Right to Asylum in
the
and comparative
solutions in the region of
Analytical
report
Serbian
Refugee Council
Author:
Vladimir
Petronijević (Group 484)
Introduction
The
document before you aspires to comprehensively meet the challenge of analysing the
existing condition in the field of asylum protection in the
In the
absence of the law which would establish the refugee status determination procedure,
as well as of the organs which would participate in the procedure and the scope
of rights guaranteed to asylum seekers and persons who have been granted the status,
the activity of the UNHCR in this field is presented.
I Present condition
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On its
way to European integrations, |
The general
impression is that stakeholders in
The EU is also
monitoring the reform policy in this field, carried out in the countries
potential membership candidates. The very Agreement on Stabilisation and
Association will also contain the provisions related to this issue, also
present in the agreements signed by
The issues of
asylum protection and the status of aliens are necessary to observe in the
context of European integrations of
|
The
process of developing migration management policy remains in the very early
stages. Ultimately, the policy should incorporate a clear position
of the state and accompanying legislation in accordance with universal
and European standards in the fields of asylum protection, the protection of
refugees and internally displaced persons, the status of aliens and visa
policies, the conclusion and implementation of readmission agreements,
border control and illegal migration. |
“The
constitutional dispute on the division of competences affects the timely
adoption of legislation in this field.
Special
attention is also focused on the issue of readmission, where positive
development is noted. Thirteen agreements with fifteen countries have been
signed and implemented. The process of signing further readmission agreements
has slowed down compared with the period before March 2003.[4]
The slowed-down activity of the state in this field is a possible reason for
tightening the visa regime of
The Report of the European Commission on the Preparedness of Serbia and Montenegro to Negotiate a Stabilisation
and Association Agreement with the European Union notes that determining competences between
the State Union and member countries is still problematic in regards to the
policies of visa, asylum, migration and integrated border control.
The Report on Stabilisation and Association for SaM for 2005 states
that there have not been any improvements related to the adoption of the Republic
Laws on Asylum necessary for implementation of the law adopted at the State
Union level. It also states the absence of the capacities necessary for the
reception of asylum seekers. “There is only one reception centre in
National Strategy of Serbia for the Serbia and Montenegro’s Accession to
the European Union in the section 4.5.2.2. Migration, states
the obsolescence of the regulations related to the status of aliens and the
lack of legal regulations in the field of asylum protection. “Being a transit
country for migrants from Asia and Africa towards the European Union,
The Council Decision of January 30, 2006, on the principles priorities and conditions contained in the
European Partnership with Serbia and Montenegro including Kosovo as defined by
the United Nations Security Council Resolution 1244 of 10 June 1999 and
repealing Decision 2004/520/EC, defines the issues of visa, border control, asylum and migration as short-term
priorities, where the European Union once again emphasised
the need for fast and efficient reforms in this field.
“Develop a State Union-level approach to issues
related to visas, asylum and migration in line with the Constitutional Charter,
notably through the complete harmonisation of the visa regimes applied in the
Republics. Put in place mechanisms to monitor the consistent implementation of
these policies at the level of the Republics.
Adopt the
Asylum Laws in both Republics and proceed with the conclusion and
implementation of readmission agreements. In
On April 7,
2006, the Government of the
In regards
to refugees and internally displaced persons, within the chapter IV, Regional
Issues and International Obligations, the subparagraph 4.1.9. defines ensuring
adequate cooperation between the State Union and Member States as regards the
legislative basis for and practical protection of the rights of refugees and
internally displaced persons as short-term priorities, by building relevant
administrative capacities with the foreseen sum of 1.2 million Euro, where the
activity will be realised in the period August 2005 - October 2006. The
short-term objective is also ensuring right of a real choice between
sustainable return and integration, as well as contributing to ensuring the
implementation of the Sarajevo Declaration for sustainable return. The adoption
of the changes and amendments of the Law on Refugees was foreseen for the fourth
quarter of 2006[10], and
the amendment of the National Strategy on Refugees and Internally Displaced
Persons was planned for the second quarter of 2006. The lack of financial means
is emphasised as the biggest obstacle for the realisation of these objectives.
In 2004, the
UNHCR, OSCE and European Commission missions to
The
task force established to assist with the regional process has had some
success in resolving technical issues; however, the road maps have not
been finalised in a timely fashion. The deadline of 2006 for resolution
of all refugee issues is becomingly increasingly unrealistic.
However, the Sarajevo Declaration represents a unique opportunity to address
not only issues of refugee return, but also of local integration. As
concluded by the European Commission, after more than a decade refugee files
could be permanently closed.[11]
II Policies and legislation
Field of asylum protection
Within
the Stability Pact of the Southeast Europe, as a part of the MARRI programme (Migration, Asylum, Refugee Regional
Initiative) a Regional Programme of Action was presented at a summit held
in Thessalonica, on June 21, 2003, for the countries of Western Balkans, which
contained the solutions for better migration management and problems of asylum,
for return of refugees, integrated border control and establishing an
acceptable visa regime in the region. This regional Programme of Action was the
result of a six-month work and joint activities of representatives of Western
Balkan countries, other member states of the Stability Pact, representatives of
the European Commission and other relevant international organisations. This
programme is fully complementary with the Stabilisation and Association Process which is in different
implementation phases in countries of Western Balkan.
The
main characteristics of this Regional Plan of Action are as follows:
-
Switching the focus from the humanitarian
approach to solving refugee problems to integrated approach to citizenship;
-
Establishing instruments for the
control of illegal migration and establishing free flaw of people and goods;
-
Establishing Integrated Border Management.
The Regional Plan of Action is
fully complementary with the basic principles of the EU asylum system, adopting
both its good sides and weaknesses. On 45 pages, there are strategic and
operational goals which should be individually realised by counties of Western
Balkans, adopting their own National Plans of Action, with the support of the
European Commission and CARDS programme.
The
adoption of National Action Plans in countries of Western Balkans is only the
first step towards harmonisation of their systems of migration management with
that of the European Union. The subject of concern in this regards is the fact
that the adoption of Regional Plan of Action (as well as national plans) was
not preceded by the assessment of the conditions and technical and human resources
in these countries.
In
the domain of harmonisation of asylum rights, Regional Plan of Action sets the
following as its priorities:
-
same standards for reception of asylum seekers;
-
access to legal assistance;
-
obligation to accept the admission of persons who fail to meet the conditions
for regulating their status in the countries in which they illegally reside (bilateral
readmission agreements not only with the EU countries but also with the
countries in the region);
-
obligation for providing conditions for integration of persons who have been granted
asylum, refugees and internally displaced persons;
-
creating conditions for special protection of women and children asylum
seekers;
-
realisation of the principle of family reunion.
One of the
aims of harmonisation according to Regional Plan of Action is the introduction of
a uniform, just and efficient procedure for examining asylum claims, which
would be applied to the persons fulfilling conditions for granting protection according
to the Geneva Convention, as well as for asylum seekers fulfilling conditions
for granting temporary protection or humanitarian protection. Temporary protection
should be granted only in cases of exodus of a large number of people due to
violence which is not focused on a certain national, racial, religious and
social group, as a result of external aggression, inner conflicts, systematic violation
of human rights and other circumstances which are seriously jeopardising public
order in the country of origin. According to the EU standards, the second
category encompassing persons enjoying temporary protection are those who left
their country of origin due to well-founded fear of torture, humiliation and
inhuman behaviour or violation of other basic human rights.
The
programme particularly emphasises the education of professional services, administrative/police
and court organs for implementing new and harmonised standards. Unfortunately,
Balkan countries have not only the problem of the legal framework, but also of exceptionally
poor human resource capacities in the services, mainly police, that decide upon
the right to asylum, the lack of basic institutional and technical capacities, as
well as the lack of training centres for employees.
|
The
current factual situation in the Balkan countries often implies the cases of unpenalised
deportation (refoulement) of asylum
seekers, inadequate conditions for reception of persons in the
procedure of seeking asylum, and in case of manifestly unfounded claims, the applicant does not have the
right to appeal to the first instance decision with the suspensive effect. If
the domestic legislation does not ensure the right to appeal to the first
instance decision, in the procedure before an independent, preferably
judicial organ, various possibilities for refoulement
are opened. Having in mind all that, it is difficult to imagine that in
the relatively short period it is possible to realise a harmonised
implementation of procedures related to asylum with the respect of basic
human rights of asylum seekers, without intensive international cooperation
in this field. |
The
conditions for reception of asylum seekers and ensuring the minimum
socio-economic rights until the decision about the claims have been made are
also of an utmost importance. It is very important to ensure the minimum
standards for all the countries members of the Council of Europe, not only the
EU countries or the countries in the process of accession, but the standards
that will be accepted by all the countries in Europe, and which will be based
on harmonisation of minimum principles providing dignified and humane living
conditions for asylum seekers and their families. Many European countries, not
only the countries of the Western Balkans but also the EU countries, are
lacking procedural guarantees for asylum seekers related to free legal
assistance; they limit their freedom of movement, completely deny the right to
social care and protection, the right to health care, apart from the right to
urgent medial help, hinder education (including foreign language learning) for
asylum seekers aged sixteen and over, discriminate children of asylum seekers
in regards to the quality of education, they do not have legal guarantees for
special forms of psychosocial support for asylum seekers victims of torture and
abuse in the country of origin, and physical guarantees for women in joint
reception centres.[12]
In
regards to the protection of children and women, having in mind the fragility
of the region of the Western Balkans which is the transit spot for human
trafficking, the lack of additional guarantees in the procedure of seeking
asylum on the request of women and children asylum seekers, especially the
unaccompanied minors is a special cause for concern. In this regards, the
adoption of recommendations from the EU
Resolution on unaccompanied third-country national minors into the laws of
the countries in the process of accession to the EU or those still in the phase
of accession negotiations would be recommendable, where the unaccompanied
children cannot be deported to the safe third country.
Regarding
the decision on termination of refugee status, above all the implementation of
the Provision 1 (c) of Geneva Convention, and when there is no need for
international protection from persecution, it is recommendable to seek an opinion
from the UNHCR whenever this provision is implemented. For now, countries
arbitrarily decide on the conditions for termination of protection. The
standard should be the same as in the procedure of granting asylum, including
the suspensive right to appeal, interrogation of the person in question, and the
right to free legal assistance. The refugees who have strong family, economic
or social bonds with the country which has granted them asylum should have the
right to permanent residence in that country, in accordance with Article 34 of
Geneva Convention saying that the country is obliged to ensure conditions for
assimilation and naturalisation of refugees.
Regardless
of the first positive steps made in the early 1990’s towards liberal and humane
conditions for reception and refugee status determination primarily in the
countries of the former
We
believe that in the process of harmonisation of legislations and practices of
the countries of the Western Balkans with the EU standards, the following
conditions have to be fulfilled: reaching consensus regarding the criteria for determining
a «safe country» and establishing a common list of safe countries, ensuring security
risk assessment in each individual case, ensuring minimum socio-economic rights
of asylum seekers, ensuring the right to legal remedy against the decision
transferring their claim to the safe third country, as well as the minimum
standards of protection in the procedure of deportation to safe third countries
and the quality process guarantees and transparency of the very procedure.[13]
|
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Serbia’s neighbours already have their well-defined
systems of asylum protection in place, more or less harmonised with the
European standards: Law on Asylum of the Republic of Croatia adopted on June 18,
2003; Law on Movement and Stay of Aliens and Asylum of Bosnia and Herzegovina
adopted on July 18, 2003; Law on Asylum and Temporary Protection of the
Republic of Macedonia adopted on July 16, 2003; Law on Asylum of the Republic
of Albania, adopted on December 14, 1998; Law on Asylum of the Republic of
Bulgaria adopted on May 16, 2002; Law on Status and Regime for Refugees of the
Republic of Romania adopted on April 5, 1996. The Assembly of Montenegro
adopted its Law on Asylum on July 10, 2006.
Law
on Asylum of SaM, which is now implemented in the
The
Constitutional grounds for passing the Law on Asylum is encompassed in the
provision of Article 19, Indent 8 of the Constitutional Charter of the State
Union of Serbia and
The right
to asylum is guaranteed in the Constitutional Charter, in the Article 38,
Section 2 of the Charter on Human and Minority Rights, stipulating that “every
alien who has a well-founded fear of persecution because of his/her race,
complexion, sex, language, religion, ethnicity, membership in particular social
groups, or political opinion shall have the right to refuge.” Article 50, Section 2 of the Constitution of Serbia specifies that “The
right to asylum shall be guaranteed to a foreign citizen and stateless person
who is being persecuted for supporting democratic views and participating in movements
for social and national emancipation, for human rights and freedoms, or for the
freedom of scientific or artistic creativeness”.
|
“Constitutional Charter, as noted in the National
Strategy for SaM Accession to the EU, goes beyond the 1951 UN Convention relating
to the Status of Refugees in that it provides for protection of persons
persecuted in grounds of their sex, complexion and language which is not
envisaged in the Convention as a basis for granting asylum status. It is
stipulated, though, both in the Constitutional Charter and Serbian Constitution
that the asylum system will be regulated by a separate law.”[14] |
In order to
regulate this matter, the domestic legislation should not only encompass the
solutions from the Un Convention relating to the Status of Refugees, but also
the solutions from other documents on human rights related to refugees, such as:
Un Universal Declaration of Human Rights, Convention for the Protection of
Human Rights and Fundamental Freedoms, European Convention for the Prevention
of Torture and Inhuman and Degrading treatment or Punishment, UN Convention on
the Rights of the Child, UN Convention on the Elimination of all Forms of
Discrimination against Women, etc. Special attention should be paid to various
documents of relevant organs of the Council of Europe, European Union, as well
as the recommendations of the UN High Commissioner for Refugees Executive
Committee (UNHCR).
One of the
internal regulations which partially incorporated this Convention was the Law on Movement and Stay of Aliens. However,
this law was not completely in accordance with the aforementioned Convention
and its Protocol, as well as the international standards of human rights. From
the moment the Constitutional Charter had been adopted, Law on Movement and
Stay of Aliens could no longer present the legal grounds for granting refugee
status in
During the
last decades in
|
Law on
Asylum of SaM determines basic principles in the policy of granting asylum.
After the Law had been passed, the member countries were and are obliged to
adopt their laws regulating the granting asylum procedure, determine the
organs responsible for asylum claims and specify a concrete scope of rights guaranteed
to the persons who have been granted asylum in |
Interestingly
enough, the Plan for Implementation of
European Partnership o the Government of the
Regarding
the lack of expertise and professional experience, the Ministry of the Interior
should present to the public where are all those employees of the Ministry who
have attended the trainings organised by the UNHCR Belgrade Office in the
previous period
The analysis of the Law on Asylum of SaM
The Law on
Asylum of SaM follows the standards and principles established by the
international documents: UN Convention relating to the Status of Refugees of 1951
and its Protocol of 1967.
Asylum as a
legal institute is defined as the right to reside and receive protection given
to a person to whom refugee status has been granted by the competent body that
has passed a decision on his/her application for asylum in Serbia and
Montenegro or to a person who has been granted other forms of protection
prescribed by this Law (Article 2).
According
to the principle of family unity from
Article 8 of the Law, the person who has been granted the refugee status has
the right to family unity, and he/she will share the refugee status with the
members of his/her family. The Convention relating to the Status of Refugees of
1951 does not encompass the principle of family unity. However, this principle
is incorporated in the Final Act of the Conference. The Final Act foresees that
the unity of the refugee’s family is maintained particularly in cases where the
head of the family has fulfilled the necessary conditions for admission to a
particular country. Moreover, this principle is encompassed in the Universal
Declaration on Human Rights where “the family is the natural and fundamental
group unit of society and is entitled to protection by society and the
State”. The laws of the member states
will specify more precisely the circle of persons making the family of a
refugee and having the right to family unity.
The
principle of confidentiality from Article 7 of the Law is
related to personal information related to individual asylum claims. The
principle is derived from the right to privacy as one of the fundamental human
rights, inherent in Article 8 of the European Convention on Human Rights and
Fundamental Freedoms, as well as in the European Convention on the Protection
of Individuals with Regard to the Automatic
Data Processing.
The obligation of cooperation of competent organs with the UN High
Commissioner for Refugees, foreseen in Article 11 of the Law
is inherent in Article 35 of the Convention relating to the Status of Refugees
where all contracting states are obliged to cooperate with the UN High
Commissioner for Refugees or any other agency of the United Nations which may
succeed it, in the exercise of its functions, and shall in particular
facilitate its duty of supervising the application of the provisions of this
Convention. The cooperation foreseen in this Law among other things implies
free access to information, statistical data, personal dossiers of asylum
seekers and is an exception in regards to the principle of confidentiality (Article
7). The obligation of cooperation with the UN High Commissioner for Refugees
has also been incorporated in the legislations of all the EU courtiers, as well
as the candidate countries.[15]
In that way, all relevant organs, as well as nongovernmental organisations in a
country are familiarised with this obligation and the UN High Commissioner for
Refugees is enabled to act in accordance with its mandate.
Article 12
of the Law foresees that, as a rule, the person seeking asylum will not be imposed
penalties for illegal entry and residence,
provided that he/she submits claim for granting asylum as well as valid reasons
for his/her illegal entry or residence. The words ‘as a rule’ leave open the
possibility for the person to be penalised for an illegal entry or stay if
he/she has obviously misused the asylum claim for other perpetration. The
provision on not imposing penalties to asylum seekers for illegal entry or stay
is inherent in Article 31 of the Convention relating to the Status of Refugees.
However, the Law, in accordance with the contemporary development of the
refugee law, offers wider protection to these persons. According to the Section
2 of the same Article, the person seeking asylum will be deprived of his/her
freedom only when necessary and prescribed by the law. According to the
position of the UNHCR Executive Committee the detention measures should be
applied only when necessary and out of the reasons prescribed by the law, such
as: determining identity, determining elements upon which the claim is based,
in cases when the person has used false identification documents to enter a
country, as well as for the purpose of the protection of national security or
public order.
Article 16
of the Law, related to “removal of a
person who has not been granted asylum’’, stipulates that an alien whose
application for asylum has been refused after a final decision is obliged to
leave the country and failing this, he/she will be expelled.
According
to Article 31 of the Convention relating to the Status of Refugees, Article 17
of the Law, “Expulsion of refugees”, stipulates
the refugees lawfully residing in
The
Provision of Article 18 of the Law, “Rights
of refugees”, stipulates the minimum rights enjoyed by the person who has
been granted refugee status in
The persons
seeking asylum in
Article 20
of the Law related to “integration’’
stipulates the obligation of integration of refugees into the social and economic life of the country,
within the current socio-economic potential, as well as of an efficient
procedure for acquiring citizenship in accordance with the law. This obligation
of integration follows Article 34 of the Convention relating to the
Status of Refugees, and the laws of the member states will further elaborate
the contents of this provision.
A special
chapter is related to the protection of
asylum seekers and refugees with special needs, (Articles 24-26), such as minors, children separated from parents or
guardians, disabled persons, elderly persons, pregnant women.
Article 22
of the Law defines that the temporary protection may be granted, in accordance with the law,
in the case of a mass influx of persons from a country where their life, safety
or freedom is threatened by general violence, foreign aggression, internal
conflict, massive violation of human rights or other circumstances seriously
affecting public order, and when, due to the mass influx, it is not possible to
conduct the individual refugee status determination procedure.
According to Article 23 of the Law, humanitarian protection shall be
granted to a person who has fulfilled the conditions for granting refugee
status and who would be, in case of return, subjected to torture or inhuman or degrading
treatment, or whose life, safety or freedom would be threatened by general
violence, foreign aggression, internal conflict, massive violation of human
rights or other circumstances seriously affecting public order. According to
the principle of subsidiary protection (Article 4), the decision on
humanitarian protection is made by the competent body deciding on an asylum
application when it is established that the person in question does not fulfil
the conditions for being granted refugee status.
The legal
grounds for humanitarian protection can be found in Article 3 of the European
Convention on Human Rights and Fundamental Freedoms which foresees that “no one
shall be subjected to torture or to inhuman or degrading treatment or
punishment”. The position of The European Court for Human Rights is that
Article 3 of this Convention applies also on this category of rights which
cannot be derogated.
In regards
to determining bodies competent to grant
asylum, which is probably its biggest shortcoming, the Law has only one
general provision (Article 9) stipulating that the asylum claims will be decided on by the competent body of the
member state in question. According to Articles 9 and 21, an appeal against the
decision of the competent body can be lodged with the competent second instance body of the member
state in question that is independent of the organ having passed a
first-instance decision. The laws of the member states will stipulate more
precisely the competent first and second instance organs and prescribe the
procedure. For example, in some countries the second instance organ is the
administrative organ or the court.[16]
Regardless of the adopted solution and according to the international
standards, the national legislation should ensure that the second instance
organ is independent from the first instance organ.
The Law
contains the collision provision (Article
10) which prevents the conflict of jurisdictions between competent organs of
the member states. According to this provision, the jurisdiction of the body of a member state for assessing asylum
applications will be established on the basis of the point of entry of the
applicant at the state border and in the case of asylum applications submitted
inside the country, it will be decided on the basis of the point of
application.
The section
“Basic principles” (Articles 4 to 8)
contains basic principles in the procedure of granting asylum and they are: the
principle of subsidiary protection, the principle of non-discrimination, prohibition of
expulsion or return, confidentiality and family unity.
The
principle of subsidiary protection, of Article 4 of the Law stipulates that when the
competent body deciding on an asylum application establishes that the person in
question does not fulfil the conditions for being granted refugee status, it
will assess ex officio whether there are conditions for granting another form
of protection prescribed by this Law. This solution has been adopted by some EU
countries (Sweden, The Netherland, Finland and the United Kingdom), and the
study carried out in the European Union has shown that the countries which are
implementing the common procedure in which one organ examines and decides about
all possible grounds for protection are more efficient, the procedure in these
countries is faster, and the quality of decision better. Therefore, on July 15,
2004, the European Commission compiled recommendations to the Council of
Ministers and the European Parliament for introducing a common procedure as the
next step in the asylum policy of the EU.
The
principle of non-discrimination of Article 5
of the Law foresees that in the
process of granting asylum no one will be discriminated against on any grounds
whatsoever, especially on the grounds of race, colour, sex, ethnic background, social
origin or similar status, birth, religion, political or other opinion. As we have
already emphasised, the principle of non-discrimination was defined more widely
than the same principle of Article 2 of the Convention relating to the
Status of Refugees where a person is not discriminated on the grounds of race,
religion, and the country of origin, incorporating elements from Article 14 of
the European Convention on Human Rights and Fundamental Freedoms, the prohibition
of discrimination on grounds of “ethnic background’’, “sex” and “political
opinions”.
The
Convention relating to the Status of Refugees of 1951 does not encompass the
right to asylum, but this right is incorporated in the Universal Declaration on
Human Rights in Article 14, stipulating that “everyone has the right to seek
and to enjoy in other countries asylum from persecution”. The Law encompasses a
wider concept of asylum which includes other forms of protection (temporary and
humanitarian) in accordance with the Recommendation of the High Commissioner
for Refugees that a liberal policy of granting asylum should be carried out, in
the spirit of the Universal Declaration on Human Rights. Such concept of asylum
has been accepted by the majority of the EU countries.
The meaning
of the term refugee from Article 2
of the Law (“a person who, due to a well-founded fear of persecution on the
basis of his/her race, religion, nationality, membership of a particular social
group or political opinion, is outside his/her country of origin and is not
able, or due to the above-mentioned fear, does not wish to avail
himself/herself of the protection of this country, as well as a stateless
person who is outside the country of his/her previous residence and who cannot,
or due to the above-mentioned fear, does not wish to return to that country’’) is
taken from the Convention relating to the Status of Refugees of 1951. According
to the Convention, a person becomes a refugee as soon as he/she fulfils the
conditions from the definition, before his/her status has been granted by the
competent organ of that country. Therefore, apart from the term refugee, the
Law encompasses the concept of a person who has
been granted refugee status (Article 2), an alien on the
A
well-founded fear of persecution is the key
element of the definition of the term of refugee, containing the subjective element
– fear, and the objective element – well-foundedness. In defining the refugee
status, the starting point is the assessment of the statement of the asylum
seeker which has to be supported by certain objective circumstances, i.e. the
conditions in the country of origin. The grounds for persecution are
precisely listed, and it is the persecution on grounds of race, religion,
nationality membership of a particular social group or political opinion. The
next condition for granting the refugee status is that a person is out the country of
origin. It is not necessary that
the person has left the country of origin on the grounds of fear from
persecution, but the person can subsequently ask for the recognition of his/her
refugee status, if the circumstances in his/her country change during his/her
absence (refugee sur place). The last condition is that the person is not able, or due to the
above-mentioned fear, does not wish to avail himself/herself of the protection
of the country of origin. The
inability to avail of the protection implies that the circumstances are not appropriate
for that person (i.e. civil war or other problems in the country of origin). For
a stateless person it is required that he/she is outside the country of his/her
previous residence and he/she cannot, or due to the above-mentioned fear, does
not wish to return to that country.
According to Article 15 of the Law (“refusing refugee status”), the refugee
status shall not be granted to a person with respect to whom there are serious
reasons for considering that: 1) he/she has committed a crime against peace, a
war crime or a crime against humanity, according to the provisions of
international documents drawn up for the purpose of preventing such crimes; 2)
he/she has committed a serious non-political crime outside Serbia and
Montenegro prior to entering the country; 3) he/she has been responsible for
acts contrary to the purposes and principles of the United Nations.
International grounds for refusing the refugee status is included in Article 1F
of the Convention relating to the Status of Refugees, as well as Article 14,
Section 2 of the Universal declaration on Human Rights stipulating that the
right to asylum “may not be invoked in the case of prosecutions genuinely
arising from non-political crimes or from acts contrary to the purposes and
principles of the United Nations.”
Article 21
of the Law “cessation of refugee status”
foresees the reasons for the cessation of the refugee status of the person who
has been previously granted the same status. These reasons, incorporated in
Article 1C of the Convention are related to certain circumstances considered to
be cause for the cessation of the international protection. The circumstances
are the following: 1) if a person has
voluntarily re-availed himself/herself again of the protection of the country
of origin; 2) if a person has voluntarily re-acquired the citizenship
which he/she previously lost; 3) if a person has acquired a new nationality, and
thereby enjoys the protection of the new state; 4) if a person has voluntarily re-establish in
the country he/she has left or has stayed outside of on account of fear of
persecution or ill-treatment, or 5) if a person can no longer continue to refuse
to avail himself/herself of the protection of his/her country of origin,
because the circumstances on account of which he/she has been granted
protection have ceased to exist. However, the refugee status does not
cease ex lege with the appearance of some of the aforementioned
circumstances, but by the decision of the authorised organ of the member state.
The appeal against this decision can be filed to the organ independent from the
first instance organ.
According
to the Law, other forms of protection of asylum seekers are temporary protection (Article 22) and humanitarian protection (Article 23).
Temporary protection may be
granted in the case of a mass influx of persons from a country where there is
general violence, foreign aggression, internal conflict, where it is not
possible to conduct the individual refugee status determination procedure.
The protection lasts until the circumstances that forced this person to leave
the country of origin have changed (this kind of protection was offered by the
countries of Western Europe to the persons fleeing from conflicts in the former
Yugoslavia at the beginning of the nineties of the last century). Temporary
protection is not foreseen by the Convention relating to the Status of
Refugees, but the countries of Western Europe have accepted the concept upon
recommendations of the High Commissioner for Refugees. In their laws the member
states will determine the organ competent for granting temporary protection.[17]
|
Unfortunately,
although it follows the international standards, this Law does not have a
practical value since it is lacking an appropriate procedure for granting
asylum. There is a general concern that, due to the unsolved relations
between member states, the republic laws will not be appropriately harmonised
in order to guarantee:
|
Review of certain legal solutions in the field of
asylum in the region of Southeast Europe
Having in
mind the fact that the countries from the region of Southeast Europe already have
well-defined asylum protection systems, their legal solutions will be of
outmost value for the legislators in Serbia and Montenegro.
This short
review will be primarily dealing with the procedures for granting asylum, the
organs participating in the procedures, as well as the scope of rights guaranteed
to asylum seekers and persons who have been granted the refugee status.
Law on Asylum of the Republic of Albania
This Law was
adopted on December 14, 1998.
The Law fulfils
the requirements of the Convention relating to the Status of Refugees of 1951
and its Protocol of 1967, related to the determination of the refugee status,
grounds for the termination of the status and deportation, prohibition of penalisation
in case of illegal entry, the principle of non-refoulement
and family unity.[18]
In regards
to the scope of guaranteed rights, Article 12 emphases that a refugee also
enjoys “all rights stipulated in other relevant international treaties the
Republic of Albania is party to”. However, in the second Section of the same
Article, the Law is more concrete, stipulating the right of a refugee to a
special residence permit and a work permit, social assistance to the same
extent as an Albanian national. It is unclear why the Law has not specified
other refugee rights such are the right to accommodation, access to education
and the freedom of religion.
The organs
participating in the procedure for granting asylum are: Office for Refugees as
the first instance organ and National Commission for Refugees as the second
instance organ. They are both administrative organs which points to the fact
that the court does not participate in the procedure. The established standards
in the comparative law specify that the first instance and second instance
organs must be independent from each other. The Law does not contain explicit
provisions related to who nominates the National Commissioner as the Head of
the Office, but the Section 7 of Article 18 stipulates that the National
Commissioner for Refugees is guided by the guidelines provided by the
respective Minister. The second instance organ is the National Commission whose
members are nominated by the Ministries, Department of National Security, the
Albanian Helsinki Committee and the Albanian Bar Association.
Article 27
foresees that the Office for Refugees shall take a decision within 30 days from
the day of the hearing of the asylum seeker, and if the decision is not served
within 51 days, the application is considered rejected. The appeal against the
decision of the Office for Refugees shall be addressed to the National
Commission for Refugees within 15 days from the date the decision is received
by the asylum seeker. The National Commission for Refugees shall take its
decision at the latest 45 days from the day the appeal was filed, which is then
final.
The
principle of “safe third country” and “manifestly unfounded claim” are parts of
Article 28 of the Law. The accelerated procedure is also applied if: it is established
that the statement of asylum seeker is false and when there is an intention to deceive
relevant organs, if their claims do not correspond with the criteria for
granting asylum, if the asylum seeker comes from the third country, the signatory
of the Convention relating to the Status of Refugees and its Protocol, where there
is not a well-founded fear of prosecution and if the refugee cannot be legally
returned to the country where his/her asylum claim will be examined in
accordance with international standards. The Office for Refugees is obliged to reach
the decision on the procedure within 10 days, and the deadline for the appeal
is 7 days upon the decision.
The Law on Movement and Stay of Aliens and Asylum of
Bosnia and Herzegovina
This Law
was adopted on July 18, 2003, followed by the Provision on Asylum of June 2004.
The Law fulfils
the requirements of the Convention relating to the Status of Refugees of 1951
and its Protocol of 1967, related to the determination of the refugee status,
grounds for the termination of the status and deportation, the principle of non-refoulement and family unity.[19]
Refugees
will not be penalised for illegal entry and they are guaranteed the right to
freedom of movement, accommodation, education, social protection, personal
documents, information protection, and contact with the UNHCR.[20]
Refugees
are given the opportunity to follow the course of the procedure through an
interpreter, and if possible, women will be provided women interpreters. [21]
Article 32 of
the Provision is the example of the most comprehensive list of support to the
rights of refugees: the right to primary health care, accommodation in the
asylum centre, food according to the most contemporary standards, elementary
education, legal assistance, social protection, clothing, footwear, hygienic
items.
Asylum
claim is submitted to the organisational unit of the Ministry of Security of
BiH, to its Seat Office. The claim is examined by the organisational unit for
asylum. The decision on the application is final with the possibility for
administrative dispute.[22]
Law on Asylum and Temporary Protection of the Republic
of Macedonia
Law was
adopted on July 16, 2003.
The Law fulfils
the requirements of the Convention relating to the Status of Refugees of 1951
and its Protocol of 1967, related to the determination of the refugee status,
grounds for the termination of the status and deportation, the prohibition of penalisation
in case of illegal entry, the principle of non-refoulement
and family unity.[23]
The Law
stipulates the concepts of “safe country of origin” and “safe third country”.
Certain rights of the Convention relating to the Status of Refugee and its Protocol
are incorporated, such as: accommodation, financial assistance, health care,
pension and invalid insurance, but also the transfer of property, invested
capital and profit.[24]
The first instance
organ is the Section for Asylum, and the second instance organ is the Competent
Commission of the Government. The Section can take a status determination decision,
ex-officio decision related to the
person under the humanitarian protection or a decision rejecting the
application for recognition of the right to asylum. The second instance
decision is taken within two months from the day of submission of the appeal.
Against the decision of the Competent Commission of the Government, an
administrative dispute may be initiated.
The
Macedonian Law stipulates the possibility of the accelerated procedure and its
is implemented when the asylum application is manifestly unfounded. The reasons
for the accelerated procedure are also related to the fact that the asylum
seeker comes from “safe third country” or “safe country of origin”. The
deadline for the appeal is three days. According to the Law the procedure must
not exceed 15 days from the date the application is filed.[25]
Law on Asylum and Refugees of the Republic of Bulgaria
This law
was adopted on May 16, 2002.
There are no
significant differences regarding the rights stipulated in other laws in the
region.[26]
The
characteristic of this law is that the asylum is granted by the President of the
Republic, and the president of the State Agency for Refugees will grant,
refuse, withdraw and terminate the refugee status.[27]
In the status determination procedure, the key role is given to the State
Agency for Refugees[28].
Temporary status is given by the Council of Ministers. A written request for
granting asylum is submitted to the President of the Republic, a temporary
status is decided upon by the Council of Ministers, and the president of the
State Agency decides upon the refugee status. The Law also stipulates the
possibility of relevant court protection, depending on the accelerated or
general procedure.[29]
The District Court and the Supreme Administrative Court are responsible
respectively.
The Law
stipulates the concepts of “safe third country”[30],
“safe country of origin”[31],
“manifestly unfounded claim”[32].
The minors are exempted from the accelerated procedure upon the appeal.[33]
Regarding
the best practice examples, there is a possibility of recognition of foreign
documents of education, academic degrees or qualification, as well as the
programmes of assistance to integration in the Bulgarian society.[34]
Article 53 also encompasses the orientation towards a coordinated action of
assistance of public and civil society (nongovernmental organisations) for
better integration in the Bulgarian society, including: language courses,
vocational trainings, social, medial and psychological assistance, promotion of
public awareness among the population on the refugee issues, as well as the
development of legislature in that direction.
Law on Asylum of the Republic of Croatia
The law was
adopted on June 18, 2003.
The Law
also follows on the provisions of the Convention relating to the Status of
Refugees and its Protocol of 1967, regarding the rights guaranteed to asylum
seekers and those who have been granted status. It is about the right to reside,
to basic living conditions, health care, elementary education, financial aid, access
to courts and legal counselling, humanitarian assistance, freedom of religion
and religious upbringing of children[35],
as well as the right to work and family unity. [36]
Although the
UNHCR recommends that difference should not be made between the persons who have
arrived in a mass influx and those who have sought protection individually, the
Croatian law does exactly that. It is clear that persons under temporary
protection have fewer rights than those who have not arrived in a mass influx.[37]
The organs
participating in the procedure of granting asylum are: The Ministry of the
Interior at the first instance and the Commission of the Croatian Government at
the second instance. The administrative dispute can be initiated against the Commission.
It is
interesting that the asylum claim will be rejected
if the person comes from safe third country. Their applications will not be
considered and the relevant organ will not examine the concrete situation. This
could be compared with the solution of the Macedonian Law, where the fact that
the person comes from “safe third country” is the reason for initiating the
procedure where the asylum seeker is at least given the opportunity to prove that
the country is not safe for him/her.
This law
also encompasses the concepts of «safe third country», «safe country of origin»[38],
«manifestly unfounded claim»[39].
Article 40 of the Law also stipulates the possibility of the Government
restricting the movement of an asylum seeker for the reason of: establishing his/her
identity, preventing the spread of infectious diseases, protection of public
order. The movement is restricted for a period of up to 3 months, and in
particularly justified circumstances it may be extended for another month.[40]
Law on Asylum of the Republic of Slovenia
This Law was
adopted on August 14, 1999.
The Law
also follows the provisions of the Convention relating to the Status of
Refugees and its Protocol. The guaranteed rights are same as in the Croatian
Law.[41]
There are no special provisions related to the freedom of religion and the
norms related to the massive refugee influx.
This Law
addresses the issue of unaccompanied minors. They are immediately assigned a
legal representative and cannot be deported to their country of origin or a
third country willing unless adequate reception and basic living conditions are
provided. During the examination of the asylum claim, filed by the
unaccompanied minors with the assistance of the legal representative, the level
of the mental maturity of an unaccompanied minor is assessed.[42]
The
provisions related to access to courts are satisfactory. Legal assistance is
provided by lawyers who have passed the state legal exam and have adequate experience
in asylum and refugee matters. These persons have the status of refugee councillors
appointed by the Minister of Law. Upon the asylum seeker's request, the councillors
inform asylum seekers of all the issues concerning the laws of asylum and
asylum claims, provide assistance in their asylum claims, as well as general
legal assistance and representation in the procedure for granting asylum.[43]
The organs
participating in the procedure are the Ministry of the Interior and the
Administrative Court.
The Law makes
distinction between two types of procedures: one being for aliens coming from
safe third countries and the regular procedure. The first one is carried out according
to the accelerated procedure. A petition is submitted within three days, and the
Administrative Court reaches the decision within seven days. In the regular
procedure, a petition is submitted to the Administrative Court within 15 days and
it decides on the appeal within 30 days from the day of lodging the appeal.
The
Slovenian Law also encompasses the concepts of «safe third country», «safe
country of origin», as well as the accelerated procedure in case a petition was
submitted by the person from the list of safe third countries.[44]
III Implementation of laws and
policies
In
the absence of an asylum law and the accompanying institutions, the UNHCR in
SaM has continued the refugee status determination procedure of the persons out
of the former Yugoslavia. They are mainly persons caught while illegally
entering or staying in the territory of the former Yugoslavia, but there are
also persons with legal residence in SaM who have voluntarily approached the
UNHCR. Furthermore, a number of asylum seekers have entered the procedure
through the UNHCR reception office at the Belgrade Airport. The UNHCR does not
have its reception centres at other border crossings. If they are granted
refugee status by the UNHCR, these people will be relocated to the third
countries – mainly the USA and Canada.
The
citizens of Iraq are enjoying temporary protection in SaM, under the care of
the UNHCR. Although they have entered the UNHCR procedure, the UNHCR does not
examine the reliability of their claims for international protection as long as
the security situation in Iraq remains the same. There were 19 Iraqi nationals
in SaM who enjoyed this kind of temporary protection.[45]
In 2005, the total of 55 foreign nationals
entered the refugee status determination procedure. The refugee status was
granted to 11 persons (three families) – 10 Turk nationals and one Uzbekistan
national. Among the asylum seekers, the majority are from Bangladesh (8),
Georgia (7) and India (5).
The
UNHCR does not have data on the cases of failed asylum seekers who were
returned to places where their lives or freedom could be jeopardised
(refoulement), but with the present unregulated conditions related to asylum
protection, there is a great possibility for refoulement. According to the
unofficial estimations, 27,000 foreign nationals were not allowed to enter SaM
in 2005, and there were likely asylum seekers among them. Furthermore, the
UNHCR prevented the repatriation of an Iraqi national who should have been
deported since his travel document had expired in SaM.
As already
mentioned, SaM passed the Law on Asylum in March 2005. It is a state union
level law that only generally guarantees the right to seek and enjoy
asylum. The Republics have been left to
adopt substantive laws to implement the general right in accordance with the
international standards. In Montenegro, the draft law has been prepared for
adoption at the Assembly, while in Serbia it is still in its draft form. The
reason for delay in Serbia lays above all in the lack of institutional
organisation characterised by the animosity among certain Ministries.
Aiming
at strengthening capacities for future asylum protection, the UNHCR carries out
training for the police members in Serbia and organises study visits in order
to familiarise the authority representatives with the asylum systems in
neighbouring countries. After the Law on Asylum is adopted, the UNHCR is
planning training for jurisdictional organs and the civil sector.
I) List of countries from which the asylum
seekers arrived:
|
Country
of origin |
January-
June 2005
|
July
–December 2005 |
TOTAL |
|
Albania |
1 |
1 |
2 |
|
Bulgaria |
1 |
2 |
3 |
|
Bangladesh |
8 |
0 |
8 |
|
Georgia |
5 |
2 |
7 |
|
India |
5 |
0 |
5 |
|
Iran |
0 |
2 |
2 |
|
Iraq |
0 |
5 |
5 |
|
Moldavia |
0 |
3 |
3 |
|
Mongolia |
0 |
4 |
4 |
|
Morocco |
0 |
3 |
3 |
|
Netherland |
1 |
0 |
1 |
|
Nigeria |
0 |
1 |
1 |
|
Palestine |
0 |
1 |
1 |
|
Russia |
0 |
4 |
4 |
|
Sri Lanka |
0 |
1 |
1 |
|
Tunis |
0 |
1 |
1 |
|
Turkey |
1 |
0 |
1 |
|
Uzbekistan |
1 |
0 |
1 |
|
TOTAL |
|
|
55 |
II)
Number of persons who applied for asylum
|
Male |
48 |
|
Female |
7 |
|
Unaccompanied
minors |
1 |
|
Minors
included in family |
5 |
|
TOTAL
persons |
55 |
|
TOTAL (cases) |
47 |
III) Recognition
|
Male |
7 |
|
|
Female |
4 |
|
|
Unaccompanied
minors |
0 |
|
|
Minors
included in family |
6 |
|
|
TOTAL
persons |
11 |
10
individuals applied in 2004 |
|
TOTAL (cases) |
3 |
2 cases
submitted appl. in 2004 |
IV) Rejections (1st
instance)
|
Male |
19 |
|
Female |
5 |
|
Unaccompanied
minors |
0 |
|
Minors
included in family |
2 |
|
TOTAL
persons |
24 |
|
TOTAL (cases) |
20 |
For
those who have been rejected the asylum by the UNHCR, IOM organises return to
the country of origin. In 2005, there was only one case of voluntary return of
an asylum seeker. An Albanian national gave up the asylum claim and through IOM
voluntarily returned to Albania.[46]
Apart from the UNHCR, the organisations that assist
asylum seekers are: the Red Cross of SaM, whose assistance mainly consists of
clothing and basic food items, and Amity, who provides psychosocial
support. The vast majority of support is
provided by the UNHCR.
The UNHCR
is not familiar with any cases where an asylum seeker has tried to resolve a
matter through the courts in SaM. Considering that asylum seekers have almost
no rights apart from the right to temporary stay, their status in the country
is suspended while in the UNHCR procedure, and they generally avoid contact
with the authorities.
The UNHCR
organises free legal assistance for any asylum seekers that find themselves at
court due to minor offence, or rarely a criminal deed.
Access
to labour markets and social services
The asylum seekers and refugees who have been granted status by the UNHCR
do not have access to any social and economic rights as long as they are in the
territory of SaM. Many of them have seasonal jobs in agriculture and
construction business and are completely unprotected from exploitation and
fraud.
Documents, choice of residence and freedom of movement
As
in previous years, asylum seekers in SaM do not regulate their stay with the
Police, but the Police tolerate their stay as long as the UNHCR takes care of
them. The UNHCR issues two types of documents – for people have entered the
procedure for the refugee status and for those who have been granted the
refugee status. In the process of preparing the Law on Personal ID, the Serbian
authorities are considering the possibility of issuing ID for foreign citizens.
In
Serbia people who have entered the UNHCR determination procedure can freely
move throughout the country, with the previous authorisation from the police.
The
UNHCR provided accommodation to asylum seekers at the motel “Hiljadu ruža” (10
kilometres southeast from Belgrade) until December 2005. After that, the UNHCR
has been accommodating asylum seekers in the workers’ barracks in a part of New
Belgrade called “Savski nasip”, based on the agreement with a construction
company. The asylum seekers there have regular meals, but the living conditions
are generally worse than at the motel “Hiljadu ruža”. If they have money,
asylum seekers can pay for private accommodation in a room or a flat.
The
UNHCR offers 100 US dollars a month as assistance to the persons who have been
granted refugee status, in order for them to find their own private
accommodation while they are waiting relocation to third countries. There are
no restrictions regarding the choice of accommodation for refugees, but the
UNHCR advises them to select Belgrade or its surroundings due to the vicinity
of the UNHCR office.
|
There are
cases where people leave the UNHCR accommodation and illegally continue
towards Western Europe even after the UNHCR has indicated that their asylum
claims will be positively resolved and that they will be transferred to a
third country. |
Right to education and health protection
Children of asylum-seekers have only the
right to primary education and they are enrolled in one elementary school in
Belgrade.
Expenses which occur for the medical treatment of asylum seekers at
local health institutions are refunded by UNHCR.
Recommendations:
[1]
Extracts from this text were used in the realisation of the Fund for an Open Society
project "Monitoring the process of Serbia's rapprochement with the EU and
Europeisation of Serbia’’ realised by Group 484
[2] ICMPD, Visa module, Report for
[3]
http://www.ssinf.sv.gov.yu/dokumenta/studija.pdf
[4] In
the last three years, only one Agreement was signed recently with
[5]
The reception centre as well as the entire asylum issue in SCG is still in the
competence of UNHCR
[6]
www. feio.sv.gov.org
[7]
www. seio sv.gov.org; National Strategy of Serbia for the
[8] http://www.delprn.ec.europa.eu/en/eu_and_kosovo/key_documents/Partnership2006.pdf;
Council Decision of 30 January 2006, on the principles, priorities and
conditions contained in the European Partnership with Serbia and Montenegro including
Kosovo as defined by the United nations Security Council Resolution 1244 of 10
June 1999 and repealing Decision 2004/520/EC , 2006/56/EZ
[10] On
the website of the Government of the Republic of Serbia there is the Draft Law
on Changes and Amendments to the Law on Refugees, which due to some of its
controversial solutions has been a subject to discussions in the expert public.
[11]
European Commission, Progress Report
[12] Since
the adoption of the Dublin Convention in 1990, many NGOs in
[13] Group
484, The Problem of Asylum Protection, unpublished text, pages 8-11, 2005
[14]
Group 484, “Towards White Schengen
List”, pages 16, 2005
[15]
Article 9 Section 4 of the Law on Asylum of the Republic of Slovenia; Article
11 of the Law on Asylum of the Republic of Croatia, Article 86 of the Law on
Movement and Stay of Aliens and Asylum of Bosnia and Herzegovina; Article 13 of
the Law on Asylum of the Republic of Macedonia; Article 20 of the Law on Asylum
of the Republic of Albania; Article 3 Section 2 of the Law on Asylum of the
Republic of Bulgaria.
[16] Therefore,
according to Article 38 of the Law on Asylum of the
[17]
Explanation of draft of the Law on Asylum, the Ministry of Foreign Affairs of SaM,
March 21, 2005
[18] Law on Asylum of
[19]
Law on Movement and Stay of Aliens and Asylum of BiH, Articles 72, 83, 73, 90,
35, 60,38 ; Provision on Asylum in BiH, Articles 2, 3
[20]
Ibid, Articles 75, 5, 35, 77, 80, 81, 82; provision on Asylum in BiH, Articles
118,12, 17
[21] Provision
on Asylum in BiH, Articles 9, 10
[22]
Law on Movement and Stay of Aliens and Asylum of BiH, Articles 76, 78
[23]
Law on Asylum and Temporary Protection of
[24]
Ibid, Articles 48, 49, 52, 53, 54 56 57
[25]
Ibid, Articles 34, 35, 36, 37
[26]
Law on Asylum and Refugees of
[27]
Ibid, Articles 2, 48
[28]
ibid, Article 53
[29] Ibid, Articles 58-92
[30]
Ibid, additional provision 1( 5 )
[31]
Ibid, additional provision 1 ( 4 )
[32]
Ibid, Article 13
[33]
Ibid, Article 71
[34]
Ibid, Articles 53, 54
[35]
Law on Asylum of the
[36]
Ibid, Article 24
[37]
ibid, Articles 20, 60
[38]
Ibid, Article 2
[39]
Ibid, Article 43
[40]
Ibid, Article 41
[41] Law on Asylum of the
[42]
Ibid, Articles 14, 28
[43]
Ibid, Article 16
[44]
Ibid, Article 2
[45] There
were 18 asylum seekers in Kosovo in 2005 under refugee status determination
procedure of UNHCR.
[46] Group
484, Human Rights of Refugees, Internally Displaced Persons, Returnees and
Asylum Seekers in