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have not been, nor are they currently, fully guaranteed in Germany, 6 France, 7 Greece, 8
Hungary 9 or Italy. 10
14. The American Convention on Human Rights recognizes, in its article 25, the
right to judicial protection, which safeguards the right to legal representation. That
right is protected by providing efficient and equitable legal assistance for those in
need. Article 8 of the Convention provides that all accused persons have the right to
defend themselves personally or to be assisted by counsel of their own choosing and
to communicate freely and privately with their counsel. The Inter-American Court of
Human Rights has found that “due process of law is a right that must be ensured to
all persons, irrespective of their migratory status”. 11
15. The Special Rapporteur stresses the fundamental role of NGOs, university legal
clinics and law firms that take on pro bono work, among others, in the legal
representation of migrants. Nevertheless, he recalls that this does not free the State
from its responsibility to provide free legal assistance and representation.
16. The protection of access to justice and its relationship to due process is
particularly relevant in cases of forced displacement and the determination of refugee
status. The risk of a person being returned to a place where his or her life or liberty is
threatened means that States must take particular account of these protections,
especially the principle of non-refoulement, in order to avoid violating the person’s
human rights. Although the Convention relating to the Status of Refugees of 1951
does not expressly establish a right to due process in the procedures for recognition
of refugee status, international human rights standards in the area of procedural
safeguards are applicable.
C.
The right to information and an interpreter
17. The right to information is essential for the exercise of other rights, including
access to justice. NGOs and international organizations provide information and raise
awareness among migrants regarding their right to access to justice through the
production and dissemination of explanatory materials on the rules that protect
migrants. Of note among such initiatives is the “Contratados.org” digital platform
created by Centro de los Derechos del Migrante (centre for migrant rights) to increase
transparency in the hiring of migrants. The Centre also conducts leadership
programmes to empower migrant workers in their demands for justice, through
community leaders who sit on migrant defence committees. Organizations such as the
Centre also advise migrants and connect them with networks of NGOs, lawyers and
public servants that provide legal support. 12 Often migrants are not properly informed
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8
9
10
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18-15902
European Union Agency for Fundamental Rights, Monthly migration report, December 2017.
Asylum Information Database, France (2017), available at http://www.asylumineurope.org/
reports/country/france/asylum-procedure/guarantees-vulnerable-groups-asylum-seekers/ageassessment.
AITIMA, Greece (2017), Asylum seekers on hold: Aspects of the asylum procedure in Greece,
April 2017; see also European Court of Human Rights, M.S.S. v. Belgium and Greece.
Asylum Information Database, Hungary (2017), available at http://www.asylumineurope.org/
reports/country/hungary/asylum-procedure/procedures/regular-procedure # footnote19_nj2htk4.
Centro operativo per il diritto all’asilo, Diritto di asilo. Regole ed eccezioni nella prassi della
Pubblica Amministrazione: Il monitoraggio di Coda sul territorio di Roma , October 2015, p. 24;
Asylum Information Database, Country Report Italy, 34.
Inter-American Court of Human Rights, Advisory Opinion 18/03 of 17 September 2003 on the
juridical condition and rights of undocumented migrants, para. 121; see also Inter -American
Court of Human Rights, Nadege Dorzema et al. v. Dominican Republic, Judgment of 24 October
2012.
Submission by Centro de los Derechos del Migrante.
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