relation to the guarantees established in Articles 8 and 25 of this instrument, as appropriate to
the administrative or judicial nature of the relevant proceeding in each case.
156. The 1951 Convention does not refer explicitly to the procedure to be followed to
determine refugee status, or the procedural guarantees. The UNHCR Executive Committee has
indicated “the importance of establishing and ensuring access consistent with the 1951
Convention and the 1967 Protocol for all asylum-seekers to fair and efficient procedures for the
determination of refugee status in order to ensure that refugees and other persons eligible for
protection under international or national law are identified and granted protection.”193 The
same standard was followed by the States parties to the 1951 Convention in their Declaration of
December 2001.194 In different resolutions, the General Assembly of the United Nations has
considered that applicants for asylum have the right to fair proceedings. 195 Meanwhile, the
European Court of Human Rights, in the case of Gebremedhin v. France defined the right to
asylum as a fundamental freedom, the corollary of which is precisely a person’s right to request
refugee status,196 which involves the right of applicants to be ensured a proper evaluation by
the domestic authorities of their applications, and of the danger they could face in case of return
to their country of origin.197
157. Hence, owing to the nature of the rights that could be affected by an erroneous
determination of the danger or an unfavorable answer, the guarantees of due process are
applicable, as appropriate, to this type of proceeding, which is usually of an administrative
character. Thus, any proceeding relating to the determination of the refugee status of a person
entails an assessment and decision on the possible risk of affecting his most basic rights, such
as life, and personal integrity and liberty. In this way, even if States may determine the
proceedings and authorities to implement that right, in application of the principles of nondiscrimination and due process they must ensure predictable proceedings, as well as coherence
and objectivity in decision-making at each stage of the proceedings to avoid arbitrary decisions.
158. Indeed, several Member States of the Organization of American States have incorporated
into their domestic law standards on refugees that are recognized in the 1951 Convention and
its 1967 Protocol, even based on guidelines established by UNHCR. Thus, the domestic laws of
193
Cf. Executive Committee of the United Nations High Commissioner for Refugees. Conclusions adopted by the
Executive Committee for the international protection of refugees. No. 71 (XLIV) (1993), para. i.
194
Cf. Declaration of the States parties to the 1951 Convention and/or the 1967 Protocol relating to the Status of
Refugees, adopted on 13 December 2001 in Geneva at the Ministerial Meeting of the States parties to the 1951
Convention and/or the 1967 Protocol relating to the Status of Refugees, operative paragraph 6.
195
Cf. United Nations, General Assembly resolution 52/132 Human rights and mass exoduses, 27 February 1998,
A/RES/52/132; United Nations, General Assembly resolution 49/169 Office of the United Nations High Commissioner for
Refugees, 24 February 1995, A/RES/49/169; United Nations, General Assembly resolution 45/140 Office of the United
Nations High Commissioner for Refugees 14 December 1990. The Committee against Torture has indicated the
importance of “regulat[ing] procedures for dealing with and deciding on applications for asylum and refugee status,
which envisage the opportunity for the applicant to attend a formal hearing and to make such submissions as may be
relevant to the right which he invokes, including pertinent evidence, with protection of the characteristics of due process
of law.” Concluding observations of the Committee against Torture: Venezuela, 05/05/1999. A/54/44, (Concluding
Observations), para. 147.
196
Cf. E.C.H.R., Case of Gebremedhin v. France (No. 25389/05), Judgment of 26 April 2007. Section II, para. 65.
197
“In the Court’s opinion, given the irreversible nature of the harm that might occur if the risk of torture or illtreatment alleged materialised and the importance which it attaches to Article 3 [of the European Convention], the
notion of an effective remedy under Article 13 requires independent and rigorous scrutiny of a claim that there exist
substantial grounds for fearing a real risk of treatment contrary to Article 3 and the possibility of suspending the
implementation of the measure impugned. Cf. E.C.H.R., Case of Jabari v. Turkey (No. 40035/98), Judgment of 11 July 2000.
Final, 10 November 2000, paras 50. The Commissioner for Human Rights of the European Council has indicated: “States
should ensure that all foreign nationals seeking asylum in their countries are in fact able to access asylum procedures
and benefit from a thorough, fair, individual examination of their claim.” Position Paper from the Council of Europe
Commissioner for Human Rights. Positions on the right to seek and enjoy asylum. Strasbourg, 24 June 2010. Available at
https://wcd.coe.int/ViewDoc.jsp?id=1640757.
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