Joint Position
of
Amnesty International - German Section -, Arbeiterwohlfahrt, Caritas
Germany, German Red Cross,
Diaconal Agency (Diakonisches Werk) of the Evangelical Church in Germany, New
Judges Association and PRO ASYL, German association for refugees
on
the Proposal for a Council Directive on
minimum standards on procedures in Member States for granting and withdrawing
refugee status of 21 September 2000
Preliminary remark
On 21 September the Commission presented a proposal on minimum standards for asylum procedures in the member states. This draft is based on Article 63(1)(d) of the Treaty establishing the European Community, according to which "minimum standards on procedures in Member States for granting or withdrawing refugee status" shall be adopted. The proposal has to meet the objectives decided by the European Council at its special summit in Tampere on 15 and 16 October 1999. At this meeting the importance was reaffirmed that the Union and the Member States attribute to the "unconditional respect for the right to asylum". Furthermore, the European Council underlined its intention to work towards a common system of asylum based on the unrestricted and comprehensive application of the Geneva Convention.
The Commission had presented a working paper on common standards for asylum procedures back in March 1999. It was discussed in the Council at ministerial level, in the member states and in the European Parliament. In addition, the UNHCR, Amnesty International, ECRE and other international organisations presented written opinions. The present proposal by the Commission only partially considers the proceeding discussion. In particular with respect to the admissibility and accelerated asylum procedure it remains at some points below the minimum standard laid down under international law. However, the proposal in itself, with its essential substantiating and regulating elements, can be understood as an attempt to reverse the previous harmonisation process in asylum and refugee law – hitherto exclusively characterised by ministerial bureaucracy and deliberately excluding the public – and to make this process transparent.
The granting of refugee protection in Europe is largely dependent on social consensus. That is why transparency and the involvement of non-governmental organisations and thereby public participation in framing Community law on asylum and refugees are the basic conditions for an improvement in refugee protection.
According to its Objectives the proposal is to guarantee "fair and efficient asylum procedures in the member states" and thereby enable them to provide procedures for the processing of asylum applications of "persons that may be Geneva Convention refugees". To this end there shall be "minimum requirements for decisions and decision-making authorities with a view to reducing disparities in examination processes in Member States and ensuring a good standard of decision making throughout the European Community." This in itself presupposes previous agreement on the application of the concept of refugee. Regrettably, however, the Council and the Commission, in their common action plan of 3 December 1998, agreed to accord the harmonisation of asylum procedures priority over the harmonisation of the concept of refugee.[1] It is however expected that the Commission will present in summer 2001 the proposal for a directive on the "approximation of provisions on the recognition and features of refugee status".
In September 2000 ten German non-governmental organisations[2] presented a Memorandum for the Protection of Refugees. Its basic goal is to create and maintain public awareness for the necessity of refugee protection. The latter is understood to be an international responsibility. The Commission's proposal only partly reflects these objectives and is therefore in need of improvement on some issues.
A few elements of the proposal will dealt with in detail below.
Like Article 63 of the Treaty establishing the European Community, Article 2(a) of the Commission proposal only relates to the Geneva Convention. Even if the asylum procedures of member states are primarily about the granting of the legal status of a refugee they cannot disregard their international obligations following from other international standards. In a procedure involving the application of the Geneva Convention by the competent authorities of the United Kingdom the European Court of Human Rights therefore recently expressly pointed out that the signatory states to the European Human Rights Convention had to particularly consider Article 5 of this Convention in examining asylum applications.[3]
The members states of the European Communities are bound to this case law. It does not mean that a right to asylum follows from Article 3 of the European Human Rights Convention. In the framework of the asylum procedure, however, the member states have to consider the protection against deportation following from Article 3 in the case of a threat of torture or other inhuman or degrading treatment in their state of origin. This is quite independent of the question of whether asylum is granted or not. Hence Article 2 of the Commission proposal should contain a reference to other international obligations, particularly Article 3 of the European Human Rights Convention and Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, independently of an application for asylum protection.
The proposal first takes up the question of access to the asylum procedures in the members states. An effective access to an asylum procedure is essential if the member states are to meet their international obligations following from the prohibition of refoulement (turning back, deporting and extradition of refugees). With respect to regular asylum procedures the Commission's proposal does contain effective protection measure against refoulement. By contrast, the proposals on admissibility and accelerated procedures do not meet the international obligations of the member states. Hereby the proposal does not do justice to the demands of the above-mentioned summit of Tampere. In point 3 of the decision of Tampere the member states expressly undertake to guarantee access to Community territory and to the asylum procedure.
Access to the asylum procedure is provided for in Article 4(1) of the proposal. It states that filing an asylum application "shall not be subject to any prior formality". It should be clarified that this also prohibits exclusion regulations under procedural law that only open access to the asylum procedure within a certain period of time after entry. Such a restricted right of application is incompatible with Article 3 of the European Human Rights Convention according to the case law of the European Human Rights Court.[4].
In addition, the member states have, according to Article 4(2), to ensure that the applicant is given the opportunity to "lodge an application as early as possible". In keeping with the international standard in refugee law, as first laid down in recommendation no. 8 (XXVIII) of the executive committee of the UNHCR programme and subsequently endorsed in recommendation R (81)16 of the committee of ministers of the Council of Europe, Article 4(3) stipulates that all authorities likely to be addressed by the applicant at the border or on the territory of the Member State have to "have instructions for dealing with applications, including the instruction to forward the applications to the competent authority for examination, together with all relevant information". According to Article 14(1)(a) "personnel likely to come into contact with (asylum seekers) such as border officials and immigration officers" must be trained to "recognise an application for asylum and how to proceed further" according to their instructions.
These provisions ensure – in themselves – that the member states respect their international obligations, in particular the prohibition of refoulement. Access to Community territory itself is not dealt with. This is currently covered by the Dublin Convention. According to Article 3(5) of this convention the contracting states can deport the applicant not to the contracting state responsible but to a third state, outside the European Union, without examining the substance of the asylum application. The asylum seeker thereby has precisely no right to access to Community territory and thereby to effective access to an asylum procedure in a member state. The guaranteeing of an effective access to the asylum procedure therefore requires supplementing by the right to access to the procedure within the Community territory. Therefore the Commission should emphasis this aspect in particular in the proposal for a directive to replace the Dublin Convention.
With this reservation it may be said that the proposed provisions regarding the regular asylum procedures as such reaffirm the legal progress already achieved in refugee law. Under international refugee law, the ban on refoulement does not merely protect against the forcible return to a person's country of origin; in practice, states are understood to have an obligation to guarantee persons seeking asylum effective access to an examination procedure.
Consequently, the proposal establishes the obligation of member states to guarantee unrestricted access to the asylum procedure and to instruct the authorities who have the first contacts with refugees to hand the applicant on to the authorities responsible for examining the application for asylum. These provisions are particularly suited to guaranteeing the protection for the refugee and therefore require support.
According to Article 6 of the present proposal, the member states guarantee that decisions on asylum applications shall be taken "objectively and impartially". These demands reaffirm the corresponding demands of recommendation R (81)16 of the ministerial committee of the Council of Europe and fundamentally accord with Requirement 8 of the Memorandum for the Protection of Refugees, according to which every asylum seeker has a legal claim to having his/her application examined "impartially" and "sympathetically".
Objectivity and impartiality are necessary preconditions for granting refugee protection but not sufficient as such. The Memorandum stresses the "prevalent climate of institutionalised distrust towards refugees", suggesting it would be advisable to reduce the excessively high standards applied to describing the facts in asylum cases, and to give the refugee the benefit of the doubt. This reflects the standard in international refugee law as contained in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status in margin numbers 196f. and 203. Article 6 should therefore be worded as follows:
"Member States shall ensure that decisions on applications for asylum are taken individually, objectively, impartially and sympathetically. The applicant should be given the benefit of the doubt."
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obligation to give comprehensive
information
According to Article 7(a) of the proposal asylum seekers "must be informed about the procedure to be followed and of their rights and obligations during the procedure, in a language which they understand". Article 7(b) states that "they must be given the services of an interpreter, whenever necessary,...paid for out of public funds." In all other phases of the procedure, according to Article 7(c), the applicant is to be given the opportunity to communicate with the UNHCR or other organisations working on its behalf.
It is necessary, however, that the asylum seekers be instructed in a language they understand about the precise content of their obligations to cooperate and present their case and also about the legal consequences of making mistakes in fulfilling these obligations (see also Article 7(a)). Moreover it is not sufficient for only the asylum authorities to draw on adequate information on the situation in the country of origin of the applicants (see Article 13(1)(b) of the proposal). Rather, for an effective guarantee of the right to a hearing they have to inform the latter in connection with their personal interviews about the sources of information used and give the applicants the opportunity to respond to statements in these sources that do not correspond to their own statements. In addition the authorities have to specifically point out contradictions in the latter so that the applicants can be aware of this and react appropriately. Finally, the asylum authorities have to tell them that they can remove doubt about the statement of facts by presenting pieces of evidence and other proofs.
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full qualification of the
determining authorities
The member states shall further, according to Article 13(1), "take appropriate measures to ensure that determining authorities shall be fully qualified in the field of asylum and refugee matters." Personnel must have the "necessary knowledge and experience in the field of asylum and refugee matters" and "from various sources" gain access to the situation in the countries of origin and transit countries. In addition, the member states are obliged by Article 14(1)(d) to ensure that "personnel examining applications for asylum have received the necessary initial training with respect to international refugee law, national asylum law (and) relevant international human rights law". The obligation to be objective in decision-making requires the use of "various sources", not just official ones. The obligation to train the personnel of determining authorities is also to be welcomed.
- legal claim to a
personal interview
According to Article 8(1) "the applicant must be given the opportunity of a personal interview ... with an official qualified under national law." The legal claim to a personal interview corresponds to the minimum demands of international refugee law as laid down in recommendation R (81)16 of the ministerial committee of the Council of Europe and in recommendation No. 30 (XXXIV) of the executive committee of the UNHCR programme.
This provision is inadequate, however, because it does not stipulate that the interview be conducted out by the competent determining authority. Instead it continues to permit the practice usual in some member states of a personal interview by local police authorities. Since the decision on an asylum application is largely a test of credibility it is unacceptable for the asylum authorities to be able to decide on the basis of the records. That is why Article 8(1) needs to be sharpened to ensure that the personal interview is conducted by an official possessing the qualifications indicated in Article 13(1)(a). Because of the importance of the credibility test the personal interview should be conducted by the authority responsible for the asylum decision, if possible by the official who will take the decision.
It is true that the asylum seeker is to have the transcript of the interview translated before a decision is taken (Article 8(2)). However, only in the regular procedures is he/she to be given an opportunity to consult the transcript and make comments on it (Article 8(6)). This implies that this procedural right is not to be granted in the admissibility and accelerated procedures. This provision is unacceptable.
Instead, before a decision the asylum authorities must check whether the asylum seeker has really stated all the facts and circumstances he/she wanted to at the interview. This presupposes the applicant's knowing about the content of the transcript. The European Court of Human Rights has conceded in this connection that certain information may be subject to secrecy for reasons of national security. Whether and to what extent this applies, however, requires a judicial examination.[5] In addition, it is hard to see any grounds on which information given by the asylum seekers themselves could be kept secret from them.
Article 7(b) is relevant here, according to which an interpreter is to be used if required. The right to call upon the services of an interpreter is an essential procedural guarantee. It should be clearly stated that this right applies in all phases of the procedure.
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right to legal support
According to Article 9(3) the "applicant's legal advisor or counsellor shall have the opportunity to be present during the personal interview on the substance of the application for asylum". This provision is to be fundamentally welcomed. It accords with recommendation R (81)16 of the ministerial committee of the Council of Europe. The authorised legal advisor's right to be present must not, however, be restricted to the questioning on the substance of the application. It should extend to the questioning on the travel route and the issue of the admissibility of the application (Articles 18 to 23).
It is not compatible with international standards that the presence of the legal counsel or advisor should be restricted during the examination "in closed areas", as stated in Article 9(2). Asylum seekers particularly need effective support "in closed areas". According to the case law of the European Court of Human Rights the states must grant the asylum seeker appropriate procedural guarantees[6] in transit zones. This applies independently of whether the asylum seeker entered the country legally or not. The obligation to guarantee effective procedural guarantees depends entirely on the physical presence of a person on national territory.[7] Accordingly the draft should be changed to better guarantee an effective access of the counsel or adviser to closed areas. In terms of procedural law, the asylum-seeker should not be worse off than someone remanded in custody.
In addition, the cost-free legal advice should not just start after a negative decision by the authorities, it should be guaranteed beforehand (cf. Article 9(4)). Comprehensive advice to the asylum-seeker, particularly about his/her obligations to cooperate and give a full statement of facts, precludes erroneous decisions and thus promotes the public interest in the correctness of the decision; it also enhances the guarantee of justice and objective acceleration of the procedure. Comprehensive, cost-free advice should therefore be guaranteed in every phase of the procedure.
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right to sympathetic examination
Support is expressed for the provisions in Article 25 of the proposal, according to which the applicant has to be given an opportunity to "present the relevant facts of his case as completely as possible and with all available evidence". Relevant facts are, in particular, information about the grounds justifying the granting of protection. If the applicant has obviously tried to substantiate his/her statements and it the authorities "have found them to be coherent and plausible, while not running counter to generally known facts", the applicant shall be given "the benefit of the doubt" (Article 25(4)).
These provisions are particularly suited to reducing the heavy burden of setting forth the facts and devising the principles of evidence appraisal in keeping with international obligations. The UN Committee against Torture expressly stressed that belated and inadequate evidence is typical of torture victims and should therefore not be held against the person concerned.[8] Support also goes to the provision in Article 8(5), according to which the authorities may refrain from conducting a personal interview if the applicant is "not capable of attending ... for psychological or medical reasons". A provision should be added that in the event of claimed torture or inhuman or degrading treatment the asylum authority should use the assistance of experts for establishing the facts and assessing the evidence.
The waiving of an interview must not, however, be held against the applicant. It should therefore be clearly stated in this provision that such a procedure is only to be considered if the application is going to be accepted.
In short, the principles of evidence assessment proposed by the Commission deserve strong support. They are suited to harmonising the member states' bureaucratic and decision-making practices with the need for refugee protection.
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special procedural protection for
unaccompanied minors
The protective regulations for unaccompanied minors in Article 10 are to be welcomed as they fundamentally take account of the special need for protection of this refugee group. The proposal rightly assumes in Article 2(k) that the protective standards for minors apply to every one under 18. In addition, it is to be welcomed that according to Article 14(d) the personnel examining applications for asylum have received the necessary training in order to be able to meet the special needs of unaccompanied minors.
Not only the legal guardian or advisor must have the opportunity to give support in setting forth the grounds for asylum, so must every person who can give useful information on this matter. Since minors frequently do not know about the facts and circumstances leading to their having to flee, special demands have to be made on the duty of the authorities to examine the case, and the requirements with respect to setting forth the facts must be lowered. In addition, the general situation in the country of origin has to be considered in the minor's favour.
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accelerated procedure
Linking up with existing procedural provisions in the member states, the Commission develops in Articles 27 to 31 rules for the accelerated treatment of "manifestly unfounded applications for asylum".
It is to be welcomed that the procedural proposals adopt the system recommended in recommendation 30 (XXXIV) of the executive committee of the UNHCR programme and basically provide for the same procedural guarantees as in regular procedures. The demand for the application of uniform procedural guarantees in accelerated and normal procedures is fundamentally taken up in the proposal. This demand poses an essential, core element of the Memorandum for the Protection of Refugees (see Parameters 9,10 and 11). It is to be welcomed in this connection that the proposal does not derive any justification for the member states to reject an application for asylum as manifestly unfounded on the basis of the violation of the obligation to cooperate existing under procedural law.
The material law preconditions of the concept of manifestly unfounded asylum applications are in some cases stricter in the applicable law of some member states. Wrong statements on identity or nationality should, by contrast to Article 28(1)(a), not justify as such the rejection of the application as manifestly unfounded. This should happen only when they are used deliberately and purposely in order to fake the existence of a threatened persecution. This also applies to the case when the asylum seeker cannot present any identifying or travel documents or make adequate statements defining his/her identity or nationality (see Article 28(b)). There always has to be complete certainty that the asylum application "is totally lacking in substance as the applicant provides no indications that he would be exposed to fear of persecution or his story contains no circumstantial or personal details", to quote the Comments on Article 28(d).
By contrast, objections arise to the conception of "safe" countries of origin in Article 28(1)(e), adopted from the practice of member states, which is questioned by the Commission itself in its communication on a common asylum procedure of 22 November 2000 (Com(2000)755, 2.1(3)). This concept should be dropped.
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legal claim to review
The provisions in Article 32 to 40 for the reviewing procedure are central to the proposal. The Commission suggests an independent system of review, that is conceptually but not substantively different from the German system. Every decision by the authorities can be reviewed by a court or comparable independent body. Article 32(1) accordingly grants the applicant the "right to appeal" against every decision taken on the admissibility or the substance of the asylum application. This does not mean the "appeal" ("Berufung") before a German administrative court but the administrative or independent review of the authority's decision. The latter has to be made in writing and contain the "reasons for the decision in fact and in law", stating "how to file an appeal and the relevant time limits" (Article 7(d)).
The right to an independent, full review of an adverse decision is today recognised almost without exception in the practice of member states and beyond, and constitutes a core element in the granting of effective legal protection for refugees. This also involves the right to be spared deportation measures during the reviewing procedure. These procedural rights were, furthermore, formulated for the first time in connection with the human rights treaties in recommendations 8 (XXVIII) and 30 (XXXIV) of the executive committee of the UNHCR programme. They were reaffirmed in recommendation R(81)16 of the ministerial committee of the Council of Europe.
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guaranteeing the right to remain
The right to "remain at the border or on the territory of the Member State" (Article 5) also applies to the review procedure. According to Article 33(1) the appeal has "suspensive effect", hence prohibiting deportation before the decision of the reviewing body. Only in the procedures affecting the application and in accelerated procedures may the member states deviate from this (Article 33(2)), but according to Article 33(3) they must grant the applicant the right to seek the granting of suspensive effect in a special procedure. No deportation can be carried out until this application has been decided. Memorandum for the Protection of Refugees expressly calls for a guarantee of the right to remain during the review procedure even in the case of accelerated procedures (see Parameter 11).
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legal claim to judicial review
While the member states may transfer the review of the adverse decision to a higher administrative authority, a Refugee Board, an interministerial Commission or a court of law[9] they shall, according to Article 38(1), grant every applicant the right to appeal to an appellate court "in all cases". According to the Comments on Article 2, this is a legal organ in a member state that is competent to deal with further appeals against decisions of a reviewing body.
If the reviewing body is an administrative or court-like authority the member states have to guarantee, according to Article 38(2), that the appellate court examines decisions of the reviewing body objectively and in compliance with procedural law. Only in cases in which the reviewing body is an administrative court can the appeal be restricted to questions of principle and procedural errors. This complies with the procedures contained in §78 of Germany’s Asylum Procedures Act.
As explained above, the guarantee of a European fundamental right to asylum presupposes the right to access to the procedure inside Community territory. Referrals can only be made responsibly in the clearcut cases in which the guaranteeing of the legal refugee status is effectively guaranteed in a state outside the European Union and this state expressly guarantees to take on the person before he/she is sent there. However, the applicant is also to be granted a limited access to the procedure within the Union before he/she is returned to a third state so that an unobjectionable examination based on the rule of law can take place to see whether the preconditions for granting effective protection are fulfilled.
The Commission deals with this question in Articles 18 to 23 around the concept of examination of admissibility, linking up with the practices developed in member countries in the past. According to the proposal three different groups of cases are to be decided in this context:
1. According to Article 18(a) in connection with Article 19 the application is inadmissible if another member state is responsible for the examination of the asylum application. This group of cases reflects the present legal situation regulated by the Dublin Convention, guaranteeing that the asylum application is dealt with in a member state.
2. According to Article 18(b) the application is inadmissible when a third country is considered the "first country of asylum". The referral to a third country is only admissible, according to Article 20, if the applicant was "admitted to that country as a refugee" before entering Community territory and can still avail himself of this protection". No objections can be raised to these provisions as they do not just deal with the protection granted in the past but also with its continuation. According to the Comments the applicant has to be received in the first country of asylum "as a refugee or for other reasons justifying the granting of protection".
3. According to the proposal, the member states shall be given the opportunity of rejecting the application as inadmissible because a third country "is considered as a safe third country for the applicant". The chief criteria for the classification of a third state as a "safe third country" are set out in Annex I of the directive. The appropriate procedure is set out in Article 21.
The concept of "safe third country" proposed by the Commission is strictly related to the person of the asylum seeker. This follows from Article 18(c), according to which a third country has to "be considered as a safe third country for the applicant". Accordingly, there must be no grounds to assume that the country declared to be "safe" may not be considered a safe third country "in his or her particular circumstances" (cf. Article 22(c)).
According to Article 22, a state that pursuant to Annex I has been determined to be a "safe third country" can only be considered a safe third country "for a particular applicant" when the latter has "a connection or close links" there, or has had the opportunity to apply for protection while in that country. Furthermore, there must be a justified assumption that admission to the territory will take place.
The proposals of the Commission must be compatible with international standards. This guarantees the effective access to the procedure in a member state and guarantees refugees the granting of refugee status according to the Geneva Convention. Whereas, with the concept of the first country of asylum, there must be sufficient certainty of its taking back the applicant and continuing the protection, in the case of the "safe third state", according to the Comments on Article 22, there need be no express guarantee that the asylum seeker will be taken back. According to Article 22(b) a forecast to this effect is enough.
An exception to the legal claim to the examination of the asylum application within Community territory must, however, only be admitted if effective precautions are taken against the danger of successive, "chain" deportations. A forecast in the individual case that would replace the formal guarantee that the third country would take back the applicant is therefore incompatible with international law.
In its statement of May 1999 the UNHCR pointed out that the classical bilateral return agreements could not be applied due to their lack of protective provisions against refoulement. Rather, multilateral competence agreements were necessary for the examination of an asylum application. At any rate, asylum seekers should not be referred to a third country without an actual examination of the individual case. Sending the applicant back is only admissible under international law if the asylum seeker is re-admitted by this state, enjoys effective protection from refoulement, has the opportunity to seek and enjoy asylum there and is treated in compliance with international standards.
The Commission's proposal, particularly in Article 4, clarifies how the fundamental right to asylum proclaimed in Article 18 of the European Charter of Fundamental Rights can be put into practice. This is possible as a legal claim to access to an examination procedure and to the guarantee of the legal status of a refugee when the refugee status has been definitively established in a fair, efficient procedure.
The proposal does not regulate the question of the responsibility of the member state responsible for the examination of the asylum application. This will be left to a measure on asylum pursuant to Article 63(1)(a) of the Treaty establishing the European Communities which will replace the present Dublin Convention. The Commission developed this in outline in a working paper of 21 March 2000, pointing out the danger of successive deportations arising through the way in which the Dublin Convention is currently used. This danger can best be avoided by guaranteeing a legal claim to substantive examination of the asylum application within the Community.
The guaranteeing of an individual legal claim to effective access to a procedure, as proposed in the Commission's proposal is an integral part of a fundamental right to asylum. For this fundamental right to be applied in legal reality the asylum measure pursuant to Article 63(1)(a) of the Treaty establishing the European Communities must guarantee that this legal claim is guaranteed within the Community.
In addition, with its proposals concerning the review of a decision by the authorities, the Commission shows a pragmatic way of giving optimum form to the right to making an effective appeal as stipulated in Article 46 of the European Charter of Fundamental Rights. The right to asylum contained in Article 18 of the Charter can hereby be effectively protected as Community law.
In the present discussion about the immigration question conservative voices are demanding the revocation of the basic right to asylum in the interest of an effective harmonisation of asylum and refugee law in the European Union. The present Opinion shows that the traditional Community provisions of the Commission's proposal on minimum standards in asylum procedures do not call for the abolition of the basic right to asylum. Instead, the German basic right to asylum can be usefully and appropriately integrated into this harmonisation process.
However, transparent endeavours to base EU asylum policy exclusively on the interests of administrative efficiency are to be rejected. These attempt to bring proposals down to a level below the German legal standard[10] in order then to be able to demand the reduction of national legal standards by appealing to Community law. The European tradition of human rights and refugee protection runs counter to this, having been developed initially in the members states of the Council of Europe and the European Union. This historical process makes it clear that Europe has not witnessed a process of dissolving national legal protection systems in favour of one over-arching system; instead, the over-arching system integrates the different national constitutional traditions.
Nor will a common, binding procedural protection in the European Union call for competition with the protection under Germany's Basic Law. The proposal of the Commission, with regard to regular procedure, is in the tradition of the European Communities, guaranteeing an effective protection of fundamental rights. This tradition was expressly highlighted by the Federal Constitutional Court, when giving up its earlier objection to the legal acts of the Community which had appealed to the basic rights of the German constitution.[11] Back in 1986 it pointed out that a "degree of basic rights protection had grown up" in the jurisdiction of the Communities that was "to be substantially equated with the basic rights part of the Basic Law in terms of conception, content and effect".[12]
The expectation in Germany that the judicial review system will be weakened with the introduction of an institutional guarantee ("Institutsgarantie") is not supported by the European harmonisation process. The contrary is the case. The reducing of judicial review to an administrative appeal commission would, according to Article 38(2) of the proposal, entail a guarantee that decisions would be examined "on both facts and points of law" by an independent administrative court.
The criticism in Germany directed at the Commission's proposal is almost exclusively on the concept of "safe third countries". The proposal lacks the necessary clarity on this point. On the one hand, Article 22(c) gives the applicant the possibility of refuting the assumption that the safe third country is safe for him/her. In this connection Article 21(2)1 expressly stipulates that the national right of member states to determine safe third countries shall remain unaffected. Yet according to Article 21(2)2 member states have to observe provisions pursuant to Article 22. By contrast, the Comments on Article 21 state that there need be no actual individual case examination if a member state has already been classified as a safe third country on the criteria in Annex I. In addition, the member states, according to Article 33(2)(a), may depart from the rule that an appeal has a suspensive effect in cases in which a return to a country determined as safe is being considered.
The “safe third country provision” in Article 16a(2) Basic Law must therefore not be changed before the directive takes effect, despite the unclarity of the proposal. However, in view of Article 3 of the European Human Rights Convention the European Court of Human Rights has pointed out that regardless of generalising determinations of safety in a third country a specific examination of the individual case is always necessary.[13] For this reason the Memorandum for the Protection of Refugees sets out doubts under international law about the “safe third country regulation”, expressly demanding the insertion of a regulation on the rebuttable presumption of safety. Article 22 of the proposal contains this rebuttable presumption of safety.
After the accession to the European Communities of Germany's neighbouring states to the east the third country provision will lose its significance anyway. Then the referral of a refugee to a neighbouring state will follow Community law, i.e. the measure on asylum to replace the Dublin Convention. Then Germany will, in the framework of this Community measure on asylum, have to send asylum seekers on to neighbouring states. In any case, the important thing is that the member states observe the principle of non-refoulement. This requires access to an examination procedure in the Community territory if, by way of exception, there appears to be no guarantee that a third country would grant effective access to a fair examination procedure based on the rule of law.
[1] Action Plan of the Council and the Commission on how best to implement the Provisions of the Treaty of Amsterdam on an Area of Freedom, Security and Justice, §36 b) ii) iii), §38 b) i), Official Journal of the European Communities C 19/1 of 21 January 1999.
[2] Amnesty International, Arbeiterwohlfahrt Bundesverband e.V., Arbeitsgemeinscaft Ausländer- und Asylrecht im Deutschen Anwaltsverein, Caritas Germany, DGB Bundesvorstand, Referat Migration, Deutscher Paritätischer Wohlfahrtsverband, Deutsches Rotes Kreuz, Diakonisches Werk der EKD, Neue Richtervereinigung, Pro Asyl.
[3] European Court of Human Rights, decision of 7 March 2000 – No. 43844/98 – Newsletter on Immigration Law 2000, 321 – T.I. v. United Kingdom
[4] European Court of Human Rights, decision of 28 October 1999 – No. 40035/98 – Human Rights Law Journal, Vol. 20 (1999), pp. 508, 510 – Hoda Jabary.
[5] European Court of Human Rights, decision of 15 November 1996, no. 70/1995/576/662
[6] European Court of Human Rights, decision of 25 June 1996, no. 17/1995/523/609 – Neue Zeitschrift für Verwaltungsrecht 1997, 1102 – Amuur.
[7] European Court of Human Rights, decision of 2 May 1997, no. 146/1996/767/964 – Neue Zeitschrift für Verwaltungsrecht 1998, 161 – D. v. United Kingdom.
[8] Committee against Torture, decision of 4 July 1994, no. 15/1994, Human Rights Law Journal, vol. 16 (1994), pp. 426, 431 – Khan vs. Canada; likewise European Court of Human Rights, decision of 9 October 1998 – no. 59/1998/962/1177, §§13ff., 25, 30 – Hatami v. Sweden
[9] See Comments on Article 2
[10] As did Baden Württemberg in its proposal for a resolution, Bundesrat-Drucksache 768/00 of 22 November 2000.
[11] Federal constitutional court, decision of 29 May 1974, decisions of the federal constitutional court, vol. 37 (1974), pp. 271, 279ff. – Solange I.
[12] Federal constitutional court, decision of 22 October 1986, decisions of the federal constitutional court, vol. 73 (1986), pp. 339, 378 – Solange II; likewise federal constitutional court, judgement of 12 October 1993, decisions of the federal constitutional court, vol. 89 (1993), pp. 155, 174f. – Maastricht.
[13] European Court of Human Rights, decision of 7 March 2000 – No. 43844/98 – Nesletter of Immigration Law – T.I. v. United Kingdom