2.
Considerations of the Court
150. First, the Court notes that the allegation of the supposed violation of Article 22(9) of
the Convention was only brought up by the representatives. In this regard, the Court recalls
that the presumed victims, their next of kin, or their representatives may invoke rights other
than those included in the Merits Report, based on the facts presented in the latter (supra
para. 5).208
151. In addition, the Court reiterates that, from the evidence provided by the parties, this
case does not refer to an expulsion or rejection by immigration officials at an immigration
post at the border between Haiti and Dominican Republic. To the contrary, the events
occurred in Dominican territory, more than 50 kilometers from the border. From the
foregoing, the Court considers that the State did not prove that there were reasons to expel
the Haitian migrants from Dominican territory without a formal procedure that observed the
individual guarantees of each of these individuals. Consequently, the Court finds it necessary
to set out the following considerations on the prohibition of collective expulsions, and on the
guarantees of due process in deportation or expulsion proceedings.
a) Protection of migrants
152. The general obligation to respect and ensure rights gives rise to special obligations,
which can be determined based on the particular needs for protection of the subject of law,
because of his personal condition or because of the specific situation in which he finds
himself.209 In this regard, “undocumented migrants or those in an irregular situation have
been identified as a group in a vulnerable situation,210 because they are the most vulnerable
to potential or actual violations of their rights and, as a result of their situation, they suffer a
significant lack of protection of their rights.”211
153. Regarding the consequences of this situation of vulnerability, the Court has
considered that, “it should be noted that the human rights violations committed against
migrants often remain in impunity, owing, inter alia, to the existence of cultural factors that
justify these acts, the lack of access to power structures in a given society, and the legal and
factual obstacles that make real access to justice illusory.”212
154. The Court has considered that the foregoing “does not mean that no action can be
taken against migrants who do not comply with the laws of the State. However, when taking
the corresponding measures, States must respect their human rights and ensure the
exercise and enjoyment of these rights to all persons subject to their jurisdiction, without
any discrimination owing to their regular or irregular situation […].” This is even more
relevant if it is taken into account that, “under international law, certain limits to the
application of migratory policies have been developed, which impose strict respect for
208
Cf. Case of Five Pensioners v. Peru. Merits, reparations and costs. Judgment of February 28, 2003. Series
C No. 98, para. 55, and Case of Vélez Restrepo and family members v. Colombia. Preliminary objection, merits,
reparations and costs. Judgment of September 3, 2012 Series C No. 248, para. 47.
209
Cf. Case of the Pueblo Bello Massacres v. Colombia. Merits, reparations and costs. Judgment of January
31, 2006. Series C No. 140, para. 111, and Case of the Kichwa Indigenous People of Sarayaku v. Ecuador. Merits
and reparations. Judgment of June 27, 2012. Series C No. 245, para. 37.
210
Juridical Status and Rights of Undocumented Migrants. Advisory Opinion OC-18/03 of September 17,
2003. Series A No. 18, para. 114.
211
Cf. Case of Velez Loor. v. Panama, supra, para. 98.
212
Cf. Case of Velez Loor v. Panama, supra, para. 98. See also, Juridical Status and Rights of Undocumented
Migrants, supra, para. 112; United Nations, Economic and Social Council, Specific groups and individuals: migrant
workers. Human rights of migrants. Report of the Special Rapporteur, Gabriela Rodríguez Pizarro, submitted
pursuant to Commission on Human Rights Resolution 1999/44, E/CN.4/2000/82, 6 January 2000, para. 73.
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