Decision TA2-14980 (Revoked Jurisprudential Guide (2011), In Private)

Claimant(s): XXXXXXXXXXXXXXXXX
Date(s) of Hearing: 11 March 2003
Place of Hearing: Toronto
Date of Decision: 20 March 2003 (amended May 27, 2003)
CORAM: E.S. Schlanger
For the Claimant(s): Daniel Kingwell, Barrister and Solicitor
Refugee Protection Officer: n/a
Designated Representative: n/a
Minister's Counsel: n/a

XXXXXXXXXXXXXXX alleges that he is a 21-year-old citizen¹ of Costa Rica. He claims to be a person in need of protection as a person at risk of losing his life or being subjected to cruel and unusual treatment or punishment in Costa Rica. He claims to fear Nicaraguan youth gang members because he reported them to the police and consequently the gang member that he identified was detained. He claims that state protection would not be forthcoming if he returned to Costa Rica.

The claimant alleged that in mid-XXXX 2002, while walking near a soccer field, he heard a woman screaming for help and as he approached to inquire, he saw one young man and others behind him. He alleged that one of them said that he should be killed. He alleged that the one he spoke to pulled something from his pocket that may have been a gun, and ran after him but lost him. He alleged that from the woman's screams, it appeared that she was being raped. He alleged that he reported the incident to the police, who took a report and said they would investigate. He alleged that within a week, he learned that people were arrested and he was able to identify at the police station the person who had run after him. He alleged that towards the end of XXXX 2002, he received a threatening handwritten note, saying that life was long enough for them to see each other again. He alleged that as this had frightened him, his father went to the police station to report the note, but the police told him that it was insufficient to investigate since no one had been physically attacked. He alleged that the police further told his father that the charges against the men involved in the rape had been dropped by the victim. He alleged that his father then consulted a lawyer who told him that he could not help him (the claimant) because those involved were minors, and the note was insufficiently serious to warrant legal action. He alleged that the lawyer advised him to leave the country. He alleged that around the beginning of XXXX 2002, his father would sometimes see gang members going by their house. He alleged that he is not aware of this recurring, and believes that the gang members did not come by the house again. He alleged that he left Costa Rica for Canada on XXXX, 2000. He alleged that he is afraid that the gang members might take revenge against him and might want to hurt him, but he is not sure whether they would look for him.

The determinative issue in this claim is whether state protection would be reasonably forthcoming. In making the assessment, the panel considered the claimant's oral and written evidence, counsel's submissions, all the documentary evidence, particularly about youth gangs, the police, the availability of mechanisms for lodging complaints about police abuse or misconduct, and in general, the level of democracy in Costa Rica.

The documentary evidence does not support the claimant's allegations of lack of state protection. There are a number of recourses available in Costa Rica for the assessment, prosecution and granting of remedies resulting from failure of law enforcement agencies to conduct their work.

The documentary evidence reveals that complaints of police abuse of authority or misconduct have declined as the government continued the implementation of the 1994 Penal Code and the Law for Strengthening the Civilian Police which took effect on March 23, 2001.² Furthermore, if police misconduct or abuse occurs, an effective mechanism for lodging complaints exists through the Ombudsman's Office, which serves as a recourse to citizens who have complaints about violations of their civil and human rights, and about deficiencies in public and private infrastructure.³ It investigates complaints, and when appropriate, initiates suits against officials.⁴ The Ombudsman is elected by the Legislative Assembly for a four-year renewable term.⁵ His office is part of the legislative branch ensuring a high degree of independence from the executive branch.⁶ The law provides for the functional, administrative, and judicial independence of the Ombudsman's Office.⁷ Furthermore, the Constitution provides for the right to a fair trial, and an independent judiciary vigorously enforces this right.⁸

According to the 2001 International Narcotics Control Strategy Report⁹ for Costa Rica, Costa Rican law enforcement officials continue to demonstrate growing professionalism and reliability in combating counternarcotics offenses and ever-changing drug smuggling methods. It further states that in December 2001, President Rodriguez signed into law the long-awaited narcotics control legislation that criminalizes money-laundering and creates a Counter-Narcotics Institute to co-ordinate the government's efforts in the areas of intelligence, demand reduction, asset seizure and precursor to chemical licensing.¹⁰ The primary counternarcotics agencies in Costa Rica are the Judicial Investigative Police, under the Supreme Court, and the Ministry of Public Security's Drug Control Police.¹¹ The U.S. law enforcement agencies consider the public security forces and judicial officials to be full partners in counternarcotics investigations and operations with little or no fear of compromise to ongoing cases.¹² The National Drug Prevention Council (CENADRO) oversees drug prevention efforts and educational programs throughout the country, primarily through well-developed educational programs for use in public and private schools and community centres.¹³

The documentary evidence also indicates that the Judicial Investigative Police (OIJ), which has a 20 member anti-gang division, is currently in the process of investigating the numerous San José youth gangs and has profiled the alleged gang leaders.¹⁴ They further show that Costa Rica has a Law of Juvenile Penal Justice which categorizes criminal penalties for young offenders into three types of sanctions: educational sanctions, orientation and supervision sanctions, and liberty deprivation sanctions.¹⁵

The extensive account¹⁶ of prosecutions of crimes in the various courts in Heredia, and the resulting sentences indicate that criminals in Costa Rica are being punished. The panel finds that all the above-cited documentary evidence indicates that Costa Rica is making serious efforts to protect its citizens who are victims of crime.

In the case at bar, the claimant reported the crime that he encountered, and the threat to him because he had questioned the perpetrator about what was going on. The police took the matter seriously, investigated, caught one of the suspects, had him identified and charged him. The charges were then dropped by the rape victim. There is no indication that the police did not carry out their duties. The claimant did not seek any police protection nor raise any concerns to the police when he was asked to identify the suspected criminal. The claimant felt that the police did not want to protect him when his father reported to them the threatening note that he had received. The panel finds that since the claimant was not satisfied with the police handling of the matter, he ought to have pursued the matter by reporting to the Ombudsman. Ignorance of the complaints mechanism is no excuse for the claimant's failure to pursue the avenues available to him in Costa Rica, and taking the extreme measure of seeking protection abroad.

Given that Costa Rica¹⁷ is a longstanding stable, constitutional democracy, with an independent judiciary providing effective means to deal with individual instances of abuse, the claimant bears the onus of establishing that state protection would not be available. The claimant must do more than simply show that he went to some members of the police force and that his efforts were unsuccessful.¹⁸ The more democratic the state's institutions, the more the claimant must have done to exhaust all the courses of action open to him.¹⁹

The panel finds that the claimant has not discharged the onus of showing clear and convincing proof of the state's inability or unwillingness to protect him.

As the panel finds that there is adequate state protection available to the claimant in Costa Rica, it determines that he is not a person in need of protection in that there exists no substantial grounds to believe that he will be subjected personally to a risk to his life or to cruel and unusual treatment or punishment in Costa Rica.

The panel also considered the applicability of the Convention refugee grounds and the protection grounds in section 97(1)(a) of the Immigration and Refugee Protection Act (IRPA). However, in light of the fact that state protection is available to him, the panel finds that he is not a person in need of protection under those grounds either.

Accordingly, the panel rejects the claim of XXXXXXXXXXXXXX for refugee protection.

E.S. Schlanger
DATED at Toronto this 20^th day of March, 2003.

Endnotes

1. Exhibit M-1-Certified true copy of some pages of the claimant's Costa Rican passport submitted by Immigration.
2. Exhibit R-1-item 1, item 2.1, p. 32, U.S. Department of State Report, Country Reports on Human Rights Practices 2001, Costa Rica, March 2002.
3. Ibid.
4. Ibid.
5. Ibid.
6. Ibid.
7. Ibid.
8. Ibid.
9. Exhibit R-1, item 2.2, p. 41, International Narcotics Control Strategy Report, March 2002.
10. Ibid.
11. Ibid.
12. Ibid.
13. Ibid.
14. Exhibit R-1, item 1, RPD Information Package-Costa Rica, item 3, p. 62, Response to Information Request CRI38217.E, 22 January 2002, DIRB, IRB.
15. Exhibit R-2, Response to Information Request CRI40571.E, 9 January 2003, DIRB, IRB.
16. Exhibit R-1, item 1, RPD Information Package-Costa Rica, item 3, p. 59 Response to Information Request CRI40288.E, 7 November 2002, DIRB, IRB.
17. Supra, footnote 2.
18. Canada (Minister of Citizenship and Immigration) v. Kadenko (1996), 143 D.L.R. (4^th) 532 (F.C.A.).
19. Ibid.