UNHCR Observations on the
1. This proposal aims at enforcing
the transfer of a person from one Member
State
to another for the purpose of criminal prosecution, replacing the existing
extradition procedures. UNHCR's
interest in this proposal is engaged only in so far as it may affect refugees
and asylum-seekers. As the 1951
Convention relating to the Status of Refugees in no way extends immunity from
prosecution to refugees who have committed criminal offences, the proposal
would apply to asylum-seekers and refugees in one Member State who may be
accused of having committed crimes in another Member State, as it would to
other persons.
2. Under the proposed scheme a
refugee could therefore be transferred from one Member State (which has
recognised the person as a refugee) to another Member State for prosecution. As
long as the crime for which the refugee is tried, and if convicted, punished,
is not of the nature or severity to invoke Article 33(2) of the 1951
Convention, the refugee protection of the person should not be affected by the
transfer and prosecution. This means,
inter alia, that the protection against expulsion and refoulement contained in Articles 32 and 33 of the 1951 Convention continue to
apply. Appropriate safeguards
would therefore have to be built into the Decision which would ensure that the
protection of refugees is not undermined by its operation. This would entail
suitable measures to be in place to ensure that refugees are properly
identified as such, that their protected status would be retained (with the
exception of Article 33(2) cases) in the Member State responsible for their
protection and that return arrangements to the Member State where they are
recognised are in place after prosecution or, at the very least, after serving
the sentence.
3. Similarly, the situation of
asylum-seekers would require particular attention. UNHCR would suggest that if
an asylum-seeker in one Member State is transferred to another Member State
pursuant to the Decision, the asylum procedure in the first State should be
suspended. Then, after the resolution of the prosecution, whether by acquittal
or conviction and sentence, the asylum-seeker should be returned to the State
responsible for determining the asylum claim, and consideration of the case
resumed to its final conclusion.
4. Consequently, for both refugees
and asylum-seekers, the special nature of their situation should be reflected
accordingly in additional provisions under Chapter V (Special Cases). Article
36 of the proposal, in an amended form, could also be clarified in that such a
return condition could be imposed also in cases of refugees and
asylum-seekers. In the absence of
such measures, it is conceivable that refugees or asylum-seekers would lose
their status and the rights attached thereto, and, in a "worst case"
scenario, be expelled by the receiving State after having served a sentence,
with the consequent threat of exposure to refoulement.
5. The proposal eliminates the “non-persecution” clause, which
was incorporated in
the
1996 Convention relating to Extradition between the Member States of the
European Union by the reference –made in Article 5(3) of that
Convention– to Article 5 of the 1977 European Convention on the
Suppression of Terrorism and to Article 3 (2) of the 1957 European Convention
on Extradition. The 1996 Convention also includes an Annex in which the Member
States declare the Extradition Convention is without prejudice to the
application of the provisions of the 1951 Convention and its 1967 Protocol.
UNHCR would strongly recommend that the above safeguard also be included in the
replacement scheme. Moreover,
while the explanatory memorandum mentions, for instance, the applicability of
the European Convention for the Protection of Human Rights and Fundamental
Freedoms, in UNHCR's view, this point deserves to be made in the Decision
itself. This is all the more
important since the enlargement process also includes countries (or potential
countries) with less developed human rights systems, to which this Decision
would also be applicable once they became Members of the Union.
6. The proposal also does away with the “political offence
exemption”. It is noted that
the
possibility of invoking such an exemption had already been curtailed by the
1996 Convention relating to Extradition, in so far as under Article 5 (2) of
that instrument States may, at their discretion, decide whether to apply it or
not. Although UNHCR has reservations about such a formula (as expressed in the course of the adoption
of the 1996 Convention) it considers that the Council Decision should, at the
very least, retain the power of Members States to apply the political offence
exemption.
7. The European Union is an
influential player in the international standard-setting arena, and the
instruments adopted in the Union are often used as models in other parts of the
world. While in general recognition of and respect for human and refugee rights
is high in European Union states, the "export" value of instruments
that do not contain explicit legal safeguards to other regions with less
well-developed systems of human rights protection is worrisome, since it could
have the potential of undermining existing human rights and refugee protection
principles. It is also for this
reason that UNHCR urges the adoption of appropriate safeguards in the Decision.
UNHCR
Geneva
October
2001