ASYLUM SEEKERS AND CRIMINALITY
Following a
request from the Danish Refugee Council, we have received information from
Bulgaria, the Netherlands, Norway and the UK
Here is the
request:
“As you
know we are currently facing a very politicised discussion in Denmark on the
reaction towards asylum seekers who commit crimes while in Denmark. There is
certain evidence that a very high proportion (more than 50 %) of asylum seekers
originating from the republics of the former Soviet Union are charged with
crimes during their stay as asylum seekers in Denmark. In some cases it is
serious organised crime, but very often it concern charges of petty crimes,
small-scale shop lifting, etc. In some cases custody/detention would be
possible on basis of the ordinary rules of criminal procedure.
In view of this,
the government is now considering changing the legislation in order to make it
possible to detain asylum seekers/aliens who have committed - or maybe even
only are suspected - of having committed very small scale criminality - cases
where it will not be possible to detain Danish nationals on similar
offences/charges.”
For further
information please contact: Nina Lassen at the Danish Refugee Council
(Nina.Lassen@drc.dk) but please cc. your response to Claudia Reinprecht in the
ECRE Secretariat (CReinprecht@ecre.org).
Austria
Thanks to Roland Hermann, Vienna for the info below
There are no discriminatory regulations in
Austrian penal law concerning asylum seekers. Anyhow, in cases of graver
crimes, the foreign nationality of the suspect, together with a lack of
„regular circumstances of life“ (labour, family bands etc.), which
is in most cases characteristic for asylum seekers, may constitute a special
reason to uphold pre-trial-detention. Apart from this aspect, there is no
visible discrimination of asylum seekers (or of foreigners in general) neither
by Austrian penal law nor by the procedural or sentencing practice of Austrian
criminal courts. (Anyhow, it must also be stated that the question who and
whether and why is being put before court is –at least in
„minor“ cases- very much dependent on the police who are often
mandated by the court with the pre-examination of facts and whose known
discriminatory opinion on certain groups of foreigners –such as
„African drug gangs“, „Eastern European mafia“,
„asylum-abusers“ etc.- may very well have influence on the content
of files produced to the courts, on basis of which penal procedures are being
initiated and decided.)
Even though there is no discrimination visible in
the sentencing practice of Austrian criminal courts, there are plenty of
negative consequences for foreigners in general and for asylum seekers in
special which may result from the mere fact of an indictment, and even more so
from a verdict: P.ex., a verdict for having committed a „non-minor“
crime, even though the sentence itself is considerably small or if its
execution has been conditioned on probation, may give leave to the asylum
authorities to examine whether or not the asylum-seekers has, by committing
this crime, disqualified for a granting of political asylum. Although a
deportation could then still be found as being contrary to Article 3 of the
ECHR, the status of the refugee will be that of mere „toleration“,
not of integration within the society (no access to work, no social care, no
qualification for humanitarian or permanent residence).
According to the Austrian Foreigners’ Act, a
sentence of at least three months’ prison, or of at least six
months’ prison on probation HAS to be regarded as a reason to prohibit
residence to a foreigner. Anyhow,
any sentence which does not reach this amount, CAN already be used in order to
impose a prohibition of residence; and IS in fact currently used this way. Even
more so, the mere fact of a suspicion of having committed a crime MAY (and IS)
be(ing) used against the foreigner, unless he had been found non-guilty.
This practice is being fully covered by the
Constitutional as well as by the Administrative Courts who both argue that the
foreigners’ police authorities are free to judge an individual case from
the public security’s point of view – by doing so, they shall
neither have to wait for a court’s decision on the accusation, nor shall
they be bound by the court’s opinion on the quality of the crime
committed or on the ability of the individual to resocialize.
Therefore, by distinguishing on a merely
argumentative level between the „aims“ of penal law and those of
foreigners’ police law, foreigners often find themselves in the situation
that the Criminal court had not found it necessary to execute the imposed
sentence in order to keep them from committing further crimes, but the
foreigners’ police authorities are nonetheless entitled to prohibit the
further residence „for the sake of public security“.
As mentioned already, the decision on the imposal
of a residence prohibit is to be taken by the foreigners’ police
authority and can be appealed against to the regional security directorate
(„Sicherheitsdirektion“), who both aren’t independent
tribunals.
Only as a last possibility there can also be filed
a complaint to the Constitutional and/or Administrative Court, whose judges can
only examine the case on its merits regarded at the time and facts of the
security directorate’s decision, and only as far as facts had already
found way into the files before. If the Constitutional and/or Administrative
Court find the decision examined to have violated the law, the security
directorate’s decision has to be renewed; if not, the complaint is being
rejected, ignoring the fact that plenty of time may have passed already during
which the foreigner had been able to proof his compliance with the law (term of
probation passed, no new commitments etc.).
As far as asylum seekers are concerned, the
police’s decision to prohibit further residence may not be executed by
deportation before there is a final decision on their asylum claim, as well as
on the admissibility of deportation.
Nevertheless, the police is entitled to detain the foreigner for up to a
two months’ period in order to secure a pending procedure to prohibit
residence, and for a further four months’ period in order to secure
deportation.
It need not be stated that it is very difficult
for an asylum seeker to receive a fair asylum procedure from out of prison.
Furthermore, the mere SUSPICION of having committed a crime (minor or grave) is
one of the reasons entitling the Ministry of Interior to throw asylum seekers
out of federal care programmes. As this federal care (housing, food, medical
care) is only being granted to asylum seekers on a voluntary basis (the law
says that the ministry MAY grant it), there is no legal remedy for the asylum
seeker against such a decision.
Finally, it also has to be remarked that asylum
seekers frequently have to face criminal charges in connection with the way
they came to Austria and with the prooves produced before the authorities for
their asylum claim (i.e. use of false documents, use of documents belonging to
somebody else).
Even though criminal courts’ sentences in
cases like these are generally quite low, they are in most cases enough to
effectuate the loss of federal care and the prohibition of residence.
Besides criminal penalties, there do also exist
„administrative fines“ in Austria which are not being imposed by a
judge but by the police, p.ex. because of traffic offences. Foreigners and
especially asylum seekers are often confronted with such „administrative
fines“ for lack of visa, illegal entry, failing to register their
habitation etc. If the fine imposed is not being paid, it has to be served in
police prisons (terms of several days). According to the Foreigners’ Act,
two „administrative fines“ HAVE to be regarded as a reason to
prohibit further residence.
BULGARIA
Thanks to Iliana Savova for the info below
There are not discriminatory regulations concerning
asylum seekers who have committed a crime in Bulgaria. General rules of the
Criminal Procedure Code are applicable. An individual cannot be
arrested/detained for smaller scale of criminal activity, as shop lifting for
example. Only in cases of certain serious crimes arrest can be proceeded.
The Bulgarian government has not considered
discriminatory measures on the detention/taking into custody of asylum seekers
who have committed/ charged with or suspected of having committed criminal
offences.
THE NETHERLANDS
Thanks to Diederik Pomstra, Dutch Refugee Council, for the info below
In the Netherlands a strict separation exists between
penal and asylum-law. If an asylum seeker is suspected of criminal activities he
will be detained according to the penal law. There are no legal possibilities
to detain a person longer because he is a refugee as this would, of course, be
discriminatory. As far as the Vluchtelingenwerk knows, there are no exceptions
to this rule.
NORWAY
Thanks to Rune Steen, NOAS, for the info below
Last fall there was the same discussion in Norway
whether to introduce legislation enabling to detain asylum seekers who have
committed a crime under different conditions than Norwegians. Suggestions from
certain politicians and others of introducing different practice towards asylum
seekers than towards Norwegian citizens in terms of detention because of
criminal acts were not accepted by the government. The focus in Norway has been
on facilitating the Immigration Directorate for faster processing of the asylum
applications of asylum seekers who have been charged with criminal offences, be
it petty crime or more serious crimes.
The Swiss refugee Council published a study on the
question of criminality among asylum seekers in February 1999 with texts in
German and French. A copy can be ordered online on our homepage
(www.sfh-osar.ch). The title is: "Asylmissbrauch durch Kriminelle oder
kriminelle Asylsuchende, Zahlen, Fakten und Erklaerungsanstze zur Kriminalitaet
unter Asylsuchenden in der Schweiz, Februar 1999, (161 Seiten, Fr. 35.-- auf
Bestellung) AutorIn: Eisner,
Manuel; Niggli, Marcel; Manzoni, Patrik; Levrat, Christian; Cottet, Bertrand;
Wyser, Gaby; Weibel, Albert; Bircher, Bernhard. The study gives an overview on
different aspects and the few statistic material available.
As to the Swiss legislation: Since 1995 a new law
allows detention of foreigners in order to guarantee their expulsion. The
maximum time of preparatory detention (while a decision is still pending) is
three month. One of the reasons to order detention is that the foreigner has
seriously threatened the liberty or physical integrity and therefore is in a penal
process or already has been sentenced. The maximum time of expulsion detention
(after a first instance decision) is 9 months. The reasons are the same as for
preparatory detention and some few more. Note that detention is only allowed in
order to guarantee the expulsion and not in order to punish somebody. Proposals
which wanted to intern criminal asylum seekers have been rejected because they
are not in accordance with art.5 ECHR. All measures offering a detention of
asylum seekers beyond ordinary penalties must bee in accordance with art. 5
lit. f ECHR. You'll find the respective Swiss law in articles 13a to13e
foreigners law (Bundesgesetz ueber Aufenthalt und Niederlassung der Auslaender,
SR 142.20) in French or German under http://www.admin.ch/ch/d/sr/c142_20.html
Thanks to Chris Randall for the info below
The provisions which govern whether someone who is
charged with a criminal offence is detained do not identify asylum seekers per
se. However the general criteria, such as ''likelihood to answer to bail'' are
more likely to catch those who are marginalised, amongst whom are
asylum-seekers.
The rules of criminal procedure don't distinguish between national and non - nationals except in the sense that there are some immigration related offences which nationals by definition cannot commit.