Case Watch: Inter-American Court to Consider Refugee Status Determinations

In our “Case Watch” reports, lawyers at the Open Society Justice Initiative provide quick-hit analysis of  notable court decisions and cases that relate to their work to advance human rights law around the world.

At the end of February, the Inter-American Commission on Human Rights referred a case to the Inter-American Court which raises, for the first time before the court, the issue of a state’s obligation to give proper consideration to requests for asylum and not to return a person to a country where they would be at risk of ill-treatment—the principle of non-refoulement.

The case involves the Pacheco Tineo family, a family of Bolivian origin with three children who had been living legally in Chile with refugee status. (Mr Pachecho Osco is a survivor of the Castro Castro prison massacre in Peru and he and his wife had been imprisoned there for three years.) They entered Bolivia legally in February 2001 and asked for permission to live there, providing details of their recognition as refugees. Nevertheless, according to the commission's admissibility decision, the Bolivian authorities arrested them and forcibly removed them to Peru where the authorities detained the parents as suspected terrorists before eventually releasing them.

Before their removal from Bolivia, Mr. Rumaldo Juan Pacheco Osco requested that the Bolivian authorities grant his family refugee status as they would be at risk back in Peru. However, the Bolivian authorities rejected this request. The Inter-American Commission found that this decision was taken summarily—the request was rejected in just a few hours—and without the guarantees of due process. It thus concluded that Bolivia was responsible for violating the right to mental integrity, the right to seek and be granted asylum, the non refoulement principle, and the right to judicial guarantees and judicial protection. However, Bolivia failed to comply with the commission’s recommendations, and the commission therefore referred the case to the Inter-American Court of Human Rights.

Procedural guarantees for asylum-seekers have been the subject of several recent judgments of the European Court of Human Rights, so it will be interesting to monitor how the Inter-American Court approaches this first opportunity to examine requests for recognition of refugee status and first contentious case regarding the non-refoulement principle. After the European Court’s Grand Chamber judgment in M.S.S. v Greece, the court held last month, in I.M. v France, that these guarantees were not satisfied by a national procedure under which a right of appeal did not suspend removal. And in Hirsi v Italy, the European Court extended procedural guarantees to persons intercepted on the high seas. Due process is of crucial importance when it comes to determinations of the status of individuals—be they refugees seeking recognition of that status, or individuals seeking recognition of their nationality, citizenship or residency rights—especially as such persons often find themselves in vulnerable positions because of their lack of formal legal status.

I’d like to thank the Corte IDH Blog for bringing this case to our attention. The blog has become an invaluable source for monitoring important developments in the Inter-American Commission and Court, especially as decisions of the court are often available only in Spanish when first delivered. But the concise summaries on Corte IDH Blog and the wonders of Google Translate provide a great service to the linguistically-challenged amongst us. They celebrated their first birthday this month, and I’d like to wish them both a happy birthday and a long, productive life.