Reparations for an Asylum Seeker Wrongly Imprisoned

This case concerns a man who fled persecution in his own country in West Africa after suffering severe human rights abuses, including torture.  Intending to seek asylum in a third country, he transited for a short time in Ecuador but was stopped at the border for using a false passport while attempting to leave.  Despite Ecuador’s obligations under the Refugee Convention and its own Constitution not to impose penalties on asylum seekers for illegal entry or presence in a country, the applicant was detained, then prosecuted and sentenced to two years imprisonment for use of false documents, without being given the opportunity to speak to an officer from the United Nations High Commissioner for Refugees or a human rights lawyer.  He was released from prison eight months later following a habeas corpus petition, but was not provided with reparation for the time wrongly spent imprisoned.   A subsequent claim to the provincial court to provide adequate and effective reparation was not successful, and an appeal was brought to the Constitutional Court.

On 6 April 2011 REDRESS provided a report to the Constitutional Court on international and comparative law concerning the prohibition on penalising those seeking asylum for use of false documents, the violation of human rights caused by imprisonment contrary to law, and the requirement to provide reparation for such a violation.  Looking particularly to the special circumstances of an alleged victim of torture detained contrary to law, it submitted that those circumstances would need to be taken into account in determining the nature of the reparation required by international law. 


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