Pacheco Tineo vs. Family Case Test. Plurinational status of Bolivia
In 1990, parents were prosecuted and detained in Peru (their country of origin) because they had supposedly committed terrorism crimes, however, Mr. Pacheco Tineo were released and in 1995 they decided to move to Bolivia together with their children since they understood that there was an arrest warrant against him in the Peruvian state because the Supreme Court of Peruvian Justice annulled the decision in which Mr. Pacheco Tineo were involved.
In Bolivia they requested the recognition of the Statute of Refugees before the CONARE (National Refugee Commission) through CESEM (Center for Specialized Studies and Services on Involuntary Migration) and UNHCR (United Nations High Commissioner for Refugees); the same one that was accepted.
The family planned to return to Peru to fix personal procedures related to their higher studies documents, so Mr. Pacheco signed the voluntary repatriation. According to the asylum dictionary of the refugee aid commission in Euskadi, the figure of voluntary repatriation is configured when “the refugee person freely decides to return to the country he fled, in theory because the risk of being persecuted has disappeared”.
However, after this event, a resolution of the Senamig Directorate was issued on March 20, 1998 in which it was established: “that refugees can return to their countries of origin voluntarily, thus losing their statute of refugee (…)
Then, it could be understood that members of the Pacheco Tineo family lost their statute of refugees in Bolivia and did not go to Peru but to Chile, where they again requested the statute of refugees and were recognized as such by the Regional Office for the Regional Office for The southern Latin America of UNHCR.
On February 3, 2001, Mr. Pacheco Tineo left Chile and entered Peru to carry out the aforementioned procedures; They met with the lawyer who had processed the cause they had in Peru, the same one that told them that their legal situation was risky, the arrest warrant against him had not been annulled or filed.
On February 19, 2001, Messrs. Pacheco Tineo decided to leave Peru again and entered Bolivia, but did not go through the respective migration control of entry in Bolivia. A day later, they appeared before the Senamig office to put their documents in order and inform their intention to cross Bolivia to get to Chile and ask for help for their transfer; However, Mrs. Fredesvya was arrested for having illegally admitted to the country; She hours later she was transferred to a cold and dark cell without recognizing her human rights or constitutional rights, as a consequence, they filed an appeal of habeas corpus on behalf of the lady. On February 22 of the same year, the appeal was declared in favor of Mrs. Fredesvynda; However, a month later, the Constitutional Court reviewed the resolution that had been issued about Habeas Corpus and only partially confirmed it and based on the lack of competence of the immigration authority to stop people.
On February 23, 2001, the Prosecutor for the Prosecutor of the Prosecutor of the District of La Paz issued a requirement to the director of the Senamig where he requested the expulsion of the Pacheco Tineo family; In this requirement, the illegal entry of the family, the lack of documents and the loss of refugees were argued.
The same day, the Senamig issued the resolution not. 136/2001, which contained the expulsion of the entire Pacheco Tineo family; However, the resolution was not notified to the family and, therefore, had no knowledge of the same. On that same day, communications had been carried out between Bolivian and Chilean authorities for the family to be received in Chile for the status of refugees they kept in that country.
However, a day later, members of the Pacheco Tineo family were expelled from Bolivia to Peru. In the bus station in Bolivia, in which they were going to embark towards Chile, they were interrupted by migratory authorities in Bolivia and the family was taken in two vehicles to Desaguadero; It should be noted that family children were separated from their parents in the transfer. The family was delivered to Peruvian immigration and police authorities
In August 2011, the family was able to enter Chile, a country where they currently reside. The father, the MR. Pacheco indicated that they return annually to Peru and have not had more inconveniences in that country.
Procedure before the Commission: on April 25, 2002, the SR. Pacheco and the Mrs. Tineo, in her name and on behalf of her children presented an initial request before the commission. The commission admitted the report and concluded the violation of some rights by the State of Bolivia, over other points decided not to rule. The Commission issued a series of recommendations to Bolivia as: an integral reparation to members of the Pacheco family for violated rights, as well as interposing disciplinary measures for state officials who participated in rights violations; In addition to adopting non -repetition measures. However, the state of Bolivia ignores the recommendations issued by the Commission.
Procedure before the Court: Thus, on February 21, 2012, the commission raised the case to the knowledge of the Court so that the victims obtain justice.
Previous exceptions of the state of Bolivia: the state of Bolivia presented to the Court five previous exceptions: first, “request for exclusion of new facts and alleged violations that would have been presented by the representatives”; second, "Court incompetence"; Third, "Lack of Ratione Loci jurisdiction of the Court"; fourth, "lack of jurisdiction ratione matter"; Fifth, "Lack of legality in the exercise of the powers of the Inter -American Commission".
Court’s background analysis: some of the reasoning made by the Court were:
That the administrative sanctions carried out by the States are part of their punitive power, however, the arrest of persons for breach of migratory laws should never be carried out for punitive purposes. Therefore, in cases where immigration authorities make decisions that affect fundamental rights, which can even reach unannan or deportation of foreigners, the State is prevented from issuing administrative or sanctioning judicial acts without respecting themselves without respecting The minimum guarantees. In fact, in the inter -American system the right to anyone to undue non -return is recognized when their life, freedom or integrity is at risk.
The right of every person to seek and receive asylum is recognized in the American Convention, which was ratified by the State of Bolivia.
It is considered that a person has the refugee character once it meets the requirements established in the definition of the 1951 Convention and the Protocol on the 1967 refugee statute, that is, that it is a person who is afraid to be pursued by Reasons of: race, religion, nationality, for belonging to a certain social group or having certain political opinions, is outside the country of nationality and cannot or may not want to take advantage of the protection of such a country for these fears; or that, lacking nationality and finding, as a result of such events outside the country where he used to have his habitual residence, he cannot or, the cause of these fears, does not want to return to him. "The recognition of a person’s refugee condition has no constitutive, but declarative character".
"The principle of non -return is the cornerstone of the international protection of refugees or asylees and asylum seekers". The principle of non -return consists basically that a person cannot be expelled to the territory of the State in which the life, freedom and integrity of it is in danger or where there may be possible violation of human rights. (Refugee Help Commission in Euskadi, S.F.). However, says the doctrine that this principle is not absolute, this means that, the principle of non -return does not fit when the asylum applicant is considered a danger to the safety of the country in which it is located, or when the person has been convicted of a rather serious crime that could be considered a danger to such a country.
The right to search and receive asyl.
The Court established that, since the Pacheco Tineo family appeared before the Senamig, this body began efforts for its expulsion because the family was not notified about the opening of an administrative procedure against it, they did not even have knowledge about the charges that were charged. To which obviously the victims could not present any resource or appeal to challenge possible violations.
The Court also established that the application for a refugee statute presented by the family in Bolivia was not considered by the CONARE arbitrarily.
The state of Bolivia claimed that the Pacheco Tineo family never showed that their life or personal freedom were at risk, to which the Court was pronounced and mentioned that this evaluation corresponded to the CONARE, the same body that did not carry out said investigation.
The Senamig decided the expulsion of the Pacheco Tineo family of the Bolivian territory, an act that was never notified; The expulsion was carried out in less than 24 hours and was carried out by means of detention and forced transfer, that is, through a totally inappropriate way.
Another aspect that analyzed the court was the separation of the children from his family. Legal separations only proceed if they have been properly justified in the best interests of the child, exceptionally and temporarily. In addition, it established that the participation of children in these types of sanctioning procedures, which are related to an infraction to the migratory regime is relevant because these types of procedures may result in the separation of the family and the affectation of the welfare of minors. In the present case, children had the right that their guarantees of due process and to family protection were protected in a special way.
Court resolution: In its resolution the Court decided that the exceptions that were filed by Bolivia were inadmissible.
In addition, the responsibility of the State of Bolivia was declared for: the violation of the right to seek and receive asylum, at the beginning of non -return, to the rights of judicial guarantees and to judicial protection, violation of psychic and moral integrity, violation of the violation of the violation of the Right to the protection of children and family. The state of Bolivia is not responsible for violation of the right to physical integrity.
Likewise, the Court ordered that: This judgment constitutes a form of repair. Bolivia must: publish this judgment, implement permanent training programs aimed at the officials of the National Migration Directorate and National Refugee Commission, as well as other officials who have contact with migrants or asylum applicants; You must pay the amounts set for material and immaterial damage and reintegrate the amount established to the Legal Assistance Fund for Victims.
The Court will supervise compliance with this judgment and will terminate the case once Bolivia has complied with the provisions of the same. The State of Bolivia must render a report to the Court on the measures taken to comply within a period of one year from the notification of this judgment.
Personal analysis on the figure of the shelter/asylum and its relationship with the present case: first, I would like to say that, in this case, the “Pacheco Tineo VS. Plurinational State of Bolivia ”, we are facing a situation of people in need of international protection. International protection is the support that a State offers to a person (so that he can develop his life plan) that he is outside his country of origin because life, dignity, freedom and integrity of it is in danger.
International protection can be analyzed through three figures: political asylum, shelter or in this case, the shelter/asylum, and as every figure we could say that it has its own norms, its competent body and its own procedure which will be which will be analyzed below.
When referring to the norms that apply to this figure we would say that they are: the Convention on the Statute of Refugees of 1951, the Protocol on the Statute of Refugees of 1967 and the Declaration of Cartagena on refugees of 1984.
When talking about the competent body to solve the controversies that are carried out in this figure we would say that there is no main organ that solves the problems that arise in this mechanism because UNHCR is an auxiliary organ, then the question of who It is competent to solve this controversy? The Inter -American Court of Human Rights? Indeed, the IACHR is competent to resolve this case and that takes us to the next point, the procedure.
In articles 22.7 and 22.8 of the American Convention on Human Rights There is a very vague definition of asylum for political crime.
Article 22.7 establishes that: "Everyone has the right to seek and receive asylum in foreign territory in case of persecution for political or common crimes related to politicians and in accordance with the legislation of each State and international agreements".
Article 22.8 establishes that: “In no case can the foreigner be expelled or returned to another country, whether or not either of origin, where his right to life or personal freedom is at risk of violation due to race, nationality, religion, condition social or your political opinions ".
So, in this sense, what the Inter -American Court of Human Rights does is an interpretation based on article 29 literal B of the American Convention on Human Rights that refers to the norms of interpretation and relates them to the specific norms (the norms referred in the third paragraph of this section) on the subject to solve the problem despite being the competent body in International Human Rights Protection Law.
Conclusions
In conclusion, the Pacheco Tineo family was a victim of the abuse of power by the State of Bolivia, which violated each and every one of the rights mentioned in this essay.
That although in this judgment the Court reiterates that the right to seek and receive asylum established in article 22.7 of the American Convention does not ensure that the statute of refugee should be recognized to the requesting person, if it guarantees that said request is processed with due guarantees.
The principle of non -return is a cornerstone in international law, but it is not absolute since there are two exceptions that seem reasonable to me, in both the danger that a person can represent for a whole community is mentioned.
I agree with the resolution that the Inter -American Court has given to the present case since they seem proportional measures within what fits everything that the Pacheco Tineo family had to suffer due to the lack of responsibility of the officials of the state of Bolivia.
Finally, in terms of my personal analysis on the figure of the shelter/asyl Assume these controversies.
Bibliography
- ACNUR. (1951). Convention on the Statute of Refugees . Geneva.
- ACNUR. (July 2018). International protection: the hope of millions of people. Obtained from https: // eacnur.Org/Blog/Protection-International-La-Esperanza-de-Millones-de-Personas-Tc_alt45664N_O_PSTN_O_PST/
- International Amnesty . (1997). Refugees. Human rights have no borders. Madrid: Edai.
- Refugee Help Commission in Euskadi. (s.F.). Asylum dictionary. Obtained from https: // dictionary.Cear-Euskadi.org/repatriación-voluntary/
- Refugee Help Commission in Euskadi. (s.F.). Asylum dictionary. Obtained from https: // dictionary.Cear-Euskadi.org/principle-not-ofvolution/
- American Convention on Human Rights . (July 18, 1978). San Jose Costa Rica.
- Inter -American Court of Human Rights. (November 25, 2013). Pacheco Tineo Vs Family Case. Bolivia Plurinational State . San José, Costa Rica: Inter -American Court of Human Rights.
- Senamig address. (March 20, 1998). Resolution no. 156/98. Bolivia.
Leave feedback