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REPORT
Nº 25/01 I.
SUMMARY 1.
On January 26, 1999, Dr. Alvaro José Robelo González (hereinafter
“the petitioner”) lodged a complaint with the Inter-American
Commission on Human Rights (hereinafter “the Commission” or “the
IACHR”) against the Republic of Nicaragua (hereinafter “the Nicaraguan
State” or “Nicaragua”), alleging that said State of Nicaragua
violated his right to nationality and his political rights by declaring
him a foreigner and thus preventing him for running in the presidential
election of October 20, 1996. He claims that later he was also prevented
from running for the legislature and, subsequently, he was kept from
voting in the election when the Electoral Verification Office refused to
give him his citizen’s identification card. As a result, he filed an amparo
constitutional relief suit with the Supreme Court of Justice, which ruled
in his favor; however, the decision was not enforced. 2.
The Nicaraguan Alliance, the political party for which Mr. Robelo
was the presidential candidate, challenged this situation before the
Supreme Electoral Council, arguing that Mr. Robelo was a Nicaraguan
citizen who was born in the city of León to a Nicaraguan mother and
father. Mr. Robelo also stated that he had acquired Italian nationality
when he married an Italian citizen but that he had never renounced his
Nicaraguan citizenship. 3.
The petitioner also claimed that a judicial error was made in the
judgment handed down by the Supreme Electoral Council and that a campaign
of political persecution had been waged against him. To summarize, the
petitioner challenges the elections held in Nicaragua in October 1996 and claims that the State is responsible for violating several of
his rights that are protected by the American Convention on Human Rights:
to personal integrity (Article 5), to due process (Article 8), to
compensation for the miscarriage of justice (Article 10), to nationality
(Article 20), to participate in government (Article 23), to equality
before the law (Article 24), and to judicial guarantees (Article 25). 4.
The Nicaraguan State challenged these claims, alleging that
domestic remedies had not been exhausted, and said that the Supreme Court
of Justice had approved the manufacture of an identification card, which
could be collected by the applicant after he had demonstrated his status
as a citizen. However, Mr. Robelo did not pursue the procedure for
reclaiming his original nationality. 5.
After analyzing the legal and factual claims submitted by the
parties during processing of this complaint, the Inter-American
Commission, meeting at its 110th session from February 20 through March 9,
2001, decided to declare Case 12.144 inadmissible. II.
PROCESSING BY THE COMMISSION
6.
On May 7, 1999, the Commission opened this case as Nº 12.144,
transmitted the relevant parts of the complaint to the Nicaraguan State,
and asked it to reply within 90 days. On that same date, it informed the
petitioner that the case had been opened. 7.
In the months of May, June, and August 1999, the petitioner sent
the Commission additional information, repeating the content of his
complaint. 8.
The State sent its reply on August 2, 1999, stating that domestic
remedies had not been exhausted in this case and consequently asking the
Commission to declare it inadmissible. 9.
On October 6, 1999, the petitioner told the Commission that the
Immigration and Nationality Directorate had cancelled his Nicaraguan
passport. He also told the Commission that he had received death threats
over the telephone and, as a result, was seeking precautionary measures
for himself and his wife, Lucía Raffone. 10.
On October 7, 1999, the State of Nicaragua sent the IACHR a copy of
the Immigration and Nationality Directorate’s Resolution 095/99, dealing
with Mr. Robelo’s case, in which it was resolved to refuse him a
certificate of Nicaraguan nationality. 11.
After considering the documents submitted by Mr. Robelo González,
the Commission, meeting at its 104th session, decided to instruct the
State of Nicaragua to implement precautionary measures on October 7, 1999. 12.
On October 12, 1999, the Nicaraguan State informed the Commission
that it had forwarded the request for precautionary measures to the
Interior Ministry so that, in consultation with the interested parties, it
could proceed to comply with the requests made by this international
agency.
13. The petitioner duly informed the Commission that on October 25, 1999, the Interior Minister met with him and his wife in order to reach a joint agreement on the precautionary measures. As a result of this meeting, Mr. Robelo was assigned a police escort at his home. 14.
By means of a letter dated March 2, 2000, the State informed the
Commission about the partial amendment of the Nicaraguan Constitution,
which established that: “No national may be deprived of his nationality.
Nicaraguan nationality shall not be lost upon acquisition of another
nationality.” III. POSITIONS OF
THE PARTIES A.
Position of the Petitioner 15.
The petitioner claims that the Supreme Electoral Council, in a
decision dated July 5, 1996, declared him a foreigner. As a result, he was
disqualified from standing as a candidate for the presidency of the
Republic of Nicaragua. Later he was disqualified from running for a seat
in the legislature and, ultimately, he was prevented from voting in the
1996 elections.
Based
on the foregoing, the petitioner’s complaint challenges Nicaragua’s
October 1996 elections. 16.
The petitioner states that on July 10, 1996, he filed for amparo
constitutional relief with the Supreme Court of Justice. The Supreme Court
passed judgment on November 20, 1996, ruling that the Supreme Electoral
Council was not empowered to strip any of the country’s citizens of
their nationality and that the Interior Ministry had not processed Mr.
Robelo’s nationality or stripped him of it. 17.
The petitioner claims that on October 14, 1996, the Electoral
Verification Office refused to give him his citizen’s identification
card, arguing that he had renounced his Nicaraguan nationality and become
an Italian citizen. 18.
The petitioner reports that he took his case to the Supreme Court,
which ruled in his favor on February 3, 1998, ordering the Supreme
Electoral Council to instruct the General Directorate of Certificates to
enforce, with respect to the petitioner, the terms of Articles 2 and 3 of
the Citizen Identification Law. He further states that regardless of the
Supreme Court’s ruling, the Electoral Council did not obey these
instructions and refused to give him his identification card. The
petitioner also claims that the ruling handed down by the Electoral
Council contains a legal error and constitutes political persecution. 19.
Finally, the petitioner points out that Article 2 of Law 205
stipulates that amparo relief is not admissible against resolutions issued in
connection with electoral matters. Thus, both the Amparo Law and the
Nicaraguan Constitution admit no appeals against the decisions of the
Supreme Electoral Council. B.
Position of the State 20.
The Nicaraguan State holds that the complaint lodged by Mr. Alvaro
Robelo González with the Inter-American Commission is defective on legal
and factual grounds. The State denies that Mr. Robelo’s human rights
were violated or that he has been persecuted by the Supreme Electoral
Council or any other agency of the Nicaraguan Government. The State holds
that the complaint as submitted by the petitioner is formally defective,
in that Nicaragua’s domestic remedies have not been exhausted. 21.
The State notes that on February 3, 1998, the Constitutional
Chamber of Nicaragua’s Supreme Court of Justice ruled on the amparo
relief filed by Mr. Robelo against the Supreme Electoral Council, ordering
that Council to instruct the General Directorate of Certificates to
enforce, with respect to the petitioner, Articles 2 and 3 of the Citizen
Identification Law. The State also reports that on May 25, 1998, the
Electoral Council sent the Constitutional Chamber the order for the
petitioner to be given his identification document once he had complied
with the requirements of the Certification Law. 22.
The State further claims that the petitioner has not exhausted the
procedure set forth in Articles 49 and 50 of the Amparo Law for compliance
with the Supreme Court’s judgment.[1]
It adds that Mr. Robelo could have filed for amparo relief against the General Directorate of Certificates for
its refusal to hand over his identification card. 23.
The State maintains that pursuant to Nicaraguan law, the case in
hand does not involve the arbitrary or illegal denial of nationality, but
rather the petitioner’s acquisition of Italian citizenship and,
consequently, pursuant to the laws in force at the time, the loss of his
original nationality. The State notes that at present, following an
amendment made to Nicaragua’s Constitution in January 2000, a person can
hold both nationalities, Nicaraguan and Italian. To date, however, Mr.
Robelo has taken no steps toward recovering his Nicaraguan nationality. IV.
ANALYSIS OF ADMISSIBILITY A.
Competence of the Commission 24.
The Commission is, prima
facie, competent to examine the petition submitted by Mr. Alvaro José
Robelo González (ratione personae), in that it addresses events that took place under
the jurisdiction of the Nicaraguan State (ratione loci) and describes alleged violations of rights enshrined
in the American Convention (ratione
materiae)—the right to physical integrity (Article 5), the right to
due process (Article 8), the right to compensation (Article 10), the right
to a nationality (Article 20), political rights (Article 23), the right to
equality before the law (Article 24), and the right to judicial guarantees
(Article 25)—as set forth in Article 44 of the Convention, to which
Nicaragua has been a State Party since September 25, 1979. 25.
The Commission will now analyze whether this petition meets the
formal requirements for admissibility set by Articles 46 and 47 of the
American Convention on Human Rights. B.
Exhaustion of Domestic Remedies 26.
Article 46(1)(a) of the American Convention provides that: Admission
by the Commission of a petition or communication lodged in accordance with
Articles 44 or 45 shall be subject to the following requirements: a.
that the remedies under domestic law have been pursued and
exhausted in accordance with generally recognized principles of
international law. 27.
The Commission has repeatedly emphasized the “accessory and
complementary” character of the inter-American human rights protection
system. This character is reflected in Article 46(1)(a) of the Convention,
which enables states to resolve disputes under their own legal systems
before facing international proceedings. 28.
In the case at hand, the petitioner claims to have reported the
alleged human rights violations to the domestic judicial authorities
provided for by Nicaraguan law; nevertheless, the pursuit of those
domestic remedies bore no fruit. 29.
In turn, the State of Nicaragua explicitly challenges the
petitioner’s allegations vis-à-vis the exhaustion of domestic remedies.
The State, upon receiving formal notification of the petition, invoked the
failure to exhaust domestic remedies and thereby challenged the
admissibility of the complaint. The State replied to all the requests for
information sent by the Commission, including those dealing with domestic
remedies. 30.
The following list itemizes the claims related to domestic remedies
made by the parties: Remedies
related to political rights: i)
On July 5, 1996, the Supreme Electoral Council issued a resolution
disqualifying Mr. Robelo as candidate in Nicaragua’s presidential
election, against which he appealed.
On
July 10, 1996, the Supreme Electoral Council gave Mr. Robelo González a
certified resolution declaring him a foreigner and disqualifying him from
the presidential race. ii)
On July 10, 1996, the petitioner filed for amparo
relief with the Court of Appeals in León against the Supreme Electoral
Council’s resolution declaring him a foreigner. The León Court of
Appeals admitted the amparo suit and sent the proceedings to the Supreme Court of
Justice. iii)
On November 20, 1996, the Supreme Court, in Judgment Nº 159, ruled
as follows on the appellant’s request to extend the remedy to all the
magistrates of the Supreme Electoral Council because he knew that said
court was attempting to strip him of his nationality: “This Supreme
Court believes that, although extending the remedy to other officers
different from those in the original appeal is inadmissible, the
appellant’s claim lacks legal grounds in that the Supreme Electoral
Council is not empowered to strip any citizen of this country of his
nationality, a power that belongs exclusively to the Interior Ministry
(…) and the Interior Ministry has neither processed Dr. Alvaro Robelo
González’s Nicaraguan nationality nor stripped him of it.” iv)
In this same judgment (Nº 159), the Supreme Court also said:
“The resolution of the Supreme Electoral Council (…) does not order
Dr. Alvaro Robelo González’s nationality cancelled, nor could it, and
in fact has not stripped him of his Nicaraguan nationality; what it does
determine is his disqualification as a candidate for presidential office
in that he does not meet the requirements set, particularly those
contained in the Constitution and in the constitutional laws, all of which
address the question of elections.” The Court also noted that: “in
Nicaragua electoral questions are the competence of another independent
branch of government: the electoral branch, an autonomous agency with both
administrative and jurisdictional functions, against the final decisions
of which there is no appeal.” Finally, the Court stated that it would
not admit the amparo remedy filed as a part of Dr. Robelo’s bid to annul
the resolution of the Supreme Electoral Council. Remedies
related to the rights of physical integrity and liberty: v)
Mr. Robelo filed a habeas corpus suit with the Appeals Court in
Managua on July 15, 1996, alleging threats of illegal arrest and naming
the Interior Minister, the Director of Immigration and Nationality, and
the magistrates of the Electoral Council. The Court ruled in his favor
that same day, ordering that Mr. Robelo’s liberty and security be
respected. vi)
On June 2, 1999, Mr. Robelo filed an amparo
remedy with the First Criminal Judge in Managua, alleging threats of
illegal arrest made by officials from the General Directorate of
Immigration and Nationality. In a resolution dated June 25, 1999, the
judge ruled that remedy admissible and ordered that Mr. Robelo’s liberty
and personal security be respected. Remedies
related to the right to nationality: vii)
Along with the other remedies, on January 23, 1996, the petitioner
lodged a request for a citizen’s identification card with the General
Directorate of Certificates. On October 14, 1996, that Directorate sent
Mr. Robelo its Resolution Nº 1, refusing to give him a card on the
grounds that he was not Nicaraguan. xiii)
On November 15, 1996, Dr. Robelo filed an appeal against Resolution
Nº 1 with the Supreme Electoral Council. On June 19, 1997, when no answer
was forthcoming, the petitioner once again filed suit with the Court of
Appeals, which processed it and forwarded the proceedings to the Supreme
Court. The Supreme Court gave its ruling on February 3, 1998, ordering the
Supreme Electoral Council to instruct the General Directorate of
Certificates to enforce, with respect to the petitioner, the terms of
Articles 2 and 3 of the Citizen Identification Law. ix)
On
March 31, 1998, the National Certification Commission, by means of its
Resolution Nº 2, decided to approve continued processing of Mr.
Robelo’s identification card, ordering that prior to requesting delivery
of the card, the certificate from the Interior Ministry’s General
Directorate of Immigration and Nationality showing the status of his
nationality should be presented. x)
On July 30, 1999, the petitioner asked the Director General of
Immigration and Nationality for a certificate of Nicaraguan citizenship.
On August 27, 1999, the Immigration and Nationality Directorate, in its
Resolution 095-99, refused Mr. Robelo that certificate on the grounds
that, despite having been born Nicaragua, he was an “Italian citizen by
his own volition since 1976, which nationality has been confirmed both by
his request for a foreign citizen’s residence permit in Nicaragua,[2]
and by the fact that he has retained his Italian nationality and made no
request to reclaim his original nationality.” xi)
On September 3, 1999, the petitioner filed for a review of
Resolution Nº 095-99 with the General Directorate of Immigration and
Nationality. In a letter dated September 27, 1999, the petitioner was told
that the Resolution was upheld because he had lost his Nicaraguan
nationality upon acquiring Italian citizenship. xii)
The General Directorate of Immigration and Nationality informed Mr.
Robelo on October 1, 1999, that with the upholding of Resolution Nº
095-99, his Nicaraguan passport (Nº C-384586), was cancelled. xiii)
On November 11, 1999, the petitioner was informed of Resolution Nº
042-99, with which the Interior Ministry decided to uphold Resolution Nº
095-99, denying Mr. Robelo's request for a certificate of Nicaraguan
nationality. Resolution 042-99 also ordered Mr. Robelo to put his
migratory status into good legal order. 31.
After analyzing the different domestic remedies pursued by Mr.
Robelo, the Commission concludes that: with regard to the exhaustion of
domestic remedies related to the petitioner’s alleged violations of his
political rights, he pursued the different legal remedies offered by
Nicaraguan law; the courts, in turn, ruled on them and handed down their
final decision on November 20, 1996. Consequently, the Commission
concludes that the exhaustion of domestic remedies requirement set by
Article 46(1)(a) of the Convention has been met. 32.
With regard to the exhaustion of domestic remedies related to the
alleged violation of his right to integrity, the Commission has noted that
the petitioner filed an amparo
suit and a habeas corpus action in connection with threats of illegal
arrest. In both cases, the courts ruled in Mr. Robelo’s favor, ordering
that his liberty and personal security be respected. Consequently, the
Commission holds that the domestic remedies were exhausted in compliance
with Article 46(1)(a) of the Convention and, in addition, that they proved
to be effective. 33.
As regards the exhaustion of domestic remedies related to alleged
violations of the petitioner’s right to nationality, the Commission
notes that the Supreme Court ruled in his favor on February 3, 1998.
Consequently, on March 31, 1998, the National Certification Commission
decided to approve the issue of a citizen’s identification card to Mr.
Robelo, ordering that prior to delivery of the card, the certificate from
the Interior Ministry and the General Directorate of Immigration and
Nationality showing the status of his nationality should be presented.
However, the petitioner allowed a year and four months to go by before
pursuing the formalities needed to obtain that certificate of status. When
the petitioner finally requested the nationality certificate, on July 30,
1999, it was refused, on the grounds that he had failed to follow the
correct procedure—namely, he took no steps toward recovering his
original nationality (an indispensable prerequisite for demonstrating his
status as a Nicaraguan citizen). 34.
In this regard, the Inter-American Court of Human Rights has stated
that: “the mere fact that a domestic remedy does not produce a result
favorable to the petitioner does not in and of itself demonstrate the
inexistence or exhaustion of all effective domestic remedies. For example,
the petitioner may not have invoked the appropriate remedy in a timely
fashion.”[3] 35.
It should be noted that the complaint was lodged with the
Commission even before the domestic remedies related to the petitioner’s
right to Nicaraguan nationality were fully exhausted and that, while it
was being processed, the domestic proceedings came to an end.
Consequently, the Commission will now analyze the parties’ claims
regarding this right. Irrespective of this, the IACHR holds that the
petitioner did have access to the domestic remedies offered by the
country’s laws; however, he did not exhaust the appropriate or
applicable remedies in accordance with the terms of Article 46(1)(a) of
the American Convention.
C.
Timeliness of the Complaint 36.
Article 46(1)(b) of the American Convention provides that for a
petition to be admitted, it must be “lodged within a period of six
months from the date on which the party alleging violation of his rights
was notified of the final judgment.” 37.
In his complaint, the petitioner claims that the Supreme Electoral
Council’s resolution of July 10, 1996, declared him a foreigner and, as
a result, he was kept from exercising his political rights (Article 23);
for that reason, he challenges the elections held in Nicaragua in October
1996. 38.
In this regard, the Commission notes that the resolution was
relayed to the petitioner on July 10, 1996, and the final judgment of the
Supreme Court of Justice rejecting the amparo
relief sought by Mr. Robelo is dated November 20, 1996. In addition, the
complaint as lodged with the IACHR is dated January 26, 1999: in other
words, two years and two months after the six-month period allowed by the
Convention. 39.
Thus, the Commission holds that Mr. Robelo’s alleged violations
of his political rights, together with the alleged related violations of
his other rights—due process (Article 8), compensation for miscarriages
of justice (Article 10), equality before the law (Article 24), and
judicial guarantees (Article 25)—are extemporaneous and therefore
inadmissible under the terms of Article 46(1)(b) of the American
Convention. 40.
With regard to the alleged violations of the right to physical
integrity (Article 5), the Commission notes that the petitioner filed a
habeas corpus action, which was resolved in his favor on July 15, 1996.
Since the initial complaint was lodged with the IACHR on January 26, 1999,
the six-month period had been exceeded. The amparo
relief filed with the Supreme Court of Justice was submitted and ruled on,
in the petitioner’s favor, while this case was being processed. The
Commission notes, as stated above, that in both instances the petitioner
obtained a favorable judgment, ordering that his liberty and personal
security be respected. 41.
With regard to the alleged violations of the right to nationality
(Article 20), the Commission notes that the Interior Ministry’s final
resolution is dated November 11, 1999, when the petitioner was informed
that his request for a certificate of Nicaraguan nationality had been
refused. It should be noted that the initial complaint was lodged with the
IACHR on January 26, 1999, and the final resolution was issued while it
was being processed. For that reason, the Commission will examine the
parties’ claims in connection with this right in a later part of this
report. D.
Duplication of Proceedings and Res
Judicata 42.
Article 46.1.c of the Convention stipulates that for the Commission
to admit a petition or communication, the incidents it describes must not
be pending in any other international proceeding.
Similarly, Article 47(d) of the Convention provides that the
Commission will declare inadmissible any petition or communication that is
substantially the same as one previously studied by the Commission or
another international organization. 43.
The parties’ claims and the documents contained in the case file
do not indicate that the petition is pending in any other international
proceeding for settlement, or that it is substantially the same as any
petition previously studied by the Commission or other international
organization. The Commission therefore concludes that the case at hand
meets the admissibility requirements established by Articles 46(1)(c) and
47(d) of the American Convention on Human Rights. E.
Characterization
of the Alleged Facts 44.
Article 47(b) of the Convention stipulates that the Commission will
declare inadmissible any petition or communication when it “does not
state facts that tend to establish a violation of the rights guaranteed by
this Convention.” 45.
In the initial stage of the proceedings, the State claimed that the
complaint was groundless and denied that Mr. Robelo’s human rights had
been violated by the Government of Nicaragua. 46.
In turn, the petitioner claimed that on August 27, 1999, the State
of Nicaragua, in its Immigration and Nationality Directorate’s
Resolution 095/99, refused Mr. Robelo González a certificate of
Nicaraguan nationality, thus violating his right to a nationality under
Article 20 of the American Convention. 47.
Consequently, the Commission must determine, by means of a
preliminary examination of the petition’s merits, whether the
allegations it contains are duly grounded and do constitute violations of
Mr. Robelo’s right to nationality by the Nicaraguan State. 48.
Legal doctrine distinguishes between sociological nationality and
political nationality. The concept varies according to whether the system
adopted follows jus soli, wherein natural nationality is defined by place of birth,
or jus sanguinis, where
nationality is determined by the nationality of the parents. Finally,
“nationality by naturalization” is that conferred on a foreigner who
requests, in accordance with given conditions set by a State, its
nationality or citizenship and, as such, is eminently voluntary in nature. 49.
Regulating and determining nationality is the competence of each
sovereign state; it falls to the state to legislate the regulation of its
nationality and the acquisition of that nationality through
naturalization. Thus, each state stipulates, on a sovereign basis, the
rules for acquiring, losing, and recuperating its nationality.[4] 50.
The petitioner claims that he is a Nicaraguan citizen, born in the
city of León on January 6, 1947, to a Nicaraguan mother and father. He
further states that he acquired Italian citizenship on April 24, 1976, by
marrying an Italian citizen; nevertheless, he never renounced his
Nicaraguan nationality. 51.
The evidence before the IACHR indicates that under Italian law, Dr.
Alvaro Robelo holds Italian nationality, which he obtained pursuant to
Article 4(3) of Italy’s Law Nº 555 of June 13, 1912, which was the law
in force at the time he acquired that nationality. The aforesaid article
reads as follows:
52.
In the present case, the petitioner claimed that preserving his
Nicaraguan citizenship was at no time an impediment to Italian law, since
in Italy he was not required to renounce his original nationality. 53.
The Nicaraguan legal provisions governing the petitioner’s
nationality at the time he acquired Italian citizenship are set forth in
the Constitution of 1974, Article 21 of which stipulated that: Nicaraguan
nationality is lost: (1) By voluntary naturalization in a foreign country
that is not a nation of Central America. Natural citizens of Nicaragua who
thus lose their Nicaraguan nationality shall recuperate the same if at any
time they return to Nicaragua. 54.
When Mr. Robelo acquired Italian citizenship on April 24, 1976, the
Nicaraguan Constitution stipulated the ipso
iure
loss of his Nicaraguan nationality, irrespective of the terms of Italian
law. 55.
Mr. Robelo subsequently entered Nicaragua on January 7, 1993, using
his Italian passport (Nº 545752), as can be seen on the list of
admissions to the country provided by the State. Later, on June 6, 1993,
in his capacity as an Italian citizen, he requested a Nicaraguan foreign
resident’s card; this was granted on June 15, 1993, in the shape of
Temporary Residence Card Nº 29151, expiring on July 14, 1994. 56.
Article 15 of Nicaragua’s Nationality Law (Nº 149), published in
the Official Gazette on June 30, 1992, provides that: Nationals
shall lose their Nicaraguan nationality when they are voluntarily
naturalized in a foreign state, except when they acquire the nationality
of another Central American country or a dual nationality agreement
applies. 57.
The petitioner claims that under the Italian-Nicaraguan Convention
on Citizenship[5]
of September 20, 1917, in force since 1923, he holds dual nationality.
Thus, the question of Dr. Alvaro Robelo’s dual nationality must also be
examined in accordance with that Convention. 58.
Article 1 of the Italian-Nicaraguan Citizenship Convention rules
that: Italian
citizens resident in Nicaragua and Nicaraguan citizens resident in Italy
shall maintain and transmit, in accordance with the corresponding national
laws, their citizenship, except as provided for in this Convention. 59.
Article 4 of the same Citizenship Convention stipulates that: Italian
citizens who have acquired Nicaraguan citizenship and Nicaraguan citizens
who have acquired Italian citizenship
shall recuperate their original citizenship after two years’ residence
in the territory of the State whose citizenship they had abandoned. 60. Thus, Article 1 of the Italian-Nicaraguan Convention states that Nicaraguan citizens resident in Italy shall maintain and transmit their citizenship,[6] but it should be noted that this prerogative applies only to those Nicaraguan citizens who have resident
61.
The Citizenship Convention does not provide for the existence of
dual nationality of the general kind. It refers only to the possibility of
choosing between one nationality and the other, and that right is
restricted to the descendants of Italians or Nicaraguans born in the
territory of the other state and, even in those cases, it applies only to
those not yet of adult age. This interpretation is supported by the second
paragraph of Article 2 of the 1917 Convention, which stipulates that
descendants of Italians or Nicaraguans, “within one year of coming of
age, as determined by their laws, may choose either Nicaraguan or Italian
citizenship by means of a statement rendered personally to the authorities
of the state whose citizenship is being declined.” If the Convention
really did address dual nationality, this provision would be meaningless,
since the individuals in question would not have to choose between one
nationality and the other upon reaching adult age. 62.
The Commission holds that the 1917 Convention is not applicable to
Mr. Robelo’s situation and that, essentially, Nicaraguan law did not
allow simultaneous possession of Italian and Nicaraguan nationalities
after adult age had been reached. Mr. Alvaro Robelo’s acquisition of
Italian nationality in this case meant the ipso
iure
loss of his Nicaraguan nationality. 63.
The Commission believes that if Mr. Robelo wanted his original
nationality back, he should have followed the procedure established in the
1992 Nationality Law, to wit, a Nicaraguan who has lost his nationality
and wishes to reclaim it must meet the requirements contained in Article
20, which provides that: Nationals
who have changed their nationality shall reclaim their Nicaraguan
nationality by informing the Interior Ministry’s Immigration and
Nationality Directorate that they wish to do so and renouncing the
nationality they currently hold, record of which shall be taken in a deed
and certification of which shall be given to the individual involved. 64.
In addition, the Commission notes that the procedure described in
Article 20 was the process Mr. Robelo had to pursue in order to certify
his nationality status and obtain his citizen’s identification card.
However, although on March 31, 1998, the National Certification Commission
ordered him to present the certification from the Interior Ministry before
the card could be handed over, the petitioner did not take the necessary
steps for the following 16 months. Finally, on July 30, 1999, when the
petitioner requested his certificate of Nicaraguan nationality from the
General Directorate of Immigration and Nationality, the application was
refused and he was instructed that to obtain the certificate, he had to
reclaim his original nationality and renounce his current citizenship, in
accordance with Article 20 of the Nationality Law. 65.
The State noted that the certificate of nationality was refused
because: “despite having been born in Nicaragua, Mr. Robelo was an
Italian citizen by his own volition since 1976, which nationality has been
confirmed both by his request for a foreign citizen’s residence permit
in Nicaragua, and by the fact that he has retained his Italian nationality
and made no request to reclaim his original nationality.”[8] 66.
Indeed, from the evidence of the case documents, the Commission
notes that Mr. Robelo entered Nicaragua on January 7, 1990, using an
Italian passport (Nº 545752). Later, on June 6, 1993, he applied for a
Nicaraguan foreign resident’s card, so he could work for a year; this
card, Nº Q-29151, was issued to him on June 15 of that year. The
Commission also notes that between 1990 and 1995, Mr. Robelo entered and
left Nicaragua 60 times with his Italian passport and 18 times with a
Nicaraguan passport.[9] 67.
From the above it follows that not only did Mr. Robelo not seek to
reclaim his original nationality, but also that he showed a particular
interest in preserving his Italian citizenship and status as a foreign
resident in Nicaragua. 68.
The current Constitution of Nicaragua,[10] as partially amended on
January 19, 2000, by Law 330,[11]
allows dual nationality. Thus, Article 20 of the aforesaid law provides as
follows: No
national may be deprived of his nationality. Nicaraguan nationality shall
not be lost upon acquisition of another nationality. 69.
The Commission believes that in this case, the petitioner’s
submissions do not indicate sufficient grounds or evidence to indicate
that Mr. Robelo’s right to nationality has been violated. This case does
not involve the arbitrary or illegal denial of nationality, but rather the
petitioner’s acquisition of a new nationality and, consequently,
pursuant to the laws at the time in force, the loss of his original
nationality. In other words, Mr. Robelo lost his Nicaraguan nationality by
acquiring Italian nationality. V.
CONCLUSIONS 70.
The Commission concludes with regard to the alleged violations of
Mr. Alvaro Robelo’s political rights (Article 23), together with his
allegations of related violations of other rights—to personal integrity
(Article 5), due process (Article 8), compensation for miscarriages of
justice (Article 10), equality before the law (Article 24), and judicial
guarantees (Article 25)—that they are extemporaneous and thus
inadmissible, in accordance with the terms set in Article 46(1)(b) of the
American Convention.
71.
The Commission concludes, in connection with the alleged violations
of the right to nationality (Article 20), that the petitioner did not
pursue the procedure established by domestic law in order to comply with
the requirement of first exhausting domestic remedies set forth in Article
46(1)(a) of the American Convention. 72.
On the contrary, from its analysis of the documents submitted by
the parties, the Commission concludes that they do not describe duly
grounded facts that tend to establish violations by the Nicaraguan State
of the right to nationality (Article 20), pursuant to the terms set forth
in Article 47(b) of the American Convention on Human Rights. 73.
In light of the foregoing legal and factual considerations, THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS DECIDES: 1.
To declare this case inadmissible. 2.
To give notice of this decision to the parties. 3.
To publish this decision and to include it in its Annual Report to
the General Assembly of the OAS. Adopted by the Inter-American Commission on Human Rights on the 5th day of March, 2001. (Signed): Claudio Grossman, Chairman; Juan Méndez, First Vice-Chairman; Marta Altolaguirre, Second Vice-Chairman; Commissioners Hélio Bicudo, Robert K. Goldman, Peter Laurie, and Julio Prado Vallejo. [ Table of Contents | Previous | Next ] [1]
Article 49 of the Amparo Law provides that: “If,
within twenty-four hours of notification, the responsible authority or
official fails to comply with the judgment, and if the nature of the
case so permits, the Supreme Court of Justice shall call upon the
immediate superior of the responsible authority or official to require
that they enforce the judgment without delay and, if the authority or
official has no superior, said requirement shall be made directly to
them.” Article
50 of the Amparo Law stipulates that: “When
the judgment is not obeyed in spite of these instructions, the Supreme
Court of Justice shall inform the office of the President of the
Republic so that said office may order compliance therewith, and it
shall inform also the National Assembly; irrespective of this, the
office of the Attorney General may also be informed for the
appropriate actions to be taken. This shall also apply in cases in
which suspensions ordered by the Court of Appeals or the Supreme Court
of Justice are not obeyed.” [2]
The case documents at the IACHR contain a copy of the request for a
foreign citizen’s residence permit dated June 6, 1993. [3]
Inter-American Court of Human Rights, Series C: Decisions and
Judgments Nº 4, Velásquez Rodríguez Case; Judgment of July
29, 1988, paragraph 39. [4]
Nationality is related to the concept of the nation. A national of a
state is that individual who belongs to a particular group and shares
common factors—origin, history, customs, language, or awareness of a
common destiny—although he does not necessary belong to the State.
Nationality is a cultural and historical binding that unites the
individual with the Nation. There is an element of racial, political,
and institutional solidarity that constitutes the nation. It is the
status of a person born into or naturalized by a nation. [5]
The 1917 Convention on Citizenship was ratified on October 16, 1923,
enacted by Law Nº 2531 of October 18, 1923, and published in
Italy’s Official Gazette Nº 293 on December 14, 1923. [6]
The citizen is the subject of the political rights he enjoys,
exercising them within the government of a country. When sovereignty
is wielded by the people and the people give their consent and choose
their rulers, states have to decide who can enjoy that sovereignty.
This leads to the emergence of citizenship or of the concept of a
citizen of a self-governing state. Citizenship is the bond between the
individual and the legally established state, within which the
individual perpetuates his sovereignty as an entity of the state. [7]
Resident: A person who remains in a place with the idea of staying
there indefinitely, with his family, and in order to pursue his
professional activities or for retirement. The terms citizen and
resident can be distinguished as follows: the words citizen and
resident are not interchangeable when other political entities (e.g.,
cities) are the frame of reference, for citizen implies political
allegiance and a corresponding protection by the state, whereas
resident denotes merely that one lives in a certain place. [8]
See communication from the Nicaraguan State, dated October 7, 1999;
Resolution Nº 095-99. [9]
The case file with the IACHR contains a list of admissions to and
departures from Nicaragua. See communication from the Nicaraguan
Government, October 18, 1999, folder 3. [10]
Article 20 of Nicaragua’s 1987 Constitution provided that: “No
national may be deprived of his nationality, except when he
voluntarily acquires another; neither shall he lose his Nicaraguan
nationality when he acquires the nationality of another Central
American country or a dual nationality agreement applies.” [11] Law 330, published in the official journal on January 19, 2000. |