In Dialogue with Costa Rica, Experts of the Committee on Enforced Disappearances Commend the State’s Commitment to Human Rights Instruments, Ask About Criminalisation of Enforced Disappearance and Treatment of Migrants
The Committee on Enforced Disappearances this morning concluded its consideration of the initial periodic report of Costa Rica on how it implements the provisions of the International Convention on the Protection of All Persons from Enforced Disappearance, with Committee Experts commending the State for its commitment to human rights instruments, and asking questions about criminalisation of enforced disappearance and treatment of migrants.
Horacio Ravenna, Committee Expert and Country Co-Rapporteur, said the Committee was struck by Costa Rica’s strong commitment to regional and international human rights instruments, having ratified the Inter-American Convention on Forced Disappearance of Persons and almost all United Nations human rights treaties.
Juan José Lopez Ortega, Committee Expert and Country Co-Rapporteur, asked the delegation to clarify the State party’s position on criminalising enforced disappearance as an autonomous offence. There had been work on a draft bill that addressed enforced disappearance. Could the draft be shared with the Committee so that the Committee could offer recommendations?
Mr. Lopez Ortega further noted civil society reports of disappeared migrants. Could the State party expand on the challenges arising from migration issues? In this regard, Mr. Ravenna asked what procedure was in place when dealing with a person who was undocumented or had not entered the country legally.
In his opening statement, Exleine Sanchez Torres, Vice Minister for Justice and head of the delegation, said the State party was aware that its work for the protection and promotion of the human rights of all Costa Ricans was not sufficient to deal with enforced disappearance. The challenge was to expressly address it in domestic legislation, so there was no undue interpretation. The State party was committed to this, and dialogue was ongoing.
The delegation added that the legislature was committed to defining enforced disappearance as a crime. A draft bill had been introduced in Costa Rica in 2017 that addressed the implementation of the Convention and the Rome Statute. The Human Rights Commission was working tirelessly to ensure that the bill was included within the legal framework. The State party would share the draft bill with the Committee, and welcomed the Committee’s recommendations regarding it.
Answering on migration, the delegation said the police consulted an Interpol database to identify vulnerable persons and victims of international crimes. The police placed unaccompanied minors in the care of the national institution for childhood. The State had been working on establishing a centre for migrants on the southern border of the country to support vulnerable groups crossing into the country. If vulnerable persons had been part of a crime in Costa Rica or elsewhere, officials contacted the prosecution service so they could coordinate and conduct a proper investigation.
In concluding remarks, Mr. Sanchez Torres, said there was a need to make the appropriate legal adjustments that could help provide stability and social harmony to Costa Rica. Not everything could be solved with legal instruments, and comprehensive strategies were needed. He noted a will in the country to address the issues raised in the dialogue.
Shara Duncan Villalobos, Ambassador, Permanent Mission of Costa Rica to the United Nations Office and other international organisations in Geneva, said the State party placed utmost importance on the Committee’s recommendations on how the State should implement its obligations regarding human rights. This was an opportunity to strengthen the State’s legal and internal order, and its promotion and protection of human rights.
In her concluding remarks, Carmen Rosa Villa Quintana, Committee Chair, thanked the delegation for participating in the dialogue. The Committee encouraged the State party to implement all the articles of the Convention as it continued efforts to reform the country. The Committee and the State needed to pool their efforts to stamp out enforced disappearance.
The delegation of Costa Rica was made up of representatives of the Ministry of Justice; the Ministry of Foreign Affairs; the Legislative Assembly; the Attorney General; the Public Defence; the Ministry of Public Security; the General Directorate of Migration and Immigration; the Ministry of Interior and Police; and the Permanent Mission of Costa Rica to the United Nations Office and other international organisations in Geneva.
The Committee will issue its concluding observations and recommendations on the report of Costa Rica at the end of its twenty-fourth session, which concludes on 31 March. Those, and other documents relating to the Committee’s work, including reports submitted by States parties, will be available on the session’s webpage. Summaries of the public meetings of the Committee can be found here, while webcasts of the public meetings can be found here.
The Committee is next scheduled to meet in public on Friday, 31 March to close its twenty-fourth session.
Report
The Committee has before it the initial report of Costa Rica (CED/C/CRI/1).
Presentation of the Report
EXLEINE SANCHEZ TORRES, Vice Minister for Justice and head of the delegation, said in Costa Rica, international human rights instruments were a fundamental resource against violations of the human rights of all persons, including through enforced disappearance. The country was interested in including enforced disappearance in its legal arsenal, after the ratifications of the Inter-American Convention on Enforced Disappearances in 1996, the Rome Statute in 2001 and the Convention in 2012. All institutions had been working jointly to ensure due attention and effective protection for any victims of enforced disappearance.
The protection of detained persons, nationals or foreigners, started with the constitutional premise that nobody could be detained without evidence of having committed an offence. Persons could only be detained with a court order or by an authority responsible for public order. Fair treatment was accorded throughout proceedings by the prosecution service and the Judicial Investigative Agency. From the moment of their detention, detainees were made aware of their rights, why they had been detained, and who had ordered that detention. Detainees had access to private or public defence and consular assistance, and were not subjected to degrading treatment or punishment. Digital systems that ensured control, registration and storage of information allowed all requests to be served immediately so that families or third parties knew the status and integrity of the detained, without revealing confidential data. It was possible for the right to communication to be limited when the accused was suspected of affecting the investigation.
The Constitution and the Penal code provided for holding detainees incommunicado for up to six hours by the judicial police and the prosecution service and for ten days by judges. Decisions by judicial authorities could be challenged through the habeas corpus writ before the Constitutional Chamber of the Supreme Court of Justice. The right to appeal before the courts for the denial or approval of extradition and to complain against State services was guaranteed. Persons could lodge complaints of abuse by State authorities. The State cooperated if an individual was seeking information on the whereabouts of another individual. The Judicial Investigation Agency worked together with the Prosecution service in conducting investigations. In cases of death for unknown reasons, domestic legislation provided for the duty to investigate ex officio. Victims had the option to take criminal and civil action to claim compensation and reparation.
Costa Rica, due to its geographical position, was used by criminal groups for drug trafficking and related crimes, including trafficking in persons. This could be directly linked to enforced disappearances. The Office to Counter Trafficking in Persons and Smuggling of Migrants under the Directorate General of Migration, the National Coalition Combating Trafficking in Persons and Smuggling of Migrants, and the Care Protocol for Special Migration Situations were in place to ensure early detection for special migration situations and immediately care for victims and involved parties. If a case related to trafficking in persons was detected, an inter-institutional communication was released involving all relevant authorities for investigation.
Thousands of regional and extra-regional migrants crossed Costa Rica, hoping to settle in the north of the continent. In 2021, there had been an increasing trend in the migratory flow from the Darién in Panama. In December 2022, 20,677 migrants from Panama were reported crossing into Costa Rica, mostly from Venezuela, Ecuador, Haiti and Colombia. This represented a 77 per cent increase compared to 2021. The General Migration Law guaranteed compliance with the principle of non-refoulement. The State party had received no requests to extradite foreigners who had committed the crime of enforced disappearances in Costa Rica. If it were to receive such a request, it would be the State’s duty to consider the request based on the Extradition Act.
The administrative regime assessed offences by public officials based on tenets such as breach of duty in the Penal Code, issuing sanctions and disciplinary measures. In the last two years, there had been 92 cases of abuses of power, of which 43 were already being processed. Most cases followed complaints made by detainees to the Ombudsman. Civil officials could complain to their superiors or relevant judicial authorities against any behaviours or orders from superiors that they considered contrary to law. Obeying orders from supervisors was considered exempt of liability. However, if a supervisors considered that their supervisee had breached their duties, they had to lodge a complaint against this supervisee.
Costa Rica was aware that the State’s work for the protection and promotion of the human rights of all persons in Costa Rica was not sufficient to deal with enforced disappearance. The challenge was to expressly address it in domestic legislation, so there was no undue interpretation. The State party was committed to this, and dialogue was ongoing.
Questions by Committee Experts
HORACIO RAVENNA, Committee Expert and Country Co-Rapporteur, said the Committee was struck by Costa Rica’s strong commitment to regional and international human rights instruments, having ratified the Inter-American Convention on Forced Disappearance of Persons and practically all United Nations human rights treaties, except for the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. Why had the State party not yet enacted law that criminalised enforced disappearances? Were there factions of the Government that would not support that? The Convention had been ratified for some time. Were there problems with the rights recognised and the obligations it placed on States? The State party had reported that Costa Rica had no cases of enforced disappearance. If there were such cases, what legislation and criminal definitions would apply? Why had the State party not recognised the competence of the Committee under articles 31 and 32 of the Convention? Had the State party received any complaints of enforced disappearance? How would law enforcement officers, the police and the judiciary respond to cases of enforced disappearance?
States had an obligation to inform individuals of the Convention’s provisions regarding detentions. There were no exemptions that allowed the State to disappear a person, even if it was for a short period of time. Was the State party aware of such situations?
Did non-governmental organisations participate in compiling this report and the Universal Periodic Review report? Was there an exchange of information with civil society? Non-governmental organisations often complained to the Committee about how difficult it was to lobby the Government and put their cases forward.
In cases of kidnapping or of missing individuals, which State body intervened and what actions were taken? Article 386 of the Criminal Code established crimes against humanity as “generalised or systematic attacks”. Did the article address other types of crimes?
What was the procedure in place when dealing with a person who was undocumented or had not entered the country legally? Was there compliance with the measures in the Convention regarding identification and assessment of health. Did officials assess whether children were accompanied by guardians? What happened to migrants who entered the country in an irregular fashion?
What room did a subordinate have to not carry out a potentially illegal order from a superior? Under what law could the State party investigate subordinates and superiors to determine responsibility, and issue punishments to superiors who ordered illegal acts? Regarding enforced disappearance, what were the mitigating and aggravating terms that existed currently in the criminal code?
JUAN JOSÉ LOPEZ ORTEGA, Committee Expert and Country Co-Rapporteur, said the State party had clarified that the statute of limitations would depend on the seriousness of the crime, and this would be subject to a future reform. At what point would the statute of limitations begin for a kidnapping for extortion?
Extraterritorial or international jurisdiction was provided in article seven of the criminal code. There was a list of crimes committed by or against Costa Ricans abroad for which Costa Rica had jurisdiction. Enforced disappearance was not on that list because it was not defined as a crime. If a Costa Rican was accused to having committed a crime of enforced disappearance abroad and sought refuge in a country, what crime could they be convicted of?
How did State party guarantee in practice the opening of an official investigation without the need to lodge a complaint with regards to enforced disappearance? What protocols of action were in place regarding searches for disappeared persons that particularly promoted immediate searches?
How did the State party guarantee the procedural rights granted to victims contained in article 71.3 of the code of criminal procedure? Would the State party provide a lawyer if victims could not afford one? Could victims appeal and call for acquittal? How did the Victims and Witnesses Protection Unit and the Crime Victims Support and Protection Office operate and coordinate? In cases of kidnapping for extortion, institutional violence and cases against public officials, what protection had been offered to victims and witnesses? When the State party investigated an official for a crime, could that person under investigation be removed from their duty while the investigation was underway? In what circumstances could suspension from duty be triggered? Could suspensions be applied to the official and to the whole unit and team to which the official belonged?
Responses by the Delegation
The delegation said that, in addition to the ratification of the Convention and the Rome Statute, bills had also been drafted that criminalised and conceptualised what had been recommended within the Convention. These bills had not yet been adopted. However, the Human Rights Commission was working tirelessly to ensure that they were included within the legal framework.
Costa Rica had no concerns regarding the ratification of articles 31 and 32 of the Convention and their procedures. There had been some fear when it came to interstate communications because in the past there had been instances of communications being politicised. Costa Rica would take the necessary measures to accept the individual communications provisions.
EXLEINE SANCHEZ TORRES, Vice Minister for Justice and head of the delegation, said there were no cases of enforced disappearance in Costa Rica. A bill was currently going through legislative channels. Once the State party had this law, it would have to uphold the bill’s provisions. Deprivation of liberty, concealing of detainees and kidnapping would be criminalised. The bill could fill the gaps that existed in existing legislation. Abuse of authority would also be covered by the law.
Costa Rica had a set procedure to investigate disappearances. There was a particular unit and a protocol for the police, which called on the police agency to ensure due diligence. Another phase of the investigation was visiting the last known site where the offence had been carried out.
The State had a provision regarding derogation from human rights guarantees, however there had been few derogations. COVID-19 response measures were the closest the country had come to derogation.
EXLEINE SANCHEZ TORRES, Vice Minister for Justice and head of the delegation, said there was a control system in place with regards to pre-trial detention and an office dealing with such detentions that was open 24 hours a day. When somebody was held in pre-trial detention, this office had to be informed of the reasons why. Prosecutors decided whether to continue the pre-trial detention of these persons and the trial procedure. The human rights of detainees were respected. Administrative controls and balances allowed the detainee to lodge complaints. From the time of arrest, they had a right to access public defenders or their own private defender. The defender had a right to visit the detainee in the place of the detention. The system was transparent and did not allow for violations.
Short-term detentions did not happen often in Costa Rica. Often, short-term detentions were conducted in breach of detainees’ pre-trial rights. The State party did not have a clear definition of short -term detentions. At any point, detained persons could make a complaint and cite abuse by a public authority. Costa Rica had received many complaints on abuse of authority, and all these were considered by the public prosecution service. Only the public prosecutions office could determine whether to conduct investigations. The police presented cases to the public prosecution office.
The delegation said the State consulted with non-governmental organisations in the preparation of reports for United Nations organs. Costa Rica had established a commission, in which 30 State institutions participated, to follow up on the implementation of international human rights standards. Civil society participants attended the meetings of the commission, giving their comments on the reports. A report was issued after a unanimous vote from the whole commission, including members of civil society. If representatives did not agree with something in the report, they could prevent the report from being published. The same applied to the universal periodic review report.
On crimes against humanity, the Criminal Code provided for a 25-year prison sentence in cases of systematic attacks against civilians that qualified as crimes against humanity. The State party was incorporating into the Criminal Code the definition of crimes against humanity included in the Rome Statute.
Migration was a universal right covered by international conventions. Arrivals and departures of individuals in Costa Rica were governed by the ratified and enforced international treaties. The General Directorate for Migration was tasked with designing strategies to boost the sustainability of the social security system. Regarding irregular migrants, two aspects should be considered.
The police consulted the Interpol database to identify vulnerable persons and victims of international crimes. The police placed unaccompanied minors in the care of the national institution for childhood. The State had been working on establishing a centre for migrants on the southern border of the country to protect and support vulnerable groups crossing into the country with accommodation, food and medical checks, according to their needs. The police would identify vulnerable persons, and voluntarily transfer them to the migrant centre. If a person or a group of persons considered vulnerable had been part of a crime in Costa Rica or elsewhere, officials contact the prosecution service so they could coordinate and conduct a proper investigation.
Through the databases and the notifications from Interpol, the State party could pinpoint persons representing risks for national security. The police forces were tasked with apprehending an individual if they had a criminal background in their country of origin or in a third country. Steps had been taken to establish a road from Panama to the north to Nicaragua so people could move across the country to capture criminal networks and ensure safety in cross-country travels.
The general law on migration established administrative measures such as house arrest and arrest with a view to deportation to the migrant’s country of origin. These were the most serious measures that could be exercised by the State against a foreign national. For this to take place, there needed to be justification that the person represented a threat to national security. Legislation governed administrative issues on rejection, deportation and expulsion.
Enforced disappearances had not been defined as a crime because Costa Rica had not had such cases. If there were cases, the State party would apply the law on deprivation of liberty. The State party followed the provisions of international treaties to which it was a party in cases involving extradition and crimes against humanity. When investigating kidnappings for extortion and other cases, the prosecution service obtained information according to the criminal code. The Committee could visit the State party and take stock of the modus operandi and the situation of the ground. Respect for human rights was ongoing. If there were violations, the prosecution office would investigate ex officio.
Article 45 of the Criminal Code established that a person could be punished if they acted on their own behalf or on the behalf of others. The public prosecution service was governed by facts and evidence. There were mitigating and attenuating circumstances on kidnapping for extortion, but not for enforced disappearances, since the crime did not exist in criminal legislation. The statute of limitation for enforced disappearance cases began when the victim was found or freed. Article six of the Criminal Code stipulated that offences that had been committed by persons at the service of Costa Rica and offences perpetrated against a Costa Rican could be punished. To the same effect, article four talked about the criminal law applying to the whole of Costa Rican territory. The delegation believed that State criminal legislation covered the possibility to investigate and punish crimes as they arose. On enforced disappearance, since the crime did not exist, the State party would conduct due diligence on a case-by-case basis.
EXLEINE SANCHEZ TORRES, Vice Minister for Justice and head of the delegation, said that in Costa Rica, the investigatory police service served under the justiciary and the administrative police served under the executive. According to State protocol, the coordination of searches in response to reports of enforced disappearance was to take place immediately. Within the protocol, there was an obligation to inform a representative of the public prosecution service about the report. An immediate search was launched, involving the family to establish the facts. The more time passed, the more difficult it was to prosecute the crime.
The delegation said the checks and balances functions across and within public powers should be considered. There was an office in the judiciary for the protection of victims outside of the penal system. If the victim was part of the criminal system or within the prison system, Costa Rica provided defence from the first moment of arrest. There was a clear record of the legal and physical location or status of persons within the prison system, including of persons in transit cells, in pre-trial detention or in detention cells within the Ministry of Justice. If the person was outside of the system, the public defence was available to uphold their rights. Once the victim had been established in a formal sense, the case was handed over to the public prosecution service.
Follow-Up Questions by Committee Experts
HORACIO RAVENNA, Committee Expert and Country Co-Rapporteur, said the subject he had raised was not “short-term detention” but “short-term disappearances”. “Short-term disappearances” were cases in which the whereabouts of a person previously in the custody of State agent became unknown for a period of time. An example brought to the Committee regarded a detained person who was transferred without giving information to their family or another party. One week later the person was found in a cell, but during that period, the case was taken as a disappearance. The Committee welcomed the possibility that the draft bill on enforced disappearance would be promoted. Within the country, was the voice of non-governmental organisations heard? What was the rationale behind the State party’s work?
The Committee welcomed the inclusion in the Criminal Code of the definition of crimes against humanity used in the Rome Statute, and the fact the State party was prosecuting crimes against humanity. A practice the Committee had noted in the region, not in Costa Rica, was that refugees and migrants were left at the border, leaving them unprotected, which was not in compliance with the Convention’s obligations. There were conventions and bilateral agreements that addressed deportations due to criminal backgrounds. The State was obliged to ensure the person was not at risk of being subject to enforced disappearance in the destination State. Article 31 of the Convention provided for the possibility of the Committee receiving communications from individuals regarding violations by the State party. Article 32 allowed State parties to submit communications against other State parties, which Costa Rica was not comfortable with. Both of these articles protected victims.
JUAN JOSÉ LOPEZ ORTEGA, Committee Expert and Country Co-Rapporteur, asked the delegation to clarify the State party’s position on criminalising enforced disappearance as an autonomous offence. Enforced disappearance should not be confused with kidnapping; they were different offences. There had been work on a draft bill on enforced disappearance. Did the State party develop a definition of the crime in this draft, and could the draft be shared with the Committee so that the Committee could offer recommendations? Under the Convention, there was an obligation to inform families of transfers of detainees and where the detainee was, and these provisions were not covered by legislation on kidnapping for extortion. Criminalisation of enforced disappearance was important for prosecution.
The State party had said that in Costa Rica, there had been no complaints of enforced disappearances, but reference was made in civil society reports to disappeared migrants. Migrants were exposed to crimes that could be related to enforced disappearances. For example, women and girls in transit could become victims of trafficking. How was the State addressing migration issues?
The Constitution allowed for the suspension of constitutional guarantees. Could the State party clarify the limitations that could be introduced to the freedom of persons in a state of emergency?
If a subordinate had received a clearly illegal order, then they were not obliged to obey it and should report it. However, the supervisor had to report disobedience. How did this work? Were these provisions applicable to police officers? How was the act of disobedience legitimate? Under what conditions did authorities such as police officers apply this provision?
The definition of victim in the Convention was broader than the one in the criminal procedural code. Did the rights of the families of disappeared persons differ from those of families of persons who had been kidnapped? Did the State provide all victims with lawyers for free? Could victims appeal decisions?
Extradition worked if a crime was recognised by both the requesting and the requested State. If the enforced disappearance offence was not criminalised, how would it work if the request related to a perpetrator of enforced disappearance? The State party referred to one request for judicial cooperation pertaining to a case of enforced disappearance. Could the circumstances of this specific case be clarified?
Responses by the Delegation
The delegation said the legislature was committed to defining enforced disappearance as a crime. It would be irresponsible for the State not to define as a crime something that it had ratified in the Convention. The draft bill introduced in Costa Rica in 2017 was a bill considering the implementation of the Convention and the Rome Statute. Enforced disappearance was not well defined within it. Replacement text might be produced following this dialogue to ensure that this draft bill became law. The State party would share the draft bill with the Committee, and welcomed the Committee’s recommendations regarding it.
The inter-institutional commission on human rights standards had a permanent seat for representatives of civil society, who voiced concerns over reports under discussion. The commission’s decisions had to be adopted with unanimous votes.
Costa Rica had established several strategies regarding the identification of migrants. The country worked with Panama and Colombia to ensure monitoring. Costa Rica strived to afford appropriate assistance, including through the migration and migrants centre. The migrant population’s main goal was to reach the United States or Canada. Many socio-political problems in their countries pushed them to migrate. Officials dealing with these migrants received training to detect vulnerabilities, criminal activities or abuse. The law on migration obliged the State party to inform of deportations through the consulates of each country. In practice, many of these people did not have identification documents. There was a need for an administrative procedure to obtain appropriate documentation via consulates.
According to State legislation, “victims” were persons who had been harmed and their families. In the public prosecution service, there was an office dealing with victims directly. A lawyer was provided to victims. There was also an office for the protection of victims and witnesses, which was granted a separate budget.
The definition of the crime of enforced disappearance within legislation would help to facilitate investigation. As things stood, investigations were possible, and impunity would not occur. Such legislation would perhaps facilitate the process and lead to more effective investigations. Suspension of duties needed to be decided on a case-by-case basis, based on evidence available.
The delegation said Costa Rica had not suspended constitutional guarantees to date. The Constitution did not allow for the substitution of constitutional rights nor the suspension of constitutional order. The Constitution did not allow for the suspension of the right to habeas corpus. Arbitrary detention was still prohibited in states of emergency. Although suspension of duties was possible, individuals enjoyed guarantees to ensure such suspensions did not become a pretext for violating constitutional rights.
Questions by Committee Experts
JUAN JOSÉ LOPEZ ORTEGA, Committee Expert and Country Co-Rapporteur, noted the increase in the number of migrants moving through Costa Rica. Could the State party provide more information on the procedures for the expulsion of foreigners, not only migrants, and extradition? What were the mechanisms and criteria used to assess the risk of foreigners committing enforced disappearance or other human rights abuses? Were foreigners granted the right to appeal cases against them and the right to be appointed a lawyer? Did appeals have suspensive effect on deportation orders? Which body was tasked with providing diplomatic assurance? A large percentage of migrants were from Nicaragua. Could these persons be returned without consideration of the potential rights abuses that they faced? How did persons deprived of liberty communicate with their lawyer and family members? How did the State party inform families of detentions and the transfer of detainees from one place to another? Were there any protocols followed by authorities? Had there been complaints?
Could the 10-day limit on incommunicado detention be prolonged or extended? Was it possible to have multiple incommunicado sentences? Could persons held incommunicado be visited by their lawyers, families, consular authorities if they were foreigners? Was the habeas corpus procedure extended to foreigners, juveniles or persons held against their will in psychiatric institutions? Did the national mechanism for the prevention of torture have immediate access to all places of detention? What law allowed for this? What measures had been adopted to guarantee adequate resources to this mechanism?
Were records of persons deprived of their liberty kept in places of deprivation of liberty? Was there a coordination mechanism between the different records? Did oversight bodies identify any gaps? What measures had been taken to correct such gaps? What measures had been adopted to prevent and sanction any non-compliance with the obligation to inform family members of where persons deprived of their liberty were? Was specific training on the Convention provided to personnel involved with persons deprived of their liberty?
HORACIO RAVENNA, Committee Expert and Country Co-Rapporteur, asked if there was any possibility, including a bill under discussion, to expand the concept of a “victim” to align it to the Convention. This would set the proper foundation for lodging complaints. Did the State party understand the right to truth as a stand-alone right within its legislation? What provisions did the State party have for reparations? Who awarded reparations? How should a claim be made? Was the guarantee of non-repetition provided for in the State party’s law or was it being considered?
There was a criminal network, including mafia, taking advantage of new-borns in the adoption system. Were there any provisions to ensure places where births took place complied with measures to ensure the safety of children? The Committee was not aware of provisions to prevent the falsification of birth certificates. What measures had been taken to identify children at the point of birth to ensure mafia were not able to falsify these documents? Were there controls at borders and checkpoint to ensure children did not leave the country with falsified documents? Did the State party have any agreement with neighbouring countries in this regard? How did the State party understand the best interest of the child? The State party said in its responses it had recognised the international law that underpinned international adoption. What legal provisions did the State party have to domestically apply that law?
CARMEN ROSA VILLA QUINTANA, Committee Chair, said the last time that the draft bill that addressed enforced disappearance was brought to the Legislative Assembly was 2017. What was the status of that bill? When did the State party think it might be able to revise the bill and include enforced disappearance as a stand-alone crime? Was there any kind of partnership with other States, notably with Central American States, to ensure protection of all persons from enforced disappearance?
Responses by the Delegation
The delegation said expulsion and deportation needed to be distinguished. “Expulsions” referred to foreign nationals enjoying permanent residence who were ordered to leave the country because their activities compromised safety or the public order. When expulsion orders were issued, a process began to nullify the foreign national’s migration status. The foreign national could appeal in administrative proceedings. “Deportation” was an order issued by the Ministry of Migration in specific situations, such as in the case of an irregular migrant that had not complied with standards.
If an individual or their family was deemed in a situation of vulnerability, they would receive adequate support. The integration of migrants into society was promoted. When a migrant was arrested because of their actions, they were informed of the reasons why they had been arrested, and offered access to a lawyer of their own choosing, interpretation, administrative files, as well as dignified treatment. Detained migrants were able to keep contact with their families, lawyers and consulates. Visits were authorised. They could initiate habeas corpus actions when there was an alleged breach of rights. The Directorate General on Migration was in contact with migratory tribunals competent to receive appeals in deportation and expulsion cases. Foreign nationals had access to appeal.
There was a high migration flow with Nicaragua. Work permits, asylum or appropriate protections may be given to migrants from Nicaragua. Nicaraguans deported to their country of origin had entered irregularly or had criminal records. The Administration informed the Nicaraguan Consulate and surrendered the individuals to migratory authority in their countries.
EXLEINE SANCHEZ TORRES, Vice Minister for Justice and head of the delegation, said Costa Rica had a good record in terms of informing families of transfers between detention centres. A coordinator was tasked with informing family members via telephone beforehand. Families knew where the detainee would be transferred to.
Following a judicial order, a person was held in incommunicado detention for up to 10 days. This period could not be extended. Communication with lawyers would not be impeded, while communication with family depended on each case. Habeas corpus could be invoked. The whole case file was available to the lawyer. At no point was a person concealed. On extraditions, appeals had a suspension effect. Refugees and political asylum seekers could not be extradited. Extraditions were decided by judges, who determined the applicable diplomatic assurances. No mafia that was kidnapping children existed in Costa Rica, but there was a criminal court for persons suspected of abduction of children, an offence that was prohibited by the Constitution.
The national preventive mechanism had the right to visit without restriction and with immediate access any detention centre that had cells, including transitory cells. They collated a report with their findings, which had legal standing. Registers and records of persons deprived of liberty were held in the judicial office. There was a centralized criminal register with update information. This information was treated with confidentiality. Costa Rica was providing training for the officers and the detained persons.
The delegation said the draft bill on enforced disappearance was currently going through legislative channels and had been since 2017. This was the first attempt to criminalise all that had been called for in the Convention. It was extremely important that the bill criminalised the offence of enforced disappearances, reformed the criminal procedure code, established that enforced disappearances would have no statute of limitation, and incorporated the protection of children and provisions of non-repetition. The delegation was working to be able to pass the bill in the next three years. No cooperation was in place with neighbouring countries currently. This would up to the executive once the bill had been adopted into law.
Article 70 of the criminal procedure code was a formal concept. It did not mean that in other cases, a person who had legitimate cause could not have access to remedy. In the State party, remedies were comprehensive, they were not just about monetary compensation.
To prevent falsification of birth certificates, a civil registry recorded all births in Costa Rica. Within the social security system, in any part of the country, clinics or hospitals, people could record the birth of their children. This was automatically accessed.
Questions by Committee Experts
HORACIO RAVENNA, Committee Expert and Country Co-Rapporteur, asked whether monitoring mechanisms visited places like juvenile centres, centres for migrants at the borders that did not have cells, or psychiatric institutions? What were the powers of these mechanisms? What were the comparative percentages of women deprived of liberty and for what kinds of crimes were they detained? The State party said that public defence was authorized to conduct visit to places of deprivation of liberty. Was there a diverse range of mechanisms overseeing the penitentiary system?
JUAN JOSÉ LOPEZ ORTEGA, Committee Expert and Country Co-Rapporteur, said asked whether foreign nationals due to be deported had access to a lawyer free of charge when they could not afford one? Was the Constitutional Chamber in a position to immediately rule on appeals for habeas corpus?
The Committee had received news that last November, an executive decree on asylum had been adopted that would mean that requests needed to be submitted within 30 days. Could this represent a serious obstacle for people seeking asylum? What were the criteria used to assess the degree of risk? The State party said courts decided on extradition. Who established guarantees of safeguards? If assurances were deemed sufficient by the Executive, was there any further judicial oversight regarding that decision?
In the first hours of detention, how did the State party manage the communication with the lawyer, family members and consular system if the detainee was a foreigner? Was there a timeframe by which the lawyer would be in contact with the person? Costa Rica had different databases of records regarding detainees. Was there coordination regarding the information in these databases? Was there a campaign to centralise the information? To what extent did the judiciary and the police receive training on the Convention? How many visits did the national preventive mechanism conduct last year?
It was important for the State party’s legislation to be streamlined with the Convention’s definition of victim. One of the guarantees in the Convention was to make it possible for victims to participate in search and investigation procedures. The protection of children called for additional parameters from the point of view of criminalisation.
CARMEN ROSA VILLA QUINTANA, Committee Chair, during the review of the Constitutional Chamber, the Convention was not mentioned. Dissemination of the Convention was key. Reference to children was also lacking. In-depth analysis was needed to implement criminal reform that would reflect the Convention.
Responses by the Delegation
The delegation said the national preventive mechanism had the ability to carry out inspections in centres of deprivation of liberty, including penitential centres for juveniles, border centres, transit centres, border posts, airports, mental institutions, psychiatric institutions, and means of transport of persons deprived of liberty.
EXLEINE SANCHEZ TORRES, Vice Minister for Justice and head of the delegation, said women and children were vulnerable within penitentiary centres. Up to 17 March, there were 509 women detained out of the 15,700 persons in prisons. Most of the offences that women were charged with had to do with drug trafficking, including smuggling drugs into penitentiary centres. In the Women’s Unit within penitentiary centres, there were very high levels of infant and maternal mortality. Children aged between zero and three of detained women stayed with their mothers in prison, which had ramifications on their families. Costa Rica also had a semi-institutional facility for women.
The delegation added that the national preventive mechanism was part of the Ombudsman’s Office. The Ombudsman had to be always available to verify that the registers produced by the different centres of deprivation of liberty reflected reality. Once a week, the Ombudsman had to visit penitentiary centres to conduct reviews. The Ombudsman’s Office was able to point out possible human rights violations and signal them to the judiciary. The Office often applied habeas corpus. In five days, the Constitutional Chamber considered all cases brought before it. Civil society organisations took part in inspections in penitentiary services. Costa Rica had internal checks and balances to ensure enforced disappearance did not occur and, if it did occur, it was identified immediately. Training was provided to public officials on international law and human rights, on the interpretation of the Convention and how it applied to the different agencies.
The care centre for foreigners on the southern border played the role of a shelter. It was not a detention centre. Family members and lawyers were allowed to visit the persons living there. In recent years, there had been an increase in requests for asylum. There were “economic refugees” living in the country whose asylum requests were slowing processing of persons with legitimate requests. Some persons had to wait for months or years for a decision concerning their status. The State was currently processing cases from 2016, so there was a backlog. Asylum seekers from Cuba, Nicaragua and Venezuela, who represented the majority of asylum seekers, had been given temporary special status.
EXLEINE SANCHEZ TORRES, Vice Minister for Justice and head of the delegation, said if there was information in the centralised criminal register that was sensitive, this could not be shared by the judicial police. The prosecutor was tasked with leading the prosecution.
The delegation said in Costa Rica, courts ruled on extradition cases. The Executive was just an intermediate. Foreign nationals had access to public defence, like any individual, from the very first moment of the arrest.
Closing Statements
EXLEINE SANCHEZ TORRES, Vice Minister for Justice and head of the delegation, thanked the Committee for dialogue. Enforced disappearance was a high priority issue. There was a need to make the appropriate legal adjustments that could help provide stability and social harmony to Costa Rica. Not everything could be solved with legal instruments. Comprehensive social strategies that incorporated training, values and even spirituality were also needed. In Costa Rica’s case, it was necessary to self-assess and address the issues raised in the dialogue. The three pillars of the Republic would working together actively to address these issues. The State was obliged to leave a legacy of peace and harmony.
SHARA DUNCAN VILLALOBOS, Ambassador, Permanent Mission of Costa Rica to the United Nations Office and other international organisations in Geneva, said the State party placed utmost importance on the Committee’s recommendations on how the State should implement its obligations regarding human rights. Costa Rica looked forward to the Committee’s concluding observations. This was an opportunity to strengthen the State’s legal and internal order, and promotion and protection of human rights. Enforced disappearance had historically not been a problem for Costa Rica. That was perhaps why there had been a lack of action in some areas to do with the definition of the crime in legislation. However, the country was not immune to the crime. The Committee’s recommendations would be beneficial to all Costa Ricans.
CARMEN ROSA VILLA QUINTANA, Committee Chair, thanked the delegation for participating in the dialogue. The Committee and State party shared a common goal of implementing the Convention. Ms. Villa Quintana promised the Committee’s continued support, including on providing information on how to apply the recommendations or on any questions related to enforced disappearances. The Committee encouraged the State party to implement all the articles of the Convention as it continued efforts to reform the country. The Committee and the State needed to pool their efforts to stamp out enforced disappearance.
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CED23.005E