B. Considerations of the Court
126. The Court notes that, in order to determine whether the State of Bolivia is responsible for
the violations of rights recognized in the Convention that have been alleged, the relevant facts of
this case occurred between February 19 and 24, 2001, in Bolivia, although other factual events
have been the object of litigation. During this lapse, the members of the Pacheco Tineo family,
Peruvian (and Chilean in the case of the youngest son), were in Bolivia, both as migrants in an
irregular situation, because they had entered the country without passing through the immigration
control posts, and as applicants for refugee status. Consequently, during this period, SENAMIG
authorities took administrative measures aimed at their deportation, and CONARE decided, in a
summary manner and without a hearing, that it would not consider their request for asylum, on
the basis that three years previously the family had requested voluntary repatriation to Peru.
127. In order to examine the State’s responsibility for the actions taken in both proceedings, the
Court will analyze the right to due process and to judicial protection, established in Articles 8 and
25 of the Convention, in relation to: (1) the minimum guarantees of due process in immigration
proceedings that may culminate with the expulsion or deportation of an alien; (2) the minimum
guarantees of due process concerning requests for recognition of refugee status141 (right to seek
and to be granted asylum and the principle of non-refoulement), and (3) the analysis of the
facts of this case under the preceding criteria and norms.
B.1.
The minimum guarantees of due process in immigration
proceedings that may culminate with the expulsion or deportation of an
alien and the principle of non-refoulement
128. Special duties arise from the general obligations to respect and to ensure rights and they
can be determined based on the particular needs of protection of the subject of law, owing
either to his personal situation or to the specific situation in which he finds himself. 142 In this
regard, “migrants who are undocumented or in an irregular situation have been identified as a
group in a situation of vulnerability,143 because they are very exposed to potential or real
violations of their rights and, owing to their situation, suffer a significant lack of protection for
their rights.”144 Evidently, this condition of vulnerability has “an ideological dimension and
occurs in a historical context that is different for each State, and is maintained by situations de
jure (inequalities between nationals and aliens in the laws) and de facto (structural
inequalities).”145
129. Based on the special needs for protection of migrant persons and groups, this Court
interprets and provides content to the rights that the Convention recognizes to them, in keeping
with the evolution of the international corpus juris applicable to the human rights of migrants. 146
141
The Court clarifies that, technically, “applicant for asylum” is equal in international law to “applicant for
recognition of refugee status,” so that these expressions are used interchangeably.
142
Cf. Case of the Pueblo Bello Massacre v. Colombia. Merits, reparations and costs. Judgment of January 31,
2006. Series C No. 140, para. 111, and Case of the Santo Domingo Massacre v. Colombia, para. 188.
143
Juridical Status and Rights of Undocumented Migrants. Advisory Opinion OC-18/03 of September 17,
2003. Series A No. 18, para. 114.
144
Cf. Case of Vélez Loor v. Panama. Preliminary objections, Merits, reparations and costs. Judgment of November
23, 2010 Series C No. 218, para. 98, and Case of Nadege Dorzema et al. v. Dominican Republic. Merits, reparations and
costs. Judgment of October 24, 2012. Series C No. 251, para. 152
145
Juridical Status and Rights of Undocumented Migrants, para. 112. Cf. Case of Nadege Dorzema et al. v.
Dominican Republic. Merits, reparations and costs. Judgment of October 24, 2012. Series C No. 251, para. 152.
146
Cf. Juridical Status and Rights of Undocumented Migrants. Advisory Opinion OC-18/03, para. 117, citing United
Nations, Report of the World Summit for Social Development held in Copenhagen, 6 to 12 March 1995, A/CONF.166/9,
of
19
April
1995,
Annex
II
Programme
of
Action,
paras.
63,
77
and
78,
available
at:
http://www.un.org/documents/ga/conf166/aconf166-9.htm; United Nations, Report of the International Conference on
41
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