b. The possibility of requesting and receiving legal assistance, even by free public
services if applicable and, if necessary, translation and interpretation, as well
as consular assistance, when required
ii)
In the case of an unfavorable decision, he must have the right to submit the case to
review before the competent authority, and to appear or to be represented before the
competent authorities for this purpose, and
iii) The eventual deportation may only be carried out following a reasoned decision in
keeping with the law, which has been duly notified.
134. Regarding the above, Article 22(8) of the American Convention established the
prohibition to deport or return an alien to “a country, regardless of whether or not it is his
country of origin” (in other words, his country of origin or a third State), in which “his right to
life or personal freedom” are “in danger of being violated because of his race, nationality,
religion, social status, or political opinions.”
135. Hence, if the preceding norms are complemented by the international corpus juris
applicable to migrants, it may be considered that, under the inter-American system, the right
of any alien, and not only refugees or asylees, to non-refoulement is recognized, when his life,
integrity and/or freedom are in danger of being violated, whatsoever his legal status or
migratory situation in the country where he is.159
136. Consequently, when an alien alleges before a State that he will be in danger if he is
returned, the competent authorities of that State must, at the very least, interview that person
and make a prior or preliminary assessment, in order to determine whether or not this danger
exists if he is deported.160 This entails respecting the said minimum guarantees, as part of the
opportunity to explain the reasons why he should not be expelled and, if this danger is verified,
he should not be returned to his country of origin or the one where the danger exists.
B.2.
The minimum guarantees of due process in proceedings to determine
refugee status and the principle of non-refoulement
137. The right to asylum has been specifically codified by regional treaties, starting with the
1889 Treaty on International Penal Law,161 and up until the adoption of the Convention on
Territorial Asylum and the Convention on Diplomatic Asylum, both in 1954.162 The adoption of a
series of treaties related to territorial and diplomatic asylum and non-extradition on political
159
According to expert witness Murillo, even countries such as Mexico, Argentina, Costa Rica and Nicaragua, in
order to give a precise normative content to Article 22(8), have adopted domestic laws that recognize complementary
protection to aliens who are not refugees, but who also need protection because they cannot be returned to their
country of origin or to a third country without this involving a risk to their life or their security based on any of the
conditions protected in the American Convention. Cf. Expert opinion provided by Juan Carlos Murillo before the InterAmerican Court at the public hearing held on June 20, 2012.
160
The Human Rights Committee has considered that no one can be extradited, deported, expelled or otherwise
removed from the territory of a State where there are substantial grounds for believing that there is a real risk of
irreparable harm to his or her rights, and without first taking into consideration their allegation on the existing risk. Cf.
Jonny Rubin Byahuranga v. Denmark, CCPR/C/82/D/1222/2003, United Nations Human Rights Committee, eightysecond session, 18 October to 5 November 2004, para. 11.3; Jama Warsame v. Canada, CCPR/C/102/D/1959/2010,
United Nations Human Rights Committee, 102nd session, 11 to 29 July 2011, para. 8.3.
161
Which prohibited extradition based on political offenses and established the right of States to grant asylum on
their diplomatic premises abroad. Cf. Treaty on International Penal Law signed in Montevideo on January 23, 1889, at
the First Congress on International Private Law, article 16.
162
Up until the Convention on Territorial Asylum and the Convention on Diplomatic Asylum, both of 1954, the word
“asylum” was used exclusively to refer to the specific mechanism of “political” or “diplomatic” asylum (in diplomatic
legations abroad), while the expression “refugee status” referred to the protection granted in the territory of the State;
this partly explains the dichotomy “asylees-refugees” and its implications for the protection of refugees.
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