considers that the events of this case occurred in a situation of factual impediment to ensure the
presumed victims real access to the right to appeal, in violation of the right to judicial
protection, recognized in Article 25 of the Convention, so that it is not pertinent to analyze the
scope of the remedies mentioned by the State.
B.4.
Time-barred allegation of violation of Article 22(9) of the Convention
196. Lastly, on this point it is pertinent to note that, in their final oral and written arguments,
the representatives alleged that the State had violated Article 22(9) of the Convention by having
expelled the Pacheco Tineo family “en masse.” Since this allegation was not made opportunely –
in other words, in their motions and arguments brief – in order to allow the other party and the
Court to make an adequate assessment,242 and since there is no supervening fact that supports
it, the Court finds it unnecessary to analyze this allegation of the representatives.
B.5.
Conclusion
197. The Court reiterates that the right to seek and to be granted asylum established in Article
22(7) of the American Convention does not ensure that refugee status must be granted to the
applicant, but does mean that his application must be processed with the due guarantees.
198. In this case, in relation to the denial of the asylum request, the State violated the rights
to judicial guarantees, to seek and to be granted asylum, the principle of non-refoulement, and
the right to judicial protection, recognized in Articles 8, 22(7), 22(8) and 25 of the American
Convention, in relation to Article 1(1) of this instrument, to the detriment of Rumaldo Juan
Pacheco Osco, Fredesvinda Tineo Godos, Frida Edith, Juana Guadalupe and Juan Ricardo, all
three with the surnames Pacheco Tineo.
199. In addition, in this case, the deportation of the members of the family to their country of
origin in violation of the minimum guarantees of due process, and in the knowledge that they
were able to have protection as refugees in a third country, is incompatible with the right to
seek and to be granted asylum and with the principle of non-refoulement, recognized in Article
22(7) and 22(8) of the American Convention. Furthermore, the State is responsible for the
violation of the right to be heard with due guarantees in an administrative proceeding that
culminated with the family’s expulsion, as well as the right to judicial protection, pursuant to
Articles 8(1) and 25 of the American Convention, in relation to Article 1(1) of this instrument, to
the detriment of Rumaldo Juan Pacheco Osco, Fredesvinda Tineo Godos, Frida Edith, Juana
Guadalupe and Juan Ricardo, all three with the surnames Pacheco Tineo.
VII-2.
RIGHT TO PERSONAL INTEGRITY
(ARTICLE 5 OF THE AMERICAN CONVENTION)
A. Arguments of the Commission and of the parties
200. The Commission indicated that it did not have sufficient information to conclude that the
State had violated the right to physical integrity of the members of the Pacheco Tineo family
during their transfer from La Paz to the border at El Desaguadero on February 24, 2001.
Nevertheless, it considered that the members of the Pacheco Tineo family had been expelled in
242
The logical and adequate functioning of the inter-American human rights system means that, as a “system,” the
parties must present their positions and information on the facts coherently and in accordance with the principles of
good faith and legal certainty, in order to allow the other parties and the inter-American organs to make an adequate
analysis of the case. Thus, once a contentious case has been submitted to the Court by the Commission, the legal claims
of the parties and their positions with regard to the facts must be provided on the first opportunity they have of
exercising their right of defense. Cf., mutatis mutandi, Case of the Santo Domingo Massacre v. Colombia, paras. 144,
146 and 148.
63
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