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EUROPEAN
COUNCIL ON REFUGEES AND EXILES CONSEIL EUROPEEN SUR LES REFUGIES ET
LES EXILES EU.OFFICE |
Hearing
on Fundamental Rights in the European Union European Parliament - 17/4/02
Intervention on fundamental rights and measures relating to terrorism by Irene Donadio, ECRE EU Representative
I am speaking on behalf of the European Council on Refugees and
Exiles (ECRE). ECRE is a pan
European umbrella organization of over 70 refugee assisting NGOs in 30 European
countries.
I would like to thank the chairman and the Civil Freedoms
and Citizens’ Rights Committee for the
opportunity to speak on this occasion.
My intervention will focus on the relationship between safeguarding
internal security and complying with international protection obligations and
instruments
The events of September 11th have cast a shadow on EU justice and home affairs debates over recent months. ECRE is concerned that the fundamental values that the Union is founded upon, including respect for human rights and fundamental freedoms and the principle of democracy are not compromised in the search for greater security.
In recent months, NGOs and UNHCR alike have often argued that terrorists are not likely to use the asylum channels much, a point that is clearly endorsed by the European Commission in its Working Document on this subject. Asylum seekers can be easily detained or at least their freedom of movement and residence be restricted, they have their finger prints taken and might have to report to the authorities. We consider that in a climate of numerous challenges to asylum, the existing fears on terrorism should not be used as a justification for deserving cases being denied access to international protection. ECRE considers that the exclusion of persons from the Refugee Convention and other forms of international protection represents a limitation on a human rights provision. Therefore Art 1 F of the Geneva Convention on Refugee Protection needs to be interpreted restrictively and only after extreme caution has been exercised. Within this context, we warmly welcome the Commission's assertion that "bona fide refugees and asylum seekers should not become victims of recent events".
The
EU must balance state national security concerns and obligations under
international human rights law. There are several issues of concern related to
the measures on terrorism, which might have a devastating impact on asylum, in
particular as regards:
a) The definition of terrorism;
b) The application of the exclusion clause
c) Treatment of Security Risk Cases
Definition
of terrorism
The Comission's Working Document rightly points out
that "there is no internationally agreed definition of terrorism as
yet". ECRE therefore views the debate on terrorism in the context of the
application of Article 1F of the 1951 Convention with grave concern. This is in
view of the fact that Article 1F does not mention terrorism as a separate
exclusion ground. The exclusion clause is only to be applied if the committed offence amounts to a
crime against peace or humanity, a war crime, a serious non-political crime or an act contrary to the
purposes and principles of the United Nations. In the absence of an
internationally agreed definition of terrorism which automatically brings certain
terrorist acts within the realm of one or more of the exclusion clauses of the
Refugee Convention, ECRE considers of paramount importance that EU Member
States examine on a case by case basis whether the offences committed by asylum seekers accused of
"terrorism" amount to one of the excludable crimes enlisted in
Article 1F.
Access to the asylum procedure
ECRE fully supports unequivocal access to the asylum procedure by all persons requesting asylum in an EU Member State.
We are particularly concerned by the suggestion (put forward by some governments and the Commission in its working paper on security and international protection) that ‘suspected’ asylum seekers would have their asylum claim assessed in an accelerated asylum procedure, if they are considered on a prima facie basis to fall within the scope of the exclusion clauses. Firstly, we are concerned that governments and the Commission provide no indication as what the test would entail for establishing whether someone falls prima facie under the scope of the exclusion clauses: what factors are to be considered, what would be the sources of evidence presented, at what stage in the process it would be decided that a claim is channelled through an accelerated procedure, whether there will be an opportunity for rebuttal. In view of the seriousness of any allegation of exclusion, ECRE would recommend against the use of the concept of prima facie grounds for exclusion.
Secondly, ECRE considers that even in cases suspected to fall within the scope of the exclusion clauses, there are a number of reasons why it is necessary that the possibility of exclusion should be dealt with within a regular procedure which allows the applicant the full opportunity to present his/her claim for inclusion. According to the general principle of procedural fairness, an individual has the right to present and the decision maker the obligation to consider all information relevant to a decision. Given the complex nature of Article 1F cases, full knowledge of all the facts could only emerge through a regular procedure which involves thorough examination of complex questions and the careful weighing of all relevant factors which should be integral to any exclusion decision. This is essential in view of the seriousness of the issues and the consequences of an incorrect decision.
Treatment of Security Risk Cases
Detention of persons during an asylum procedure which includes consideration of both inclusion and exclusion elements, may only be used in exceptional cases, and should carry full procedural safeguards in line with international guidelines on the detention of asylum seekers. Non-custodial measures, which are both more humane and more effective, such as reporting requirements should always be considered before resorting to detention. While the safeguarding of national security or public order may serve as a reason for the detention of an asylum seeker, the measure always has to withstand the proportionality test and is only to be applied if and when all other measures have been exhausted.
An absolute maximum duration
for any detention should be specified in national law. Any review body should
be independent from the detaining authorities.
Detainees should be given
a clear understanding of the grounds for their detention and their rights while
in detention. They should have unrestricted access to independent, qualified
and free legal advice. They should have an opportunity to have their detention
reviewed
THANKS