Margin of Appreciation and the Right to Nationality:
A Commentary on the decision by the Constitutional Court of the Dominican Republic 1
Noelia Rivera Guevara, LLM (Georgetown University)
[email protected]
Abstract
The Inter-American Court on Human Rights, in a 2005 decision, sheds light into the term “in transit”, one
of the excluding conditions to grant nationality to individuals born in the Dominican Republic. In it, the
Court indicates that the length of the stay of a person in a particular territory should be taken into
consideration when referring said term, and that, in that aspect, immigrants that have formed ties to
the country, for an indefinite period of time could not be deemed in transit, a term that refers to the
stay of a person in a country for a short period of time with the intention to continue to a different
destination.
On 23 September 2013, the Constitutional Court of the Dominican Republic issued an unprecedented
decision declaring that children of undocumented immigrants born in the country are not entitled to
Dominican nationality. It also extends its ruling to apply from 1929, requiring them to provide sufficient
proof that their ascendants were legal residents in order to claim they are entitled to it.
The Court reaches its conclusions, inter alia, by using the margin of appreciation to interpret the 1929
Constitution’s article pertaining nationality, establishing distinctions between “in transit” and tanseúnte
(passerby), broadening the application of the exception. The Court emphasizes, among others, the
necessity to confront issues resulting from poorly developed immigration regulations and institutional
1
Paper presented for Workshop 6: Constitutional challenges of immigration. IX World Congress of Constitutional
Law 2014 “Constitutional Challenges: Global and Local”, Oslo, 16 – 20 June, 2014, organized by The International
Association of Constitutional Law (IACL) and The Department of Public and International Law at the University of
Oslo. The opinions expressed in this article are personal to the author.
Page | 1
deficiencies, as well as the misapplication of former texts regarding nationality. Based on the margin of
appreciation, the Court decided to not follow the decision of the Inter-American Court.
This paper sets out to analyze whether the Court had the faculty to resort to the margin of appreciation
to deal with aspects related to the right to nationality, particularly in a decision intended to affect an
undetermined number of individuals, and if it rightly justified its use. In addition, entertaining the idea of
this possibility, whether the margin has been correctly used and the Court complied with the strict
requirements this method imposes when it comes to nationality.
A. GENERAL OVERVIEW OF DECISION TC/0168/13 2 OF THE CONSTITUTIONAL COURT OF THE
DOMINICAN REPUBLIC
The facts of the case that occupies our attention are straight forward. Juliana Deguis Pierre, the plaintiff
before the Dominican Constitutional Court (hereinafter ‘TC’ for its initials in Spanish), is the daughter of
parents of Haitian nationality who came to the Dominican Republic as agricultural field workers. Juliana
Deguis Pierre was born in the Dominican Republic in 1984 and has lived there her entire life. She has
never left the country and speaks only Spanish. At the time of her birth, her parents presented
themselves before the civil registry to ‘declare’ her, at which moment, following the laws and
Constitutional dispositions in force at the time, she was issued and granted a birth certificate by the Civil
Registrar recognizing her as Dominican.
In 2008, Ms. Deguis requested for the first time the issuance of her Cédula de Identidad y Electoral (the
Dominican identity and voting card, hereinafter ‘Dominican ID’) before the corresponding authorities,
i.e., the Central Electoral Board (Junta Central Electoral, hereinafter the ‘JCE’ for its initials in Spanish).
The JCE denied her request under the pretence that her last names ‘were Haitian’ and retained the
original of her birth certificate alleging that her birth was inscribed irregularly.3
In view of this and of the refusal of the JCE and Civil Registry to issue further original copies of her birth
certificate, Ms. Deguis presented an amparo claim before a first instance court, stating that the actions
2
Constitutional Court of the Dominican Republic, Decision No. TC/0084/13, June 4, 2013.
3
Constitutional Court of the Dominican Republic, Decision No. TC/0084/13, June 4, 2013, p. 3, 15.
Page | 2
of the JCE, i.e., the refusal to issue her Dominican ID, retaining the original of her birth certificate and
refusing to issue new copies of it, violated her fundamental rights. She requested the Court to protect
her fundamental rights by declaring that the actions of the JCE indeed represented a violation of her
rights, and by ordering the issuance of her documents.
Her claim was rejected based on the lack of presentation of an original copy of her birth certificate
before the court4 (which the defendant, JCE, refused to issue, one of the reasons they were in Court in
the first place). Ms. Deguis filed a challenge to the decision by means of a constitutional review action
before the TC. The latter decided to review whether Ms. Deguis complied with the conditions to obtain
the Dominican nationality, a matter outside of the scope of the constitutional review, as these are
matters of legality, not of compliance with the constitution; instead of reviewing the actions of the JCE
and whether these violated Ms. Deguis fundamental rights, as the action of amparo narrowly requests
the TC.
The TC concludes that Ms. Deguis is not entitled to the Dominican nationality and therefore should not
be issued the documents in question because her parents were ‘in transit’, as they were undocumented
immigrants. It also orders the further review of her documents to assess this. In addition, the TC orders
that the decision is applied to everyone born after 1929 under similar conditions, and that their
circumstances should be revised to decide if their birth certificates should be annulled or upheld,
application it ordered in an expansive and binding way that, in the words of the majority, “allows
extending the protection of fundamental rights to others outside of the process in analogous
situations”5.
To reach this conclusion, the TC looks into Article 11.1 of the Constitution in force at the time of birth of
Ms. Deguis (hereinafter the ‘1966 Constitution’), in which it is indicated that everyone born in the
Dominican Republic is entitled to the Dominican nationality (ius solis), with the exception of
descendants of diplomatic representatives residing in the country and those of persons in transit.
Concerning this latter group, the TC proceeds to the interpretation of the scope of the ‘in transit’ based
on the regulations6 to the immigration law enacted in 1939 7. According to said regulations, Ms. Deguis
4
Constitutional Court of the Dominican Republic, Decision No. TC/0084/13, June 4, 2013, p. 4.
5
Constitutional Court of the Dominican Republic, Decision No. TC/0084/13, June 4, 2013, p. 97. [Translation ours]
6
Said regulations were the Reglamento No. 279 sobre Aplicación de la Ley de Inmigración No. 95, G.O. No. 5313,
May 12, 1939.
Page | 3
parents fell under the category of ‘temporary workers’ brought into the country for agricultural
purposes and meant to be sent back when they were not needed by the hiring companies. These
‘temporary workers’ were granted a non-immigrant status. The Court decided to equate this nonimmigrant status to the 1966 Constitution’s ‘in transit’ status, rendering Ms. Deguis, under their
perception, as not entitled to the Dominican nationality.
Nevertheless, what is relevant for us and for the following paper is the considerations of the TC in
regards to the use of the margin of appreciation doctrine to justify its conclusion. In this regard, in 2005
the Inter-American Court of Human Rights (hereinafter ‘IACtHR’) issued its decision on the case of Yean
and Bosico v. Dominican Republic8. The case concerned two Dominican girls born in the Dominican
Republic from Haitian parents, who were unable to get registered as Dominican citizens and,
consequently, get copies of their birth certificates. This situation was caused mainly by the lack of clarity
and the constantly changing requirements when it came to the late declaration of children, that made it
exceedingly difficult for them to be fulfilled in reality and in a way that could be considered
discriminatory, affecting in particular descendants of Haitian nationals9. Among other aspects analyzed
and settled by the Court at the time, it analyzed Article 11.1 of the 1966 Constitution -in force at the
time- regarding attaining the Dominican nationality by ius solis and its exceptions, and most particularly,
the content and extent of the term ‘in transit’ as an exception in the Constitution, being this one of the
arguments of the Dominican Republic on the denial of their recognition as Dominican nationals.
On that matter, the IACtHR, based on the content of the Constitution, as well as the principles and
dispositions of the American Convention on Human Rights and relevant human rights treaties and
principles (which by recognition of the Dominican Republic constitute binding agreement and a
7
As Manuel Atienza points out in a blog post about the decision, from the 1930s to 1961 the Dominican Republic
was in a period of dictatorship under Rafael Leonidas Trujillo, known, among other things, for his despise towards
Haitians, so it should not come to a surprise to us that the referred immigration law of 1939 refers to Haitians
brought into the country as temporary workers in terms intended to make sure that, regardless of the period of
their stay or the lives developed in the country during that time, they would not be entitled to an immigrant status
or to stay or reside indefinitely in the country, but only to be granted temporary stay in order to be sent back by
the then Interior and Police State Secretariat the moment the hiring companies decided they were no longer
needed years or decades later. See blog Atienza, Manuel, Una Oportunidad Perdida, in La Mirada De Peitho,
November 6, 2013 at http://lamiradadepeitho.blogspot.com/2013/11/una-oportunidad-perdida-la-lecturahace.html
8
IACtHR, Case of the Girls Yean and Bosico v. Dominican Republic. Preliminary Objections, Merits, Reparations and
Costs. Judgment of September 8, 2005. Series C No. 130.
9
See IACtHR, Case of the Girls Yean and Bosico v. Dominican Republic. Preliminary Objections, Merits, Reparations
and Costs. Judgment of September 8, 2005. Series C No. 130, pars. 236-243.
Page | 4
constitutional mandates) 10, the IACtHR determined that the terms ‘in transit’, passerby (transeúnte) or
similar could not refer to the indefinite period of time of a stay in a given place, indicating that ‘the State
must respect a reasonable temporal limit and understand that a foreigner who develops connections in a
State cannot be equated to a person in transit’.11
Sometime after this decision was issued, the Dominican Republic modified the Constitution significantly,
including as an exception to ius solis the immigration status of the parents, which was finally approved
and set in force in January 2010 (hereinafter, ‘the 2010 Constitution’)12. It should be noted that the 2010
Constitution states expressly and clearly that the dispositions regarding nationality do not affect those
who, at the moment it entered into force, were already entitled to the Dominican nationality.13
B. MARGIN OF APPRECIATION IN INTERNATIONAL HUMAN RIGHTS LAW
As Andrew Legg simply and clearly indicates in his Preface, “[t]he margin of appreciation doctrine is
controversial and somewhat difficult to grasp”14 regardless of the term used to refer to it (be it margin
of appreciation, deference or self-restraint)15; it lies, however, “at the heart of many of the most
10
See Supreme Court of Justice of the Dominican Republic, Resolution 1920-2003, November 13, 2003; see also
Constitutional Procedures Act of the Dominican Republic, No. 137-11, G. O. 10622 of June 15, 2011, Art. 7.13; and
Constitutional Court of the Dominican Republic, Decision No. TC/0084/13, June 4, 2013.
11
IACtHR, Case of the Girls Yean and Bosico v. Dominican Republic. Preliminary Objections, Merits, Reparations and
Costs. Judgment of September 8, 2005. Series C No. 130, par. 157.
12
Article 18.3 of the 2010 Constitution reads as follows: “[Are Dominicans] [t]hose who are born in the national
territory, with the exception of the sons and daughters of foreigners members of diplomatic and consular
delegations, of foreigners in transit or residing in the Dominican territory illegally. Shall be considered in transit any
foreigner that the law defines as such” [Translation ours]. See Constitution of the Dominican Republic, G.O. No.
10561, January 26, 2010, Art. 18.3.
13
Constitution of the Dominican Republic, G.O. No. 10561, January 26, 2010, Art. 18.2. “[Are Dominicans] [t]hose
who enjoy the Dominican nationality before the enforcement of this Constitution.” [Translation ours]
On a similar note, in par. 243 of Yean and Bosico, the Court indicates that the State recognized that, although the
birth certificates of both girls had been issued with certain discrepancies with the legal dispositions considered in
the case –like in the case before us, their certificates showed the ‘ficha’ number instead of the Dominican ID of the
parents. In that regard, the Dominican Republic assured that, since the Certificates had been issued by the
competent authority, had a ‘permanent nature’ and could not be revoked.
14
Legg, Andrew. The Margin of Appreciation in International Human Rights Law: Deference and Proportionality,
Oxford: Oxford University Press, 2012, p. vi.
15
See Brauch, Jeffrey A. The Margin of Appreciation and the Jurisprudence of the European Court of Human Rights:
Threat to the Rule of Law (2005). Columbia Journal of European Law, Vol. 11, 2005, p. 116.
Page | 5
important international Human Rights cases”.16 This proves to be true not only in the international
sphere in cases brought before international or regional courts, but also in an everyday-increasing
number of cases brought before national courts regarding government action and implementation of
policies.
We should begin then by defining what the margin of appreciation doctrine is. In this regard, the margin
of appreciation is a doctrine used by the European Court on Human Rights (ECtHR) and later adopted to
a certain and exceptional extent by the IACtHR17, which “refers to the amount of discretion” the ECtHR
and the IACtHR respectively “give national authorities in fulfilling their obligations” -in the case of
regional courts- under their respective conventions.18
As a way to understand the margin of appreciation, Aharon Barack points out that the doctrine provides
for certain weight to be accorded to the opinion of the national actors, to decide on matters on which
there is no consensus or no clear definition.19 As defined by Howard Charles Yourow, referring to the
doctrine at the European level, the margin of appreciation could be seen as “the latitude of deference or
error which the Strasbourg organs will allow to national legislative, executive, administrative and judicial
bodies before it is prepared to declare a national derogation from the Convention, or restriction or
limitation upon a right guaranteed by the Convention, to constitute a violation of one of the
Convention’s substantive guarantees. It has been defined as the line at which international supervision
16
Legg, Andrew. The Margin of Appreciation in International Human Rights Law: Deference and Proportionality,
Oxford: Oxford University Press, 2012, p. vi.
17
The way this concept has been approached by the IACtHR differs, however, from the way the ECtHR has used it
so far. In IACtHR, Case of Atala Riffo and daughters v. Chile. Merits, Reparations and Costs. Judgment of February
24, 2012 Series C No. 239, for example, the Court rejected the lack of consensus as an element for the use of
margin of appreciation, contrary to the standard of the ECtHR. See Barbosa Delgado, Francisco R. Los Límites a la
Doctrina del Margen de Apreciación en el Tribunal Europeo y la Corte Interamericana de Derechos Humanos:
Intervención Judicial en Torno a Ciertos Derechos de las Minorías Étnicas y Culturales. In Revista Derecho del Estado
No. 26, January-June 2011, pp. 107-135, p. 109 and 110. See also IACtHR, Proposed Amendments of the
Naturalization Provisions of the Constitution of Costa Rica. Advisory Opinion OC-4/84 of January 19, 1984. Series A
No. 4; and IACtHR. Case of Herrera Ulloa v. Costa Rica. Preliminary Objections, Merits, Reparations and Costs.
Judgment of July 2, 2004. Series C No. 107.
18
See Brauch, Jeffrey A. The Margin of Appreciation and the Jurisprudence of the European Court of Human Rights:
Threat to the Rule of Law (2005). Columbia Journal of European Law, Vol. 11, 2005, p. 115; Barbosa Delgado,
Francisco R. Los Límites a la Doctrina del Margen de Apreciación en el Tribunal Europeo y la Corte Interamericana
de Derechos Humanos: Intervención Judicial en Torno a Ciertos Derechos de las Minorías Étnicas y Culturales. In
Revista Derecho del Estado No. 26, January-June 2011, pp. 107-135, p. 108.
19
See Barack, Aharon. Proportionality: Constitutional Rights and Their Limitations, Cambridge: Cambridge
University Press, 2012, p. 418.
Page | 6
should give way to a State Party’s discretion in enacting or enforcing its laws”.20 Although generally a
comprehensive description, this paper does not agree with the perception of the doctrine as granting
‘latitude for error’, but more as the last part describes as allowing discretion to the state agencies to
some extent.
As indicated by Aharon Barack, the margin of appreciation deals with factual and normative data
relevant to the international law treaties.21 In our case, this means the American Convention on Human
Rights (ACHR), and by extension, its application by the IACtHR by means of its opinions and its decisions.
The main aspect behind the doctrine of the margin of appreciation can be said to be the deference or
latitude for discretion granted by the international judge to states to provide limitations to human rights
based on the thought that national authorities might be, in principle, in a better position to decide on
such a limitation in the event of an emergency or pressing necessity.22
Nevertheless, it is clear that both the ECtHR and the IACtHR see the margin of appreciation in a narrow
perspective when dealing with human rights aspects.23 The margin of appreciation allows certain
deference from international and regional courts to state actors when it comes to circumstances where
20
See Yourow, Howard Charles. The Margin of Appreciation Doctrine in the Dynamics of European Human Rights
Jurisprudence, 13 (1996), cited by Brauch, Jeffrey A. The Margin of Appreciation and the Jurisprudence of the
European Court of Human Rights: Threat to the Rule of Law (2005). Columbia Journal of European Law, Vol. 11,
2005, p. 116.
21
See Barack, Aharon. Proportionality: Constitutional Rights and Their Limitations, Cambridge: Cambridge
University Press, 2012, p. 420. See also Rivers, J. Proportionality and Variable Intensity of Review, 65 Cambridge
L.J.174, 177, 2006, at 75, cited by Barack, Aharon, p. 420.
22
See Kratochvil, Jan. The Inflation of the Margin of Appreciation by the European Court of Human Rights,
Netherlands Quarterly of Human Rights, Vol. 29/3 (2011), Netherlands: Netherlands Institute of Human Rights
(SIM), p. 325ss; see also Yourow, Howard Charles. The Margin of Appreciation Doctrine in the Dynamics of
European Human Rights Jurisprudence, The Hague: Kluwer, 1996, p. 13; Arai-Takahashi, Yutaka. The Margin of
Appreciation Doctrine and the Principle of Proportionality in the Jurisprudence of ECHR, Oxford: Intersentia,
Antwerpen, 2002, p. 2; Benvesisti, Eval. Margin of Appreciation, Consensus, and Universal Standards, New York
University Journal of International Law and Politics, Vol. 31, No. 4, 1999, pp. 843-854, at p. 843; Greer, Steven. The
Margin of Appreciation: Interpretation and Discretion under the European Convention on Human Rights,
Strasbourg: Council of Europe Publishing, 2000, p. 5; Merrills, J. G. The Development of International Law by the
European Court of Human Rights, Manchester: Manchester University Press, 1993, p. 151, cited by Kratochvil.
23
See Barbosa Delgado, Francisco R. Los Límites a la Doctrina del Margen de Apreciación en el Tribunal Europeo y
la Corte Interamericana de Derechos Humanos: Intervención Judicial en Torno a Ciertos Derechos de las Minorías
Étnicas y Culturales. In Revista Derecho del Estado No. 26, January-June 2011, pp. 107-135, p. 110
Page | 7
there is no consensus among states, but not without limitation, which the courts themselves have
formulated in order to make sure that this doctrine is not abused by states.24
In that sense, the ECtHR has indicated that the margin of appreciation allows for restrictions to some
extent to human rights, so long as these are ‘necessary’, meaning that there is a compelling social need.
The ECtHR has further explained that ‘useful’, ‘reasonable’ or ‘timely’ are not enough of a criterion for a
restriction to qualify as ‘necessary’. 25 Furthermore, Francisco Barbosa explains that this should be seen
as a determination that ‘necessity’ is not left to the perception of the State and that its notion is to be
understood as the State not having any other choice of lesser gravity regarding the intervened right.26
In view of the above, it is possible to affirm that, in order for a State to be able to legitimately resort to
the margin of appreciation, it must be able to clearly justify the necessity in question and offer a prior
motivation to use this kind of discretion. Consequently, proceeding to its use without giving sufficient
and acceptable justification as to the necessity to do so in the terms explained above would result in the
judges incurring in arbitrariness.
C. MARGIN OF APPRECIATION AND THE DOMINICAN CONSTITUTIONAL COURT
As we have indicated previously, the TC fails to address the matters presented in the constitutional
revision claim by Ms. Deguis and goes instead into questioning the conditions under which she was
issued a Dominican birth certificate and the exceptions to Article 11 of 1966 Constitution. We are of the
opinion that, since the matter of these exceptions and their scope had reached the IACtHR at a prior
occasion on the case of Yean and Bosico in 2005, and said Court had pronounced itself on this regard
and condemned the Dominican Republic for the violation of several rights -including right to nationality
for similar circumstances of refusal to issue birth certificates-, and being this decision binding to the
24
See Barbosa Delgado, Francisco R. Los Límites a la Doctrina del Margen de Apreciación en el Tribunal Europeo y
la Corte Interamericana de Derechos Humanos: Intervención Judicial en Torno a Ciertos Derechos de las Minorías
Étnicas y Culturales. In Revista Derecho del Estado No. 26, January-June 2011, pp. 107-135, p. 109 and 112.
25
ECtHR, Handyside v. UK, Decision of December 7, 1976, par. 48; Sunday Times v. UK, Decision of April 29, 1979,
par. 58.
26
See Barbosa Delgado, Francisco R. Los Límites a la Doctrina del Margen de Apreciación en el Tribunal Europeo y
la Corte Interamericana de Derechos Humanos: Intervención Judicial en Torno a Ciertos Derechos de las Minorías
Étnicas y Culturales. In Revista Derecho del Estado No. 26, January-June 2011, pp. 107-135, p. 124
Page | 8
Dominican Republic as a signatory of the ACDH as well as being under the accepted jurisdiction of the
IACtHR27, the TC was, in principle, unable to act in a way contrary to the IACtHR’s previous findings
without proper and reasonable justification, since these represent binding precedents to the Dominican
Republic. The TC therefore saw it fit to rely on the margin of appreciation as a means to be able to offer
a different result on a matter already interpreted. 28
Nonetheless, as we have pointed out above, the doctrine of the margin of appreciation is of narrow and
limited application, and its use requires at all times to be reasonably justified in the necessity of the
action in question as the only possible and less damaging choice. 29 In that same regard, the limitation
imposed or the action taken must be restricted only to the necessary means to address the alleged
necessity, without disregarding or violating the fundamental rights of those affected.30 This, however,
has not been the case in the decision at hand.
It might be reasonable to stop here for a moment and indicate to those not thoroughly familiar with the
Dominican legal framework the binding character of the decisions of the IACtHR for the Dominican
Republic and the American Convention on Human Rights, having ratified the ACHR and recognized the
contentious jurisdiction of the IACtHR in January 21st, 1978 and March 25th, 1999, respectively. In this
27
See IACtHR, Case of the Girls Yean and Bosico v. Dominican Republic. Preliminary Objections, Merits, Reparations
and Costs. Judgment of September 8, 2005. Series C No. 130, par. 2.
The text of the recognition of the contentious jurisdiction of the IACtHR reads as follows: “The Government of the
Dominican Republic, by way of this instrument, declares that it recognizes as binding, as a matter of law, and not
requiring special agreement, the jurisdiction of the Inter-American Court of Human Rights on all matters relating to
the interpretation or application of the American Convention on Human Rights, of November 22, 1969”. Text can
be found at http://www.cidh.oas.org/basicos/english/Basic4.Amer.Conv.Ratif.htm
28
On Decision No. TC/0168/13, regarding the use and application in this particular case of the margin of
appreciation, the TC expresses the following: “The Constitutional Court considers that in the case before us it is
feasible to apply the thesis of the ‘margin of appreciation’, in respect to the determination of the significance and
reach of the notion of foreigners in transit, since the matter of nationality results in a subject particularly sensible
to all sectors of Dominican society. In this order, [it] understands, such as has been exposed in previous pages, that
the foreigners lacking a residency authorization in the country must be assimilated to the category of foreigners in
transit, that, as has been explained before, is a notion of the Dominican constitutional Law itself and the migration
Law, by virtue of which the children of that category of people do not acquire the Dominican nationality, even if
they have been born in the national territory.[…]” [Translation ours] Constitutional Court of the Dominican
Republic, Decision No. TC/0168/13, of September 23, 2013, p. 74.
29
See Barbosa Delgado, Francisco R. Los Límites a la Doctrina del Margen de Apreciación en el Tribunal Europeo y
la Corte Interamericana de Derechos Humanos: Intervención Judicial en Torno a Ciertos Derechos de las Minorías
Étnicas y Culturales. In Revista Derecho del Estado No. 26, January-June 2011, pp. 107-135, p. 124
30
See Barbosa Delgado, Francisco R. Los Límites a la Doctrina del Margen de Apreciación en el Tribunal Europeo y
la Corte Interamericana de Derechos Humanos: Intervención Judicial en Torno a Ciertos Derechos de las Minorías
Étnicas y Culturales. In Revista Derecho del Estado No. 26, January-June 2011, pp. 107-135
Page | 9
regard, the 2010 Constitution indicates in its Article 74.3 that the treaties, pacts and conventions on
Human Rights subscribed and ratified by the Dominican Republic have Constitutional rank and are to be
applied directly and immediately by courts and authorities of the State. This disposition had its
counterpart in Article 3 of the 1966 Constitution, in which it was stated that the country recognizes and
applies general and American International Law norms that it has adopted. Furthermore, in 2003 the
Supreme Court of Justice recognized the Bloc de Costitutionalité (Block of Constitutionality or Bloque de
Constitucionalidad), by means of which the Human Rights norms, conventions and treaties ratified by
the Dominican Republic, as well as the decisions pertaining Human Rights from the IACtHR are binding
to the Dominican Republic and enjoy the same or higher status than the Constitution. 31
Moreover, this Bloc de Costitutionalité is recognized by the Constitutional Procedures Act of the
Dominican Republic, in which it is stated that the Constitution is infringed also when there is a
contradiction with the values, principles and rules of international human rights treaties subscribed and
ratified by the Dominican Republic, or when they result in rendering the principles and mandates in
them less effective.32 It continues saying that “the values, principles and rules contained in the
Constitution and in the international human rights treaties adopted by the public powers of the
Dominican Republic, jointly with the fundamental rights and warranties of the same nature to those
expressly contained in those, conform the block of constitutionality that serves as parameter to the
constitutional control and to which the formal and material validity of infra-constitutional norms is
subjected to.”
33
In addition, it expressly indicates that the interpretations adopted or made by
international courts in matters of human rights constitute binding precedents to public powers and all
State organs (emphasis ours). 34
Considering the above, it is clear that, having the IACtHR addressed the subject of the consideration of
determining whether a person can be considered ‘in transit’ under the 1966 Constitution and the
Migration Act of 1939 in view of his/her particular circumstances, 35 rendering this a decided matter and
31
See Supreme Court of Justice of the Dominican Republic, Resolution 1920-2003, November 13, 2003; see also
Constitutional Procedures Act of the Dominican Republic, No. 137-11, G. O. 10622 of June 15, 2011, Art. 7.13; and
Constitutional Court of the Dominican Republic, Decision No. TC/0084/13, June 4, 2013.
32
Constitutional Procedures Act of the Dominican Republic, No. 137-11, G. O. 10622 of June 15, 2011, Art. 6.
33
Constitutional Procedures Act of the Dominican Republic, No. 137-11, G. O. 10622 of June 15, 2011, Art. 7.10.
34
Constitutional Procedures Act of the Dominican Republic, No. 137-11, G. O. 10622 of June 15, 2011, Art. 7.13.
35
It should be noted that in its decision, the IACtHR indicates that it is not possible to consider that a person is in
transit, regardless of the term or classification used, for an indefinite period of time. In this regard, the Court
Page | 10
not an issue under discussion that merited the application or resort to the margin of appreciation in this
case, being this a decision binding to the State and its authorities. In this regard, the TC had a
constitutional and legal obligation to abide by the considerations and interpretations of the IACtHR and
follow the parameters established by said Court regarding the impossibility of equating a person as in
transit, whatever the terminology used, for an indefinite period of time while developing connections in
and to the State -as was the case of Ms. Deguis’ parents-, based on the Constitutional hierarchy said
Convention and decisions enjoy by mandate of our Constitution and of the organic law of the TC itself.
As we could see, the purpose and end of the margin of appreciation is to grant the State certain latitude
when it comes to questions that are not solved or settled, or where interpretation might be possible
given particular circumstances of the state in question. In that order of ideas, the matter at hand and
the issue the TC was intending to address (although not the one requested by the plaintiff) was a matter
that, in the view of the doctrine of the margin of appreciation, was not undecided or warranted
deference, but was instead addressed in a decision binding to and regarding the Dominican Republic
itself. Consequently, it was not an issue that left unanswered aspects or that was taken in consideration
of differences with another State party for whom this was decided for; it is instead a constitutionallyranking interpretation for the Dominican Republic and, as such, it is to be applied and respected by the
Dominican Republic and all State organs, including both the TC and the JCE.
On another hand, and entertaining the hypothetical idea of the TC having the faculty of resorting to the
margin of appreciation doctrine in this matter, we would still need to analyse if the actions of the Court
satisfy the principles of interpretation that it should follow when it comes to fundamental rights. In this
regard, the most notable principle we should look into is the principle of the most favourable
interpretation. In that order of ideas, and complementing the justification of necessity that the State is
obliged to provide, it must be noted that the measures taken by the TC in this decision are in
contradiction with the principle of the most favourable application of the law and rights when it comes
to human rights36, as the solution it comes up with is the denial of the nationality to the plaintiff using
indicates that, in order to consider that someone is in transit or any other similar condition, “the State must
respect a reasonable temporal limit and understand that a foreigner who develops connections in a State cannot be
equated to a person in transit”. IACtHR, Case of the Girls Yean and Bosico v. Dominican Republic. Preliminary
Objections, Merits, Reparations and Costs. Judgment of September 8, 2005. Series C No. 130, par. 157.
36
The principle of most favorable interpretation is enshrined in the national normative of the Dominican Republic
both in the current Constitution, as well as in the Constitutional Procedures Act for the Constitutional Court. See
Constitution of the Dominican Republic, G.O. 10561, of January 26, 2010, Art. 74.4; and, Constitutional Procedures
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arguments that contradict a binding decision of the IACtHR, and orders the application of the same
measures to every person in similar circumstances, in prejudice of the fundamental rights if an
undetermined number of persons, members of a minority group, revoking their nationality and
rendering them stateless and in a state of further vulnerability and unprotected 37 instead of affirming
ways to ensure their protection and opt for a more favourable interpretation of the rights in question.
We find ourselves before the judgement of the TC in which it justifies its decisions on the need to
address and solve institutional and bureaucratic deficiencies of the Civil Registry which have been
causing irregularities in the issuance of identity documents, resulting ‘in a grave threat over the future of
the country’38. Regarding this, we refer to the dissident vote of Justice Katia Miguelina Jimenez, who
indicates rightly that Ms. Deguis, as those in her same position, has been registered as Dominican by a
Civil Registrar officer in accordance to the Constitution and legal norms in force at the moment. 39 Setting
aside the fact that the ‘threat’ the majority of the Court refers to through the decision is a subject of
irregular immigration and lack of correct policies and structure by the authorities, it is unreasonable to
assimilate that the most favourable interpretation and solution that the majority was able to come up
with to address the so-called irregularities committed by the Civil Registry officials was a measure that
would result in the revocation of the nationality of generations of Dominican citizens, while resorting to
an interpretation that seems to be the least favourable to the holder of the right and the protection of
fundamental warranties.
In this regard, in its decision the TC orders that a thorough assessment of the regularity of birth
certificates in these conditions is carried out from 1929 and onwards, based on the argument that the
disposition if exception of descendants of persons in transit of the 1966 Constitution mirrors a
Act of the Dominican Republic, No. 137-11, G. O. 10622 of June 15, 2011, Article 7.5. This latter states: “The
Constitution and fundamental rights shall be interpreted and applied in a way that its maximum affectivity is
optimized in order to favor the holder of the fundamental right. When there is conflict between the norms
comprising the block of constitutionality, the one most favorable to the holder of the infringed right shall prevail. If
a norm lower than the Constitution is more favorable to the holder of the fundamental right than the norms in the
block of constitutionality, the first shall be applied in a complementary manner, in order to ensure the maximum
level of protection. No disposition of the present law may be interpreted in a way limiting or suppressing the
enjoyment and exercise of fundamental rights and warranties”. [Translation ours].
37
See Constitutional Court of the Dominican Republic, Dissident Vote of Justice Katia Miguelina Jimenez to Decision
No. TC/0168/13, of September 23, 2013.
38
See Constitutional Court of the Dominican Republic, Decision No. TC/0168/13, of September 23, 2013, p. 88-91.
39
See Constitutional Court of the Dominican Republic, Dissident Vote of Justice Katia Miguelina Jimenez to Decision
No. TC/0168/13, of September 23, 2013, p. 124 and 126.
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disposition of the Constitution enacted in 1929. 40 By doing this, the decision not only affects the
fundamental rights of Ms. Deguis as claimant in the process, but also of anyone else that might find
themselves in similar circumstances, even though they have not been part of this process, and has done
so in a retroactive manner, based on a new interpretation that was not should not be able to be applied
at a time it had not been determined. 41
Nonetheless, the issue at hand is that, based on the doctrine of the margin of appreciation, the TC
issued a decision that seems to contradict the basis of the doctrine, as well as principles of
interpretation for the protection of human rights. In the end, we are able to argue that there was no
room for the TC to use the margin of appreciation, as (i) it was not presented with a matter that
warranted deference as an applicable interpretation had already been provided on this matter by the
IACtHR for the particular aspect the TC refers to in its decision; and (ii) the TC was unable to offer an
acceptable justification that demonstrated a pressing and compelling necessity to infringe human rights
in the manner and extent it did. In addition (iii) even if we considered the hypothetical of the TC having
room for the application of the margin of appreciation and being able to justify it, its decisions are in
contradiction with the principles of interpretation of human rights, particularly the most favourable
interpretation, in disregard of both Constitutional and infra-constitutional norms.
As a result, the challenge ahead of us seems to be more demanding than before. We are called as a
society to find means to remedy the situation that is currently faced by Dominican citizens of Haitian
ascendance that have found themselves before the possibility of losing their nationality, which becomes
difficult as the decision comes from the highest instance court in the country and the one with the last
say on this. As for the revision of the TC’s decision by the IACtHR in the future, particularly on the matter
of the TC’s use of the margin of appreciation to reach its decision, we should keep in mind that what this
judge-made doctrine intends, in general, is to allow the State to incur into restrictions to human rights
when there is a real necessity to do so.42
Nevertheless, a big condition comes with it, as the ECtHR clearly points out in Handyside: Contracting
States do not have by means of this margin ‘an unlimited power of appreciation’. It continues by
40
See Constitutional Court of the Dominican Republic, Decision No. TC/0168/13, of September 23, 2013, p. 99.
41
See Constitutional Court of the Dominican Republic, Dissident Vote of Justice Katia Miguelina Jimenez to Decision
No. TC/0168/13, of September 23, 2013, p. 144.
42
Cfr. ECtHR, Handyside v. the United Kingdom, 7 December 1976, Series A no. 24., par. 48
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indicating that –in the particular case of Handyside referring to Freedom of Expression- the ECtHR, and
in our case the IACtHR, in its role of ensuring compliance by State parties with their obligations under
the Convention, ‘is empowered to give the final ruling on whether a ‘restriction’ or ‘penalty’ is
reconcilable with [the right in question] as protected by [the Convention]”, being the margin of
appreciation a discretion that is to be supervised, and this includes the decisions of the national courts. 43
This said, we should expect the IACtHR to take this into consideration as well in its review.
43
Cfr. ECtHR, Handyside v. the United Kingdom, 7 December 1976, Series A no. 24, par. 49. See also Spielmann,
Dean. Allowing the Right Margin the European Court of Human Rights and the National Margin of Appreciation
Doctrine: Waiver or Subsidiarity of European Review?, in CELS Working Paper Series, University of Cambridge
Faculty of Law, February 2012, p.8 citing the decision.
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