A/HRC/37/50
(d)
Due process rights: States should enable migrants to claim international
protection and to challenge any decision as to their detention, treatment or deportation
before a competent, impartial and independent judicial or administrative body and in
an individualized, prompt and transparent proceeding affording essential procedural
safeguards, imperatively including accurate, reliable and objective interpretation
services.
(e)
Victims of torture: States should ensure that migrants having suffered
torture or ill-treatment: (a) are identified as early as possible through adequate
screening; (b) have access to an independent medical and psychological evaluation of
allegations of past trauma in accordance with the Istanbul Protocol, (c) have access to
adapted status determination proceedings taking into account their psychological
trauma; (d) receive redress, including as full rehabilitation as possible; (e) are not
deported to a State or territory where adequate rehabilitation services are not available
or guaranteed. Rehabilitation may require the tracing of and reunification with family
members, particularly for unaccompanied or separated children and other persons
with specific vulnerabilities.
(f)
Data collection and firewalls: States and other stakeholders working with
migrants should develop reliable systems of representative data collection with a view
to fostering a better understanding of the prevalence of victims of torture and illtreatment among various migrant populations, the cause and circumstances of such
abuse, the specific needs of the victims and their experience upon return. In doing so,
States should establish systems that effectively protect personal rights, including
firewalls between data collected for identification and protective purposes and data
collected for the purposes of law enforcement and criminal justice.
(g)
Training of officials: Officials or other persons tasked with the
determination of refugee status and/or entitlement to subsidiary international
protection should be appropriately trained in the conduct of the relevant assessments
and the identification and documentation of signs of torture and ill-treatment, and
should be aware that non-refoulement protection specifically against the risk of torture
and ill-treatment is absolute and non-derogable and applies to all migrants regardless
of their entitlement to refugee status, or of considerations of national or public security.
(h)
Non-refoulement: States should refrain from any individual or collective
deportation, transfer, or summary rejection of migrants without individualized risk
assessment, including through extradition or readmission agreements, diplomatic
assurances, border closures or "pushback" operations. Similarly, States should refrain
from instigating, encouraging, supporting or otherwise facilitating or participating in
"pullback" operations conducted by other States or non-State actors in violation of the
right of migrants to seek international protection.
(i)
Duty to prevent, investigate and prosecute: States should take effective
legislative, administrative, judicial or other measures to prevent any act of torture and
ill-treatment in any territory under their jurisdiction, including in connection with
migrant smuggling or trafficking, regardless of whether the perpetrators are State
officials, or criminals, or both. To that effect, States should investigate, prosecute and
punish any act of torture or ill-treatment, including attempts, complicity or other
participation, and should cooperate to that effect with other States and with relevant
international mechanisms and organizations.
(j)
Crimes against humanity and war crimes: More particularly, States and
the ICC-Prosecutor should examine whether investigations for crimes against humanity
or war crimes are warranted in view of the scale, gravity and increasingly systematic
nature of torture, ill-treatment and other serious human rights violations suffered by
millions of migrants in all regions of the world, as a consequence of corruption and
crime, but also as a direct or indirect consequence of deliberate State policies and
practices of deterrence, criminalization, arrival prevention, and refoulement.
20
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents