The petitioners 6. The petitioners report that the Costa Rican State has instituted a practice of deporting undocumented immigrants–particularly those of Nicaraguan nationality–in a manner that violates human rights. The petitioners indicate that on February 22, 1995, in accordance with this practice, Costa Rica deported 47 Nicaraguan citizens, three of whom–Mr. José Sánchez Guner Espinales, Mr. Sabú Alvarado Aburto and Mr. Juan Ramón Chamorro Quiroz, had no deportation order. The complainants indicate that the whereabouts of two other Nicaraguans (Pedro José Valle Barrera and Reynaldo Risby Jarquin) whose deportation was reported by the Costa Rican authorities and who, according to some of their companions, had been severely beaten by State agents, are unknown. 7. The petitioners maintain that illegal immigrants captured by the Costa Rican authorities are kept under arrest for several hours before being deported, and that this detention is an administrative measure against which no relief is admitted, not even habeas corpus. In addition, the undocumented immigrants are directly taken from the place of their arrest to the location where they will be deported, a procedure which is exceedingly summary, takes place almost automatically, and does not allow them access to justice (a material impossibility) to contest their deportation and/or report alleged attacks by State agents. 8. With respect to the argument of the Costa Rican State that the persons allegedly assaulted by its agents did not report these acts–that these are categorized as offenses warranting a public right of action and that a mere report would have been sufficient to initiate action by the Costa Rican criminal justice system–the complainants maintain that, no matter how well codified the criminal conduct may be in Costa Rican law, this is of no avail if accessing justice is a “material impossibility.” With respect to the State’s claim that the deportees could have sought reentry to Costa Rica to lodge the relevant complaint, the petitioners indicate that it must be borne in mind that this involves “undocumented” immigrants who, precisely because of a lack of economic means, travel without passports and enter the country illegally. 9. In regard to the State’s argument that the immigration police do not wear uniforms nor are they authorized to carry weapons, the claimants state that the police (rural police, Civil Guard, etc.) who assist the immigration authorities in the capture, detention and expulsion of undocumented immigrants do indeed “wear khaki and carry weapons,” thus there is active participation and, therefore, responsibility, on the part of various State authorities that are not necessarily immigration or police officials. They add that the complaint is based on the violence and attacks by the rural police and on the violations and abuse of power by immigration authorities. 10. The complainants also maintain that Captain Carlos Valverde, a Costa Rican immigration agent, who participated in the deportation operation, did not allow the deportees to gather together their belongings or to collect the wages they were owed prior to being deported. The petitioners add that this is part of Costa Rica’s practice, as mentioned previously, of failing to provide sufficient resources to feed them during the time they are in the process of being deported, not providing transportation to make their deportation more expeditious, and failing to take measures to ensure that they receive their wages and gather their belongings prior to being deported. 11. The petitioners also state that the Head of the Nicaraguan Directorate of Immigration and Nationality made a written protest to the Head of Immigration of Piedras Blancas, Costa Rica, for having failed to request the support of Nicaraguan consular authorities for the entry of the Nicaraguan citizens deported February 22, 1995, pursuant to the relevant agreements signed between the two countries. 12. Based on the above arguments, the petitioners maintain that the Costa Rican State violated, with respect to the 46 Nicaraguan citizens deported February 22, 1995, the rights of due process (Article 8(1)), judicial protection (Article 25) and, in the case of two of the deportees (Pedro José Barrera and Reynaldo Risby Jarquin) the right to humane treatment (Article 5) protected by the American Convention on Human Rights. B. The State 13. The Costa Rican State indicates that on February 22, 1995, in compliance with Article 118 of the General Law on Immigration and Nationality, its authorities carried out an operation to detect and deport all foreigners who had clandestinely entered the country. According to Costa Rica, operations of this kind are conducted in accordance with national and international rules and established procedures. A file is opened for each detainee, who is informed of the deportation order. In addition, notice is given to the consular officials of the countries of origin so they can record the entry of each deportee into their national territory. 14. Costa Rica indicates that the reports given to Nicaragua regarding deportations of Nicaraguan citizens are intended to assist that country’s immigration controls, but this does not mean that its authorities are empowered to intervene in Costa Rica’s immigration affairs. Moreover, the General Directorate of Immigration and Nationality works closely with the Costa Rican Red Cross in order that the organization can send witnesses to monitor that, in its deportation operations, Costa Rica does indeed respect the deportees’ human rights. 15. The State indicates that only some of the names of the alleged victims are mentioned in the complaint, and in no case is the identity card number or any other identifying document provided, making it impossible to correctly identify the individuals. Nor is their occupation, domicile and other descriptive information given that would make it possible to accurately carry out an investigation and analysis of the current circumstances of these persons in regard to the reported actions. 16. As for the remedies available in regard to the deportation decision, the Costa Rican State cites annulment and appeal (Articles 107 through 112 of the General Law on Immigration and Nationality). It adds that these apply: in all deportation cases, with the obvious exception of those in which the foreigner entered our territory clandestinely, without observing the rules...