How to use the Inter-American Human Rights System in Refugee and Asylum cases or Related Violations
- Filing a petition alleging a violation of human rights
- Requesting precautionary measures be taken to prevent irreparable harm.
States and their institutions can fail to provide adequate help for refugees and asylum seekers. When a decision reached by a State is considered to be in breach of regional rules regarding the adequate treatment of refugees, it is possible to access one of two institutions in the Americas, which provide help for refugee and asylum seekers. They are the Inter-American Commission for Human Rights (‘The Commission’) and the Inter-American Court of Human Rights (‘The Court’).
Individuals can take cases to the Inter-American Commission of Human Rights. Full details on how to do this can be found here in English and in Spanish. These include the forms which must be filled in in order to present a case to the Commission. Before reading these, here are the basic details regarding the procedures so you can assess whether you qualify.
Only States or ‘the Commission’ itself can submit cases to the Inter-American Court. Therefore, individuals do not have direct recourse to the Human Rights Court; they must first file their petition to the Commission and go through the procedure for cases before the Commission. This is free of charge and it does not require a lawyer. If a case is deemed strong enough, the Commission may take it to the Inter-American Court. The Court will then issue a reasoned judgement, and can also suggest the State change its laws, make reparation for the damages caused or require that the State adopt other measures.
In order to file a petition to the Commission, it is necessary that one first:
a) Exhaust the domestic judicial remedies of the host country (unless there is an unexplained delay on a final decision; domestic laws do not provide due process to protect the rights allegedly violated, or the alleged victim has not been allowed access to domestic remedies or has been kept from exhausting them), and;
b) Submit the petition within six months of the date of notification of the final judicial decision that exhausted domestic remedies. When an exception to the exhaustion of domestic remedies requirement applies, the six-month term does not apply.
1. Filing a petition alleging a violation of human rights
Individual petitions examined by the Commission may be submitted by individuals, groups of individuals, or organizations that allege violations of the human rights guaranteed in the American Convention, or other inter-American human rights treaties. If the Commission decides to refer the case to the Court, the Court will analyse it and issue a reasoned judgement. The Commission, the State, and the victim(s) participate in the process before the Court.
2. Requesting precautionary measures be taken to prevent ‘irreparable harm’
In serious and urgent situations, the Commission may, on its own initiative or at the request of an individual or party, request that a State adopt precautionary measures to prevent irreparable harm to persons under the jurisdiction of the State concerned, independently of any pending petition or case, or connected with a pending petition or case. An individual can present a request that the Commission asks a State ‘to adopt precautionary measures to prevent irreparable harm to persons due to their association with an organization, a group, or a community with identified or identifiable members’ (Art. 25 of the Rules of Procedure of the IACHR). In order to request precautionary measures, it is not necessary to exhaust the domestic judicial remedies.
It is possible for precautionary measures to be linked to specific petitions. However, they may also be pursued independently, without the need to file a petition. If the Commission decides to adopt or reject a request for precautionary measures, the petition linked to it will continue its course until the Commission decides how it is going to respond regardless of whether or not the precautionary measure was successful.
‘If the Commission decides to grant a request for precautionary measures, the Commission will turn to the authorities who represent the State in question to ask them to adopt certain measures of protection or prevention. It is the State, in consultation with the beneficiary that implements the precautionary measures granted.’
It is important to know that the Commission cannot:
– issue a ruling with respect to a State that is not a member of the OAS (Check here for current OAS membership)
– provide attorneys to assist in domestic judicial proceedings or to submit a petition or request for precautionary measures to the Commission;
– provide economic assistance or materials and supplies to persons;
– undertake immigration procedures, or process the granting of visas or political asylum.
Written by Violeta Barrera (BA Law and Sociology, MA Legal and Political Theory), for the Rights in Exile Programme, October 2013