of the child 269 and the right to equality before the law, 270 as well as to the obligations to
respect and ensure the rights without discrimination 271 and to adopt domestic legal
provisions. 272
226. Two types of arguments have been presented, and will be evaluated separately. The
first situation alleged is the destruction of identity documents of Dominicans, or the
authorities’ failure to take them into account at the time of the expulsions, and the second
is the failure to register persons of Haitian descent born in Dominican territory.
227. In addition, regarding the arguments relating to the obligation to adopt domestic
legal provisions, and the right to a name, the Court notes that the Commission did not
allege the violation of Articles 2 273 and 18 of the Convention, whereas the representatives
did. 274 In this regard, the Court reiterates that “the presumed victims or their
representatives may cite rights other than those included by the Commission, based on
the facts that the Commission has presented”; 275 hence, it is admissible to examine the
alleged violation of Article 2 of the Convention.
228. Lastly, regarding the necessary preliminary clarifications, it is pertinent to recall that
the Court has determined that it is not possible to consider that the birthplace of Bersson
Gelin, Jeanty Fils-Aimé, Nené Fils-Aimé, Diane Fils-Aimé, Antonio Fils-Aimé and Endry FilsAimé has been proved (supra paras. 86 and 87). This prevents the Court from analyzing
arguments about the nationality of these persons, or presumed violations of rights linked
to this. Consequently, the Court will not describe or analyze the arguments related to the
alleged violations, to the detriment of these persons, of the rights to nationality,
recognition of juridical personality, and name and, in relation to these three rights taken
as a whole, the right to identity; or the violation of the right to equal protection of the law
inasmuch as this was alleged in relation to the preceding rights. Similarly, it will not
269
Article 19 of the Convention establishes that: “Every minor child has the right to the measures of protection
required by his condition as a minor on the part of his family, society, and the State.”
270
Article 24 of the American Convention stipulates: “All persons are equal before the law. Consequently, they
are entitled, without discrimination, to equal protection of the law.”
271
Article 1(1) of the American Convention states: “The States Parties to this Convention undertake to respect
the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full
exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion,
political or other opinion, national or social origin, economic status, birth, or any other social condition.”
272
Article 2 of the Convention indicates: “Where the exercise of any of the rights or freedoms referred to in
Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance
with their constitutional processes and the provisions of this Convention, such legislative or other measures as may
be necessary to give effect to those rights or freedoms.”
273
Nevertheless in the Merits report, the Commission recommended that the State adopt measures “including
a review of domestic legislation on registering and granting nationality to persons of Haitian descent born in
Dominican territory, and the repeal of those provisions that directly or indirectly have a discriminatory impact
based on race or national origin, taking into account the principle of ius soli established by the State, the State
obligation to prevent statelessness, and applicable standards of international human rights law.”
274
Regarding Article 2, in their motions and arguments brief, when setting out arguments with regard to
Articles 3, 18, 20 and 24 of the Convention, the representatives mentioned and transcribed Article 2, but failed to
include arguments to justify its violation. However, it should be noted that, in answer to a question posed by the
Court during the public hearing, the representatives indicated that the alleged violation of Article 2 was “linked to
the violation of the right to nationality and the rights to juridical personality, of the family and to privacy,
because [they] consider[ed] that the violation ar[o]se from the undue application of article 11 of the Constitution
[…], that, as [they] explain[ed] in [their] arguments has considered that ‘in transit’ is equal to ‘an irregular
migratory situation���; hence [their] allegation relating to Article 2.” However, when including allegation
in their final written arguments, they indicated other norms (infra paras. 241 and 242)
275
Cf. Case of the “Five Pensioners” v. Peru, para. 155, and Case of Veliz Franco v. Guatemala, para. 132.
76
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