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REPORT N° 11/07 INTERSTATE CASE 01/06 NICARAGUA v. COSTA RICA March 8, 2007
I. SUMMARY1. On February 6, 2006, the Inter-American Commission on Human Rights (hereinafter the "Inter-American Commission", “Commission” or “IACHR”) received a communication from the State of Nicaragua which alleged that the State of Costa Rica has committed violations of Articles 1(1) (Obligation to respect rights), 8 (Right to a fair trial), 24 (Right to equal protection), and 25 (Right to judicial protection) of the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”); Articles 2, 7, 8, and 28 of the Universal Declaration of Human Rights; Articles II (Right to equality before law) and XVIII (Right to a fair trial) of the American Declaration of the Rights and Duties of Man; and Article 9 of the Inter-American Democratic Charter, which refers to the elimination of all forms of discrimination, due to the alleged failure on the part of the State of Costa Rica to fulfill its duty to ensure protection for the human rights of the Nicaraguan migrant population under its jurisdiction.
2. By virtue of the fact that both the State of Costa Rica and the State of Nicaragua deposited their declarations concerning recognition of the competence of the Commission to receive and examine communications from one state against another, on February 13, 2006, the IACHR decided to process the communication in accordance with Articles 45 et seq. of the Convention and to transmit the communication presented by the State of Nicaragua to the State of Costa Rica.
3. The Commission held a hearing on the case on July 18, 2006, in the framework of its 125th Regular Session and placed itself at the disposal of the parties with a view to reaching a friendly settlement. On September 7, 2006, owing to the fact that the State of Costa Rica mentioned on that occasion that it was not timely to initiate the friendly settlement procedure, the Inter-American Commission, in keeping with Article 41(4) and (6) of its Rules of Procedure, decided to conclude its intervention in the friendly settlement procedure and to continue to process the interstate communication.
4. In light of the fact that the considerations on admissibility and merits are closely connected in the case, the Commission decided, pursuant to Article 37(3) of its Rules of Procedure, to defer its treatment of admissibility until the debate and decision on the merits, particularly since the Commission found from its examination of the arguments and evidence presented by both States that the allegation regarding the existence of a generalized practice of discrimination against the Nicaraguan migrant population in Costa Rica was neither manifestly groundless nor obviously out of order.
5. The Commission considered it necessary to receive information from both states on the merits of the allegations in order to determine if there is enough evidence to verify the existence of a practice of discrimination tolerated by the State of Costa Rica, to the point where it would be futile to attempt to exhaust the remedies under domestic law. Having examined the arguments and evidence presented during the merits stage of the case, the Commission finds that the evidence presented by the State of Nicaragua is not sufficient to show the existence of a generalized practice of discrimination against the Nicaraguan migrant population in Costa Rica, and, therefore, it was not appropriate to assume that no suitable and effective remedies exist to repair the violations alleged in this case.
6. Accordingly, the Commission concludes that the allegations of the Nicaraguan State concerning violation of the rights enshrined in Articles 1(1) (Obligation to observe rights), 8 (Right to a fair trial), 24 (Right to equal protection), and 25 (Right to judicial protection) of the American Convention on Human Rights, are inadmissible under Articles 46 of the Convention and 31 of the Rules of Procedure of the IACHR.
II. PROCESSING BY THE COMMISSION
7. On February 6, 2006, the Inter-American Commission received a communication from the State of Nicaragua[1] “denouncing the State of Costa Rica […] for breach of the duty to offer due guarantees for the protection of human rights contained in the American Convention on Human Rights and other international treaties […] to the detriment of Nicaraguan citizens resident in Costa Rica.”[2] The Commission registered the communication with the number PI 01/06 (Interstate Petition 01/06).
8. On February 6, 2006, the Commission also received a note from the Permanent Mission of Nicaragua to the Organization of American States (OAS),[3] in which it enclosed a copy of the note sent to the Secretary General of the OAS, which, according to the communication of the State of Nicaragua, was received by the General Secretariat of the Organization on Friday, February 3, 2006. The purpose of the note to the Secretary General was to bring to his attention the declaration of January 26, 2006,[4] in which the State of Nicaragua recognizes the competence of the Inter-American Commission on Human Rights to receive and examine communications in which a state party alleges that another state party has committed a violation of a human right set forth in the Convention. Furthermore, the note requests the Secretary General to transmit the contents of that declaration to the other states parties to the Convention and the members of the Organization of American States, to which end it enclosed a photocopy of Official Gazette of Nicaragua (La Gaceta) No. 22 of January 26, 2006, in which the declaration was published.
9. On February 9, 2006, the Commission received a note from the Permanent Mission of Nicaragua to the Organization of American States in which it requested information about the subsequent processing of the interstate communication. [5]
10. On February 13, 2006, the Commission decided to transmit to the State of Costa Rica the communication presented by the State of Nicaragua together with its annexes, including the copy of the note addressed to the General Secretariat by the State of Nicaragua bringing to its attention the declaration concerning recognition of the competence of the Commission to receive and examine interstate communications. On that occasion the Commission informed both parties that the communication of the State of Nicaragua would be processed in accordance with the procedure set down in Articles 45 et seq. of the American Convention and, in keeping with Articles 30(3) and 48 of its Rules of Procedure, requested the State of Costa Rica to present a reply to the interstate communication within two months, counted from the date of transmission of said communication. The note in which the instant interstate communication and its annexes were conveyed to the State of Costa Rica was transmitted on February 15, 2006.
11. On February 24, 2006, the State of Nicaragua sent a note to the Commission to request it to rectify the steps taken in the proceeding in the instant interstate communication inasmuch as the communication was not lodged under Articles 45 et seq. of the Convention, but pursuant to Articles 48 to 50 of the Convention. On that occasion, the State of Nicaragua mentioned that it “invokes, for this case, the procedure determined by the Inter-American Court of Human Rights in the Case of Viviana Gallardo et al, on which occasion Costa Rica, a state party, filed an application against Costa Rica before the Inter-American Court of Human Rights, which ordered said state to proceed in accordance with Articles 48 to 50 [of the Convention]”[6].
12. On March 24, 2006, the State of Nicaragua sent a note to the Commission in which it again asked the Commission to comply with its request with respect to the processing of the instant interstate communication[7]. Furthermore, in a note of March 31, 2006, the State of Nicaragua requested the Commission to rectify the processing of this communication since “the measures adopted by the Executive Secretariat are not in keeping with the petition or complaint of Nicaragua or with the Convention inasmuch as, before taking the matter to the Court, the State of Nicaragua decided to comply with Articles 48 to 50, which are obligatory according to Article 61 of said Convention.”[8] The State of Nicaragua reiterated this request in notes dated May 11, 2006,[9] May 16, 2006,[10] and several other notes, as well as at the public hearings held by the Commission on July 18 and October 18, 2006.
13. On March 31, 2006, the Commission wrote to the State of Nicaragua to inform it that at its 124th Session, the IACHR considered its submissions in connection with the processing of the instant interstate communication and resolved to await the reply of the State of Costa Rica in order then to adopt decision on the arguments regarding the processing of the interstate communication.
14. On April 6, 2006, the State of Nicaragua sent a note to the Commission requesting an explanation as to why it had been informed that the period granted to the State of Costa Rica would expire on April 15, 2006, when the note in which the Executive Secretariat transmitted the communication to the State of Costa Rica was dated February 13, 2006.[11] On April 7, 2006, the Commission informed the State of Nicaragua that the note of February 13, by which the communication presented by the government of Nicaragua was brought to the attention of the government of Costa Rica, was actually transmitted on February 15. Therefore, the two-month period granted to the State of Costa Rica began to run on February 15 and was due to expire on April 15, 2006.
15. On April 18[12] and April 20,[13] 2006, the State of Nicaragua wrote to the Commission to request information as to whether or not State of Costa Rica had presented its reply to this interstate communication in the requisite time and manner. On April 20, 2006, the State of Nicaragua again wrote to the Commission, requesting that it proceed without delay and create the working group mentioned in Article 36 of the Rules of Procedure of the IACHR, since it regarded “the failure of the State of Costa Rica to answer the petition lodged by Nicaragua as a submission thereto, as an acceptance of the serious allegations it contains.”[14]
16. On April 20, 2006, the Commission wrote to the State of Nicaragua to inform it that, as yet, the IACHR had received no response from the State of Costa Rica. On April 25, 2006, the State of Nicaragua wrote to the Commission reiterating its request that it declare its acceptance that the facts alleged by the State of Nicaragua in its interstate communication were true.[15]
17. On April 24, 2006, the State of Costa Rica presented to the Commission a request for an extension of 15 days to submit its reply to this communication.[16] On April 27, bearing in mind the importance of affording both states the opportunity to express their opinion with respect to this interstate communication, the Commission decided to grant the State of Costa Rica a single extension of eight days to respond to the communication of the State of Nicaragua, and set May 5, 2006, as the deadline for receiving the reply of the State of Costa Rica. This decision was communicated to both parties on April 27, 2006.
18. On May 1, 2006, the State of Nicaragua submitted a note advising the Commission of its position on the decision of the latter to grant an extension to the government of Costa Rica, inasmuch as said request was "time-barred and after the time limit."[17] In that note, the Nicaraguan State requests the Commission to annul the extension granted. This position was reiterated by the Nicaraguan State in the brief containing its observations on the reply of the State of Costa Rica to this interstate communication.[18]
19. On May 3, 2006, the Commission wrote to the State of Nicaragua to inform it that the Commission and its Executive Secretariat had acted in an absolutely objective and impartial manner in this case and that the Commission's processing of this communication was in accordance with the Convention and the Rules of Procedure of the IACHR. Furthermore, the Commission noted that all the Executive Secretariat's decisions on the processing of this interstate communication are consulted with the Inter-American Commission, or with its President, and have their full backing.
20. On May 5, 2006, the State of Costa Rica delivered to the Commission its reply to the interstate communication lodged against it by the Nicaraguan State.[19] This reply was transmitted that same day to the State of Nicaragua, which was given one month to present its observations.
21. On May 15, 2006, the Commission wrote to both States to invite them to a hearing to be held during its 125th Session in Guatemala, in order to address matters concerning the admissibility of this interstate communication.
22. On May 26, 2006, the State of Nicaragua presented to the Commission its observations on the reply of Costa Rica to the interstate communication.[20] The Commission forwarded those observations to Costa Rica on May 31 and granted it one month to submit its observations.
23. On June 1, 2006, the State of Nicaragua sent a note to the Commission with observations on the way in which the IACHR has processed this interstate communication.[21] On June 7, 2006, the President of the Commission wrote to the State of Nicaragua in reply to the notes requesting the Commission to rectify its processing of this interstate communication, and informed it that the Commission was of the opinion that the processing was in keeping with the American Convention and the Rules of Procedure of the IACHR.
24. The State of Nicaragua submitted additional information in briefs dated May 9, 2006, and June 5, 2006. For its part, on June 12, 2006, the State of Costa Rica wrote to the Commission in order to bring to its attention the press release issued by the Ministry of Foreign Affairs and Worship of Costa Rica on June 7, 2006, in which the government of Costa Rica reiterated its profound respect for the independence and autonomy of the Inter-American Commission.[22]
25. On July 5, 2006, the State of Costa Rica sent the Commission its response[23] to the request for observations that the Commission made to it on May 31, 2006, when it transmitted the observations of the State of Nicaragua to the reply of the Costa Rican State to this interstate communication. This response from Costa Rica was conveyed to the State of Nicaragua that same day, July 5, 2006, and the latter was given one month to present its observations.
26. On July 18, 2006, the Inter-American Commission on Human Rights, meeting at its 125th Session in Guatemala City, Guatemala, held a public hearing to address issues pertaining to the admissibility of this interstate communication. (Copies of the minutes and audio recordings of this hearing were transmitted to both states parties on August 22, 2006). After the hearing, the President of the Commission placed himself at the disposal of the parties for reaching a friendly settlement. The delegations of both parties agreed to give their reply to the Commission after they had consulted with the appropriate authorities in their respective States. On July 19, the Commission ratified in writing, to both parties, its decision to place itself at their disposal with a view to reaching a friendly settlement of the matter, and granted the respective governments two weeks to express their interest in initiating the procedure provided at Article 48(1)(f) of the Convention.
27. On July 26, 2006, the Inter-American Commission received an amicus curiae brief from the Office of the Human Rights Ombudsman of Nicaragua in connection with this interstate communication and, on July 27, 2006, transmitted this document to both parties.
28. On July 31, 2006, the Commission conveyed to Costa Rica the documents that the State of Nicaragua presented at the hearing held on July 18, 2006 in Guatemala, which contained the written version of its arguments as well as a series of annexes and evidentiary material.
29. On August 2, 2006, the State of Nicaragua sent the Commission its response to the request for observations made to it on July 5, 2006,[24] by the Commission when it forwarded the response of the State of Costa Rica of June 29, 2006.
30. On August 4, 2006 the Commission received a note dated July 24, 2006, in which the government of Nicaragua expressed its willingness to accept the offer of the IACHR to initiate a friendly settlement procedure.[25] On August 7, 2006, the Commission received a note dated August 4, 2006, in which the government of Costa Rica thanked the Commission for its offer but informed it that it was not timely at this juncture to initiate the friendly settlement procedure, bearing in mind the comments expressed after the hearing by the representatives of the State of Nicaragua to different media organizations.[26] On August 8, 2006, the Commission forwarded to the State of Costa Rica the note in which the Nicaraguan State accepted the invitation of the Commission to initiate a friendly settlement procedure and also transmitted to the State of Nicaragua the note whereby the Costa Rican State indicated that it was not timely at this juncture to initiate the friendly settlement procedure.
31. On August 10, 2006, the Commission received a note in which the State of Costa Rica transmitted to the Commission in writing the arguments and observations of its representatives at the hearing held in Guatemala on July 18, 2006;[27] the Commission forwarded said information to Nicaragua on August 11, 2006. In this connection, on August 23, 2006, the State of Nicaragua wrote to the Commission requesting it to declare this brief from Costa Rica as not received because it was time-barred and constituted an edited version of the oral submissions at the hearing.[28] On September 7, 2006, the Commission informed the State of Nicaragua that, pursuant to Article 48 (e) of the American Convention, the IACHR may receive, if it so requests, oral or written statements from the parties concerned at any time in the proceeding. Furthermore, the Commission drew attention to the fact that the audio from the hearing is part of the record in the case and when it issues is decision on the matter, the Commission will take all of the opinions expressed by both parties into consideration.
32. On September 7, 2006, in view of the fact that the State of Costa Rica said that it was not timely at this juncture to initiate a friendly settlement procedure, the Inter-American Commission, in accordance with Article 41(4) and (6) of its Rules of Procedure, decided to terminate its intervention in the friendly settlement procedure and continue to process the interstate communication. At the same time, bearing in mind the close connection between the considerations on admissibility and merits in the case, the IACHR, in keeping with Article 37(3) of its Rules of Procedure, decided to open the case, assign it number CI 01/06 (Interstate Case 01/06), and defer its treatment of admissibility until the debate and decision on the merits. Thus, in accordance with Article 38(1) of its Rules of Procedure, the IACHR requested the State of Nicaragua to present its additional observations on merits, and gave it two months to do so.
33. On September 7, 2006, the Inter-American Commission also decided to invite the two parties to a public hearing to address issues relating to merits in the case. The hearing was held on October 18, 2006, in the framework of Commission’s 126th Regular Session. (Copies of the minutes and audio recordings of this hearing were transmitted to both states parties on November 9, 2006). During the hearing, the State of Costa Rica requested the Commission to suspend the hearing on the grounds that the Commission was not competent to examine the instant case because the State of Nicaragua had not formally and officially recognized the competence of the IACHR to receive and examine communications in which a state party alleges that another state party has committed a violation of a human right set forth in the Convention. On that occasion, the President of the Commission informed both states parties that their arguments regarding the competence of the Commission in connection with this case would be analyzed in due course by the IACHR and requested that the hearing continue.
34. On October 19, 2006, the State of Nicaragua wrote to the Commission to confirm and submit documentation to show that on February 3, 2006, in a communication addressed to the Secretary General of the Organization of American States, it transmitted a note apprising him of the declaration concerning recognition by the State of Nicaragua of the competence of the Commission, and requesting him to transmit the contents of that declaration to the other states parties to the Convention and the members of the Organization of American States.[29] Said information was forwarded to the State of Costa Rica on October 23, 2006.
35. On October 20, 2006, the State of Costa Rica wrote to the Commission in order to furnish additional information connected with the Fifth Meeting of the Binational Commission in the framework of which the Vice Ministers of Costa Rica and Nicaragua resumed talks to strengthen ties of friendship, cooperation, and joint development on migration and other relevant issues.[30] Said information was forwarded to the State of Nicaragua on October 23, 2006.
36. On October 23, 2006, the Commission forwarded to the State of Costa Rica the documents that the State of Nicaragua presented to the Commission at the hearing held on October 18, 2006, which contained the written version of its arguments as well as a series of annexes and evidentiary material. That same day, the Commission transmitted to the State of Nicaragua the documents that the State of Costa Rica presented to the Commission at the hearing held on October 18, 2006, which contained the written version of its arguments as well as a series of annexes and evidentiary material.
37. On October 18, 2006, in the framework of the hearing, the State of Nicaragua had requested the Commission for an extension to present its observations on merits in the case. On October 23, 2006, the Commission wrote to both states parties to inform them that it had decided to grant a 15-day extension to the State of Nicaragua so that it might present its arguments on merits in the interstate case. That period started to run on the date that the period originally granted expired. Accordingly, the deadline for presentation of submissions on merits was put back until November 21, 2006.
38. On October 26, 2006, the Inter-American Commission wrote to the Secretary General of the Organization of American States to inquire if the State of Nicaragua deposited with the General Secretariat a declaration concerning recognition of the competence of the Commission to receive and examine communications in which a state party alleges that another state party has committed a violation of a human right set forth in the Convention. The Commission also asked the Secretary General to inform it if, in the event that it had received said declaration, the General Secretariat transmitted a copy of it to the member states in keeping with Article 45 of the American Convention on Human Rights. In response to this inquiry, on October 27, 2006, the Director of the Department of International Legal Affairs -which is under the immediate orders of the Secretary General and supervises the Office of International Law- wrote to the Inter-American Commission to inform it that "on February 6, 2006 the General Secretariat received a note, which is enclosed, in which the Government of Nicaragua informs that in a declaration of January 26, 2006, it added a third paragraph to Declaration 49 of January 15, 1991, concerning the American Convention on Human Rights, in which it recognized the competence of the Commission to receive and examine communications in which a state party alleges that another state party has committed a violation of a human right set forth in the Convention. Today, in accordance with Article 45 of the American Convention on Human Rights, a copy of that declaration will be transmitted to the member states of the Organization.”[31] On November 1, 2006, the Commission wrote to both parties in this case in order to convey to them the inquiry made to the General Secretariat as well as the reply to that inquiry. On that occasion, the Commission informed the States of Nicaragua and Costa Rica of its decision to defer treatment of this matter until the debate and decision on the merits of the case.
39. On October 26, 2006 the Commission received a note from the State of Costa Rica in which it reiterated its request that the IACHR declare itself incompetent to take up the interstate communication and expressed its categorical rejection of the competence of the Inter-American Commission to examine the communication presented by the State of Nicaragua against it on February 6, 2006.[32] The Commission forwarded this note to the State of Nicaragua on November 1.
40. On November 3, 2006, the State of Costa Rica requested the Commission for information on the progress of the instant case, in response to which the Commission wrote to both states on the same day to advise them that “on September 7, 2006 the Inter-American Commission, in accordance with Article 37(3) of its Rules of Procedure, decided to defer its treatment of admissibility until the debate and decision on merits. In that connection, pursuant to Article 38(1) of its Rules of Procedure, the Commission requested the State of Nicaragua to submit its observations on merits. The pertinent portions of those observations would be transmitted to the State of Costa Rica so that it might present its comments in accordance with the above-cited Article 38(1) of its Rules of Procedure”.
41. On November 6, the Commission received a note from the State of Nicaragua in which the latter enclosed the Official Minutes of the Fifth Meeting of the Costa Rica-Nicaragua Binational Commission and said that the minutes in question are neither evidence nor constitute additional information on the present interstate case.[33] The Commission conveyed this note to the State of Costa Rica on November 8.
42. On November 9, 2006, the Commission received a note from the State of Nicaragua in which it reiterated that it duly deposited its declaration with the General Secretariat of the Organization of American States in a timely manner and recalled that the State of Costa Rica in its initial observations on the instant interstate communication accepted that the State of Nicaragua brought said declaration to the attention of the General Secretariat of the OAS on February 3, 2006, and, therefore, in its opinion, by virtue of the principle of openness, there was no detriment to the State of Costa Rica.[34] This information was transmitted to the State of Costa Rica on November 10, 2006.
43. On November 21, 2006, the Commission received a note from the State of Nicaragua in which its presented its observations on merits in the case[35]. This note was forwarded on November 22 to the State of Costa Rica, which was granted two months to submit additional observations on merits in accordance with Article 38 (1) of the Rules of Procedure of the IACHR.
44. On January 19, 2007, the State of Costa Rica wrote to the Commission to request an extension of 15 days to present its observations on the Nicaraguan State’s arguments on merits.[36] That same day, the Commission notified both parties of its decision to grant the requested extension of 15 days to the State of Costa Rica, which extension would start to run on the date that the period originally granted to the Costa Rican State to presents its submissions on merits expired. Accordingly, the deadline for presentation of arguments on merits was put back until February 5, 2007.
45. On January 16, 2007, the representatives of the State of Nicaragua wrote to the Commission to request a hearing in the framework of the 127th Session of the IACHR to address “questions of admissibility, merits and other petitions” relating to the case.[37] In that respect, on January 29, 2007 the Commission informed the State of Nicaragua that, having given consideration to its request and bearing in mind the stage of the proceeding and the fact that the Commission had twice held hearings on this case, it decided that it was not appropriate on this occasion to hold the hearing requested. The Commission also asked the State of Nicaragua to send any new information or facts that it deemed relevant and were not included in the record of the case in reference.
46. On February 2, 2007 the State of Costa Rica wrote to the Commission to request that the IACHR declare, immediately and without delay, that it was not competent to take up the instant case; declare the communication presented by the State of Nicaragua to be obviously out of order and inadmissible; pronounce its opinion on the preliminary objections submitted by the Costa Rican State; express its position on the irregularities in the procedure; and clarify who, if any, were the victims in the petition.[38] On February 6, 2007 the Commission informed the State of Costa Rica that, as it had been notified on November 1, 2006, the IACHR decided to defer its treatment of this matter until the debate and decision on merits. That same day, February 6, the Commission transmitted the communication of the State of Costa Rica to the State of Nicaragua, together with its annexes, and also the reply that the Commission sent to the Costa Rican State.
47. On February 5, 2007, the State of Costa Rica presented to the Commission its observations on merits in the case,[39] which were transmitted to the State of Nicaragua through its Permanent Mission to the OAS on February 6, 2007. In that connection, February 7, 2007, the Commission received a note from the State of Nicaragua in which the representatives of the State of Nicaragua said that they did not consider themselves officially notified of the observations that the State of Costa Rica presented on the merits of the matter because the fax by which the Executive Secretariat transmitted said observations to the Nicaraguan State had reached the Ministry of Foreign Affairs in an incomplete state. For its part, on February 21, 2007, the Commission informed the State of Nicaragua that the communication of February 5, 2007, in which the State of Costa Rica presented its additional observations on the merits of the case, was transmitted to the Permanent Mission of the Republic of Nicaragua to the Organization of American States on February 6, 2007, and that, in accordance with the practice of the Inter-American Commission, transmission to the Mission amounts to notification of the State. The State of Nicaragua was also informed that the document was sent by courier to the Ministry of Foreign Affairs of Nicaragua on February 7 and newly transmitted in full by fax on February 8, 2007.
48. On February 28th, 2007 the Commission received a note[40] by which the State of Nicaragua presented its observations in relation to the merits position of the State of Costa Rica. This note was transferred to the State of Costa Rica on March 7th, 2007.
III. POSITIONS OF THE PARTIES
49. The interstate communication presented by the State of Nicaragua alleges that the “persons injured by the human rights violations are the following:
i. Natividad Canda Mairena, a Nicaraguan national, brutally mauled by two Rottweiler dogs, on November 10, 2005, at the entrance to the cemetery in Lima, Cartago, Costa Rica. […] ii. José Ariel Urbina Silva (sic),[41] murdered in Guácima, Alajuela, Costa Rica, on December 4, 2005. iii. José Antonio Martínez Urbina, grievously injured in the same incident in which Urbina Silva (sic) was murdered; admitted to the Men’s Surgical Ward of Mexico Hospital, San José, Costa Rica. iv. Francisco Angulo García, grievously injured in the same incident in which Urbina Silva (sic) was murdered; admitted to the Men’s Surgical Ward of Alajuela Hospital, San José, Costa Rica. v. Rito Antonio Obando, who sustained injuries by stoning in the same incident in which Urbina Silva (sic) was murdered. vi. Elder Angulo García, who sustained injuries by stoning in the same incident in which Urbina Silva (sic) was murdered. vii. The Nicaraguan migrant population in a vulnerable situation in Costa Rica.”[42]
50. The Commission notes that the interstate communication presented by the State of Nicaragua refers to three separate situations, distinctions for which are made in the descriptions of the positions of the parties, as follows:
i. The particular situation of Mr. Leopoldo Natividad Canda Mairena. ii. The particular situation of Messrs. José Ariel Silva Urbina, José Antonio Martínez Urbina, Francisco Angulo García, Rito Antonio Obando, and Elder Angulo García. iii. The situation of the Nicaraguan migrant population in a vulnerable situation in Costa Rica.
A. Position of the State of Nicaragua[43]
Position of the State of Nicaragua on the case of Mr. Leopoldo Natividad Canda Mairena
51. The State of Nicaragua alleges in its interstate communication that on November 10, 2005, Mr. Leopoldo Natividad Canda Mairena had died, “brutally mauled, in long and public agony, by two Rottweiler dogs in the workshop owned by Mr. Fernando Zúñiga located at the entrance to the cemetery in Lima, Cartago, Costa Rica”[44]. The State of Nicaragua alleges that the incident “lasted approximately two hours and was witnessed by the owner of the workshop and the two dogs, Mr. Fernando Zúñiga Mora; the security guard, Luis Hernández; the head of the security company, Hugo Ceciliano Rodríguez; armed policemen, firefighters, and curious onlookers.” The interstate communication also mentions that Mr. Canda Mairena “bled to death shortly afterwards in Max Peralta Hospital, with some 200 wounds in which bones were exposed, which caused his cruel and inhuman demise.” The State of Nicaragua attaches, inter alia, video recordings of the incident, the forensic medical report issued on December 5, 2005, by the Forensic Pathology Section of the Forensic Medicine Department of the Judicial Investigation Agency of Nicaragua (OIJ), as well as photographs taken at the autopsy.
52. The Nicaraguan State adds in its interstate communication that the policemen who witnessed the incident "simply acted as bystanders and, worse yet, if proven, prevented, according to an eyewitness, the intervention of third parties to aid the victim […]. Testimonies given to the press and a video recording of the events, which was repeatedly broadcast in both Nicaragua and Costa Rica, suggest that the armed policeman had the opportunity to rescue Canda and even to shoot the dogs, since the animals withdrew to a sufficient distance to enable them to do so without endangering the victim of the attack.” The interstate communication presented by the State of Nicaragua also cites a Report of the Judicial Investigation Agency, according to which the death of Mr. Canda Mairena “could have been averted if the policeman who were at the emergency had seized at least two opportunities that arose before the firefighters acted using a fire hose.”[45] The State of Nicaragua alleges that, in spite of the foregoing, only two of the eight policemen have been prosecuted in connection with this case.
53. The State of Nicaragua argues that “the merely passive presence of armed police, as the authority of the State of Costa Rica at the incident, the delay of the OIJ in reporting its findings on the matter,[46] the public statements of government authorities playing down the incident, the failure to press charges, and the absence of a proceeding before a competent tribunal clearly show that the rules of due process are being violated and, in particular, that there has been a delay of justice in a case which, given its dimensions and complexity, warrants rapid responses and effective remedies from State of Costa Rica.”[47] Therefore, the State of Nicaragua alleges violation by the Costa Rican State of Articles 8 and 25 of the American Convention (Judicial Protection), due to the fact that the “OIJ allowed more than 70 days to pass before it presented the requisite report on the supposed investigations that it has carried out as a result of the human rights violations in which Mr. Natividad Canda Mairena lost his life. [It further argues that] the inexplicable delay in presenting the report and the additional six months granted to the Office of the Prosecutor to formally press criminal charges against those responsible constitute a delay of justice.”[48]
54. The State of Nicaragua also claims that Mr. Natividad Canda Mairena has been the victim of the discrimination to which Nicaraguan migrants who reside in Costa Rica are subjected. To show that the persons who witnessed the incident knew that Mr. Canda Mairena was Nicaraguan, the State cites a press clipping from Nuevo Diario newspaper of February 21, 2006, in which Mrs. Cipriano Mercedes Canda Mairena, says that her brother, Natividad, was the victim of an act of revenge by the security guard at Mr. Zúñiga’s workshop, Guillermo Hernández, who is the father-in-law of another sibling who resides in Costa Rica, Regino Antonio Canda Mairena.”[49]
55. As an annex to the interstate communication, the State of Nicaragua provided a video to show what happened to Mr. Canda Mairena and the alleged passive reaction of the policemen. The video contains recordings of a series of television news programs broadcast in Nicaragua and Costa Rica. The selected recordings show how different television media covered the news of Mr. Natividad Canda Mairena’s death, showing images of the attack, as well as opinions of people in both countries expressed through telephone calls made by viewers and in live interviews.
56. To demonstrate that the alleged discrimination occurred both at the time of the incident and during the processing of the case by the Costa Rican judicial authorities, the State of Nicaragua mentioned by way of an example a similar case that occurred on January 25, 2006, in which a Costa Rican minor aged seven (Jorshan Brown) was attacked by Rottweiler dogs in Puerto Limón, Costa Rica. In this incident, according to the State of Nicaragua, "the dog involved was promptly destroyed.” Furthermore, the State of Nicaragua mentions that in this case the medical report was produced less than 72 hours after the attack, whereas in the case of Mr. Natividad Canda Mairena there was a delay of almost 2 months before the forensics report was included in the case file. Accordingly, the State of Nicaragua alleges violation by the State of Costa Rica of Article 24 of the American Convention (Right to equal protection), and states as its reasoning that “despite the seriousness of the incident, the treatment it received was different to that given, for example, to the case of the boy Jorshan Brown.”[50]
57. Another example that purportedly demonstrates the discrimination of which Mr. Canda Mairena was allegedly a victim, according to the State of Nicaragua, is the fact that "the police of the State of Costa Rica acted differently in the early hours of October 26, 2006, when the Costa Rican citizen, Cristian Rodríguez Nazareno, attempted to enter the workshop owned by Mr. Fernando Zúñiga, at the entrance to the cemetery in La Lima, Cartago, in circumstances similar to those of the Canda Mairena case; on this occasion, they shot at the Rottweiler dogs, killing one of them, and, so, saved his life, which they could have done in the case of the aforementioned Mr. Canda, who unfortunately died as a result of the attack by those dogs because the State police patently acted with passive negligence.”[51]
58. In its arguments on merits in the case, the State of Nicaragua drew attention to the fact that in this case "approximately one year has passed and the Office of the Prosecutor has only indicted two policeman, leaving uncharged six others who also committed offences by omission because they merely stood by as witnesses to the horrendous incident in which Natividad Canda was attacked by two Rottweiler dogs, to the satisfaction of the security guard and of the owner of the workshop and the dogs.”[52] Based on the foregoing, in its interstate communication the State of Nicaragua contends that “in the particular circumstances of this case […] there has been a delay of justice.”[53]
Position of the State of Nicaragua on the case of Messrs. José Ariel Silva Urbina, José Antonio Martínez Urbina, Francisco Angulo García, Rito Antonio Obando and Elder Angulo García
59. As regards Messrs. José Ariel Silva Urbina, José Antonio Martínez Urbina, Francisco Angulo García, Rito Antonio Obando and Elder Angulo García, all of whom are Nicaraguan citizens originating from the Department of Boaco, the State of Nicaragua alleges that on December 4, 2005, they were in a bar called Los Espejos, located in Guácima, Alajuela, in Costa Rica. According to the petition, there were some 25 to 30 other persons, presumably Costa Ricans, also in the bar. In its submissions, the State of Nicaragua described what happened in the bar as follows: "At approximately between 11:00 and 12:00 at night, without reason a group of Costa Ricans launched a verbal attack with xenophobic remarks against the six Nicaraguans who were in the place, and began to insult them with coarse and offensive comments that caused feelings to run high because at least a sizeable portion of the persons present began to hurl abuse and encouraged the insults started by the group in question. For that reason, the six Nicaraguans decided to vacate the bar and leave the area. The first to leave the bar was José Ariel Urbina Silva (sic), a situation of which the group that had started the insults took advantage to verbally abuse the young Nicaraguan, who responded verbally. The aggressors in the bar moved from words to stones and for that reason the Nicaraguans opted to withdraw. Their assailants pursued them and two individuals caught up with them; one of them lunged at José Ariel Urbina Silva (sic) and, subsequently, caught hold of José Antonio Martínez Urbina. Another individual, holding a knife, attempted to attack Elder José Angulo García but his brother, Francisco Angulo García intervened in his defense and was injured by this attacker. Even though they had been assaulted with a knife, they were stoned by the crowd that surrounded them, without anyone coming to their defense or aid.”[54]
60. Later, in the framework of the public hearing held on July 18 in Guatemala, the State of Nicaragua furnished a video recording that contained a behind-the-scenes account of the events that occurred outside Los Espejos bar in Guácima, Alajuela after the Nicaraguan citizens decided to leave, presumably in reaction to the insults and verbal abuse prompted by their nationality. The video includes an interview with one of the victims, Mr. José Antonio Martínez, who describes how he was attacked in the street and confirms the version of the events that the State of Nicaragua presented to the Commission.
61. According to the interstate communication presented by the State of Nicaragua, as a consequence of the attack, Mr. José Ariel Silva Urbina died; Mr. José Antonio Martínez Urbina was admitted to hospital and treated for different injuries including some caused by a cutting and stabbing weapon; Mr. Francisco Angulo García was admitted to hospital and treated for multiple wounds caused by a cutting and stabbing weapon; while Messrs. Rito Antonio Obando and Elder Angulo García sustained minor injuries caused by impact of stones. The State of Nicaragua also mentions in the interstate communication that Mr. Francisco Angulo García was admitted to the Psychiatric Hospital because of problems assimilating what happened.
62. As to the reasons that allegedly prompted this incident, the State of Nicaragua argues that it may be concluded from the testimonies of the four surviving victims that the incident that occurred on December 4, 2005, "constitutes a xenophobic attack inasmuch as it arose from the insults and comments concerning nationality, an incident that cannot be considered an individual attack given the clear participation of 25 to 30 persons, presumably Costa Ricans, who were at the scene of the incident." The Nicaraguan State adds that the assailants were aware of the nationality of the victims, who mentioned in their testimonies that some of the persons at the scene knew them. Accordingly, the State of Nicaragua categorizes what happened as hate crimes.
63. The State of Nicaragua alleges violation on the part of the Costa Rican state of Articles 8 and 25 of the American Convention as a consequence of the fact that the "inexplicable delay" in the presentation of the report of the judicial investigation agency and the granting of an additional six months to the Office of the Prosecutor to formally charge those responsible constitute a delay of justice.[55] Furthermore, the State of Costa Rica claims that in addition to a delay of justice there have also been procedural faults, in as much as the person allegedly responsible for the death of José Ariel Silva Urbina has reportedly been released as a result of a precautionary measure.
Position of the State of Nicaragua on the Nicaraguan migrant population in a vulnerable situation in Costa Rica
64. As regards the Nicaraguan migrant population in Costa Rica, the State of Nicaragua argues that "the circumstances that have surrounded the case of Natividad Canda, as well as the murder of José Ariel Urbina and the attacks on Francisco Angulo García, Elder José Angulo García, José Antonio Martínez Urbina, Rito Obando and other companions, are merely outward symptoms of a much deeper underlying situation rooted in sentiments of xenophobia, intolerance, and rejection that reign in some sectors in Costa Rica, despite the solidarity and generosity that prevails in the vast majority of the noble Costa Rican people.”[56]
65. In that connection, the State of Nicaragua alleges that the deaths of Messrs. Natividad Canda Mairena and José Ariel Silva Urbina are consequences of the prevailing absence of guarantees in Costa Rica arising from visible attitudes of xenophobia and discrimination.[57] It further alleges that these acts "generated a situation that demonstrates that the phenomenon goes further than might seem at first sight, since opinions and actions have emerged that demonstrate deep-rooted discrimination and xenophobia in Costa Rica.”[58]. The Nicaraguan State adds that the "Canda case and, in particular, the Urbina Silva (sic) case, are two incidents of human rights violations that, while certainly very im |
