its notification, which is the time frame for appealing; in other words, without the decision
ordering the deportation being final. Hence, it can be stated that what took place was a
proceeding in absentia, expressly and totally incompatible with the Convention. Regarding the
right to judicial protection, they added that, even though an administrative appeal was possible,
the immigration authorities took away its effectiveness, because not only did they not notify the
Pacheco Tineo family of the decisions, but also the deportation decision was executed
immediately. Even if not every administrative decision on deportation must be re-examined by
the courts, judges must retain a minimum control of the legality and reasonableness of the
decisions of the Administration, in order to satisfy the obligation to guarantee the right to a
prompt and effective remedy established in Article 25 of the Convention.
A.3
Arguments of the State
122. The State argued that the Pacheco Tineo family had circumvented all the immigration
controls of several countries. The State indicated that the presumed victims had not complied
with the essential conditions to obtain refugee status. It stressed, in general, that the
considerations and grounds set out by the Commission and the representatives “do not explain
or justify the voluntary presence of the Pacheco family in Peru,” who were freely traveling in
Peru, taking steps that a normal person would take who has no fear of being in any danger to
his integrity or life, or that of his children. It considered that this is the crucial element that the
Court should examine, because, to the contrary, it would be “protecting abuse, fraud, lies, to
the benefit of the Pacheco Tineo family, [who] cannot obtain benefits, if they do not respect the
noble principles for which refugee status was conceived.”
123. The State argued that it had sufficient reason to apply the exclusion clause “1.F.b)” of
the 1951 Convention to the members of the Pacheco Tineo family, considering that “Mr. Pacheco
and Mrs. Tineo were being prosecuted for terrorism and sought by INTERPOL, at the request of
a Peruvian court.” It argued that people may request protection as refugees based on credible
reasons and not to prevent return to the immigration authorities of the country of origin. Thus,
even according to UNHCR directives, it is acceptable for abusive or fraudulent applications to be
processed by accelerated proceedings and, in this case, “they were seeking “asylum à la carte,”
in keeping with their interests.” It argued that it was only weeks after the facts that “the State
became aware” that the petitioners had refugee status in Chile, which prevented them from
applying for a new refugee status. According to the international laws on refugees, when a
person has to leave the country where he has asylum to return to the country of origin or where
his or her life was in danger, this must necessarily be done with a special passport granted by
the State or by UNHCR, for a limited time and on justification of the urgency of the trip,
requirements with which the Pacheco Tineo family did not comply.
124. Regarding the alleged violation of Article 25(1) of the Convention, the State argued that
the laws of Bolivia include guarantees concerning the remedy of amparo and habeas corpus. It
asserted that “Mr. Pacheco and his wife had every right and the necessary time to file these
remedies, which, of their own free will, they did not exhaust.”
125. In its final written arguments, the State asked the Court to examine “separately, and in
keeping with the specific content of each right, the alleged violations of the right to due process
of law recognized in Article 8 (if the argument of subsidiarity is not admitted), and the alleged
violation of the rights established in Article 22(7) and 22(8) of the American Convention. The
State asked the Court, if it did not consider the preceding arguments, to examine carefully
whether all the subparagraphs of Article 8(2) of the Convention should really be applicable to
requests for refugee status, and whether, at the time of the facts, a requirement of this nature
was binding for the State, since there were no binding instruments of international law or rulings
of the Court that required this specific conduct by the State.
40
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