respectively, of these Constitutions established in very similar wording that the following
were Dominicans: “[e]veryone born in the territory of the Republic, with the exception of
the legitimate children of aliens resident in the country as part of a diplomatic mission or
of persons in transit” (1955 Constitution), and that “Dominicans are: 1. [e]veryone born
in the territory of the Republic, with the exception of the legitimate children of aliens
resident in the country as part of a diplomatic mission or of persons in transit” (1994
Constitution). 330
281. With regard to the interpretation of the constitutional exception relating to the
children of “aliens in transit,” the Court underscores that it has already noted that a
judgment of the Civil Chamber of the Court of Appeal of the National District of October
16, 2003, established that “the illegal status of the alien cannot be compared to the
concept of ‘in transit,’ because they are different notions.” 331
282. Meanwhile, article 36(10) of General Migration Law No. 285-04, published on August
27, 2004 (supra para. 177), states: “[n]on-residents are considered persons in transit for
the purposes of the application of article 11 of the Constitution.”
283. The Supreme Court of Justice, “acting as Constitutional Court,” in a judgment of
December 14, 2005, established that:
When article 11(1) of the [1994] Constitution excludes the legitimate children of foreign
diplomats resident in the country and aliens who are in transit from acquiring Dominican
nationality by ius soli, this means that these persons, those in transmit, have in some way been
authorized to enter the country and remain there for a certain time; that if by mandate of the
Constitution, in these circumstances which are evidently legitimate, an alien gives birth in
national territory, her child is not born a Dominican, all the more so, the child of a foreign mother
who, at the moment of giving birth is in an irregular situation and, therefore, cannot justify her
entry into and permanence in the Dominican Republic cannot be a Dominican. 332
resident in national territory [and for whom] no entries into and departures from the country are recorded by the
authorized immigration control posts” “have never been domiciled in national territory” (Council of State of
Colombia, File No. 1653, of June 30, 2005; Constitutional Court of Colombia, Judgment T-1060/10, of December
16, 2010).
330
Both texts are also similar to the wording of the 1966 Constitution, article 11(1) of which indicates that:
“[t]he following are Dominican: 1. [a]ll those born in the territory of the Republic, with the exception of the
legitimate children of aliens who are diplomats resident in the country or those who are in the country in transit.”
Also, article 10(c) of Immigration Law No. 95 of April 14, 1939, in force at the time of the facts, established that:
“Those born in the Dominican Republic are considered nationals of the Dominican Republic, whether or not they
are nationals of other countries.” In addition, the State provided as evidence the Civil Code of August 2007,
article 9 of which establishes that: “[t]he following are Dominicans: First – all those who were born or will be
born in the territory of the Republic, whatever the nationality of their parents. For the effects of this provision,
the legitimate children of the aliens who reside in it while representing or in the service of their own country shall
not be considered as born in the territory of the Republic.”
331
Cf. Case of the Yean and Bosico Girls v. Dominican Republic, para. 154. The citation corresponds to
judgment No. 453 of the Civil Chamber of the Court of Appeal of the National District of October 16, 2003.
332
Supreme Court of Justice, acting as Constitutional Court, Judgment of December 14, 2005. Expert witness
Gómez Pérez, when testifying during the public hearing, confirmed that “in 2005, […] the Supreme Court of
Justice […] acting as Constitutional Court, interpreted that the concept of ‘transit,’ established in the Constitution
refers to the attribution of Dominican nationality to those persons, children of aliens, whose situation in the
Dominican Republic is regular […] and that, to the contrary, […] the children of aliens in transit in the Dominican
Republic, do not qualify for Dominican nationality” (expert opinion provided by Cecilio Gómez Pérez before the
Court during the public hearing). Meanwhile, expert witness Rodríguez Gómez indicated that “[t]he main effect of
the judgment [of December 14, 2005,] of the Supreme Court of Justice is that, based on it, the Central Electoral
Board began to apply administratively a policy of denationalization of an indeterminate number of Dominicans
based on the position that they could not prove that, at the time of their birth, the situation of their parents was
legal.” He linked this to the issue and application of Circular 017 of the President of the Central Electoral Board
(supra para. 177) (cf. Expert opinion of Cristóbal Rodríguez Gómez provided by affidavit).
92
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