2 October 2002
Amnesty International's
Comments on the Commission's Proposal for a Council Directive on Minimum
Standards for the Qualification and Status of Third Country National and
Stateless Persons as Refugees or as Persons Who Are Otherwise in Need of
International Protection, COM (2001) 510 final
Amnesty International notes with great
interest the current negotiating process on qualification grounds for refugee
status and subsidiary forms of protection. Amnesty International believes that
the Council negotiations on the Commission proposal for a Directive on minimum
standards for the qualification and status of refugees and persons benefiting
from subsidiary protection is a decisive step in the establishment of a common
asylum system. Although the outcome of the informal Justice and Home Affairs
meeting, Copenhagen, 13-14 September 2002, appears to bring a positive
evolution in certain respects, Amnesty International wishes to raise concerns
on critical issues to be further debated by the Asylum Working Party in view of
the political agreement to reached at the JHA Council, 28-29 November 2002.
These comments complement the observations already submitted at the Copenhagen
meeting. It is to be noted that Amnesty's comments are limited to the provisions
related to qualifying articles (Chapters I-IV). Further comments will be
provided on the provisions dealing with the rights attached to the respective
status (Chapter V).
Regarding the qualifying articles, the
following elements are of particular concern to Amnesty International:
1.
Article 2 Definitions
● Joint Comments on Article
2© and (e) (to be read in connection with Articles 14 and 17): Linkage
Between Exclusion and Cessation Clause
Amnesty International is concerned that the
provisions of the Directive may lead to merge inclusion clauses together with
grounds for exclusion. As a consequence, exclusion of persons suspected or
convicted of crimes against security could happen before a full examination of
the merits of the claim. Amnesty believes that such development contradicts
with the guidelines set up in UNHCR Handbook which expressly acknowledges that
a person falling under an exclusion clause may still be in need of
international protection. The Handbook recalls that in applying article 1F, it is
also necessary to strike a balance between the nature of the offence presumed
to have been committed by the applicant and the degree of persecution feared.
If a person has a well-founded fear of very severe persecution, e.g.
persecution endangering his life or freedom, a crime must be very grave in
order to exclude him. If the persecution feared is less serious it will be
necessary to have regard to the nature of the crime presumed to have been
committed in order to establish whether the applicant is not in reality a
fugitive from justice or whether his criminal character does not outweigh his
character as a bona fide refugee.
Pursuant to these guidelines, Amnesty
International recalls that the application of exclusion clauses must be
proportionate and shall never precede the substantive examination of the asylum
claim.
● Article 2 (c) Refugee
A refugee is defined as "a third country
national or a stateless person" who fulfils the requirements of Article 1
A of the Geneva Convention. Amnesty International strongly opposes such a
restrictive definition since the exclusion of EU nationals is a violation of
the provisions of Article 3 of the Geneva Convention which prohibits any
discrimination based on the ground of nationality. Although it is very unlikely
that EU nationals may have a valid claim to apply for asylum, it must be
reminded that, pursuant to article 42, States parties to the Geneva Convention
may neither limit the personal scope of Article 1, nor make any reservation to
Article 3.
Amnesty International therefore recommends
to amend this provision in order to fully comply with the wording of Article 1A
of the Geneva Convention.
● Article 2 (d) Recognition
of Refugee Status
According to Article 2 (d), a refugee status
is defined as a status "granted" by a Member State. Amnesty
International believes that it contradicts the Geneva Convention that clearly
states that refugee status is actually "recognised" to the person in need of
international protection. The declaratory nature of the refugee status may be
explained by the fact that it is not the actual eligibility decision that makes
that someone is a refugee but the actual facts which have forced the refugee to
leave his country of origin or of former residence. Therefore, the eligibility
procedure only acknowledges a quality that did pre-exist. A person is a refugee
due to the facts that had motivated his fleeing his home country and not by the
Reception State's legal decision that grants him the refugee status.
In order to fully comply with the Geneva
Convention, Amnesty International therefore recommends replacing the word
"granted" by "recognised".
● Article 2 (g) Application
for International Protection
Amnesty International recommends to further
clarify the linkage between the Geneva Convention and subsidiary protection.
Article 2 (g) should clearly acknowledge the residual nature of
subsidiary forms of protection and the legal primacy of the 1951 Convention.
Amnesty International
believes that this article should further be strengthened in order to include the
obligation to examine the asylum claim under the Geneva Convention before
examining if the person is eligible to subsidiary protection.
● Article 2(j) and (k)
Family Members
Amnesty International believes that the
definition of family members should not be limited to the nuclear family but
should rather be kept flexible enough to encompass an unmarried partner who may
be of the same sex, dependent children of a married or unmarried couples
(regardless whether they are minors), and other dependent relatives such as
grandparents or grandchildren.
Amnesty International believes that the
definition of "accompanying family members" should not be restricted
to the family members of the applicant who entered the territory at the same
time as the asylum applicant. This definition should also cover joining
members.
► Amnesty
International recommends to amend the above mentioned provisions of Article 2
accordingly
2. Article 7 ― Assessment
of the Risk
Given the potential
seriousness of an erroneous negative decision, Amnesty International recommends
to further strengthen the provisions of article 7 in order to apply the burden
of proof in a more flexible manner. Indeed, objective evidence is frequently
unavailable or inaccessible. As a consequence, the competent authority must
give the applicant the opportunity to present a substantial description of the
circumstances of the case. For his part, the asylum seeker must duly co-operate
and give access to all available evidence. However, according to UNHCR EXCOM
conclusions, the recognition of refugee status is not dependent on the
production of formal evidence.
Amnesty International
believes that the burden of proof should be shared between the authorities and
the claimant. In the case where the claimant is unable to provide evidence, he
should be given the benefit of the doubt provided he is
co-operative and his explanation is credible and coherent.
►
Amnesty International recommends that article 7 shall be
amended accordingly
3. Article 8 ― Refugee
"sur Place"
Article 8 refers to
abuse of the asylum procedure and commitment to political activities for the
sole purpose of creating the necessary conditions for making an application for
international protection. Although Amnesty International acknowledges that
abuses may occur in some cases, Amnesty International wishes to recall the
fundamental importance of political rights, such as freedom of conscience and
expression, that are considered as jus cogens. Amnesty International
believes that asylum applicant should not ipso facto be refused
the right to engage into political activities.
Amnesty International
recommends that the asylum applicant should be recognised as a person in need
of international protection if the activities referred to in Article 8 para. 2
come to the notice of the authorities of the individual's country of origin, are
treated by them as demonstrative of adverse political or other protected
opinion or characteristic, and give rise to a well-founded fear of persecution.
►
Amnesty International therefore recommends that article 8
shall be amended accordingly.
4. Article 9
para. 1 ―
Persecution by Non-State Actors
Amnesty International welcomes the political evolution that has taken
place at the informal Justice and Home Affairs meeting held in Copenhagen,
13-14 September 2002, that indicates that non-state actors should be included
within the scope of the directive. Amnesty International urges the Council
to confirm this evolution, and thus to reach a formal agreement at the JHA
Council 28-29 November 2002. Such an approach would be consistent with accepted
interpretations of international refugee law.
Amnesty International
recalls that a restrictive interpretation is clearly in contradiction with the
wording of Article 1A of the Geneva Convention, which does not refer to the
author but rather to the grounds of such persecution. According to UNHCR, the
essential element for the extension of international protection against
persecution is the absence of national protection, irrespective of whether this
absence can be attributed to an affirmative intention to harm on the part of the
State. A situation in which the State is incapable of providing national
protection against persecution by non-government agents clearly renders the
individual unable to avail himself of the protection of his country of origin.
This means that
non-state actors can be considered as agents of persecution for the purposes of
the Geneva Convention where persecution is carried out by:
a) non-state
actors and the State is unwilling to protect because it condones or tolerates
the persecution;
b) quasi-states
or de facto authorities or armed political groups;
c) non-state
actors and the State is willing but unable to protect;
d) non-state
actors in situations of total collapse of government power and there is no
State to provide protection.
Finally, it must be
recalled that to exclude non-state actors of persecution would not only be
inconsistent with international refugee law but would also go against the
latest developments in Austria, France and Germany, three Member States who
have, until recently, been opposed to granting refugee status on the basis of
the Refugee Convention to victims of non-state actors[1].
►
Amnesty International therefore strongly supports the
proposal of the Commission to include non-state actors of persecution within
the scope of article 9.
5. Article 9 para.
3 ―
Protection by Non-State Actors
Amnesty International strongly
opposes
the proposal that protection from persecution or serious unjustified harm may
be provided by international organisations or de facto authorities
or international organisations.
A de jure recognised
authority that can be held accountable for its actions both internationally and
nationally, and not a quasi-state, should deliver protection. State-like
authorities are not or cannot be parties to international human rights instruments
and therefore cannot be held accountable for non-compliance with international
refugee and human rights obligations.
Having regards to areas
controlled by State-like authorities, Amnesty International believes that
that, apart from exceptional cases, there is hardly any security in those
areas. State-like authorities are often unable to establish a sustained and
undisputed control over a territory and these areas that may be attacked at any
moment by governmental forces. Therefore, Amnesty International calls on Member
States not to return individuals to such areas.
Similarly, the fact that
a territory is under whole or partial control by a UN civilian and/or military
administration should never be seen as a guarantee of being able to provide
protection. Having regard to international organisations, recent history has
proved that these organisations often do not have the necessary means to
prevent human rights violations and to ensure a reasonable degree of security.
Example can be drawn from the case of Sebrenica where the population has
undergone ethnic cleaning and massive violations of human rights while the city
was still protected by the United Nations.
►
Amnesty
International therefore recommends the deletion of this paragraph
6.
Article 10 ―
Internal flight alternative
Amnesty International
welcomes the safeguards included in the Commission's initial proposal. In
particular, Amnesty International
strongly supports the provisions of Article 10 para. 2 namely that
there is a strong presumption against finding internal protection to be a
viable alternative to international protection if the agent of persecution is,
or is associated with, the government.
Nonetheless, Amnesty
International believes that Article 10 should be further strengthened in order
to counteract the increasing tendency of States to impose a nearly impossible
duty on asylum seekers to demonstrate a countrywide risk of being persecuted.
However, Amnesty
International believes that the mere absence of a risk of persecution in a
substantial part of a territory is not enough to determine the existence of an
internal protection alternative. In assessing whether such an alternative
exists in a particular case, Member States shall take into account the personal
profile of each individual. In this context, no refugee should be returned to
another area of their country of origin unless an examination of the individual
case shows that the human rights situation there is stable, and that the
individual will have real and effective access to protection in this area. The
individual must also be protected against direct or indirect refoulement
towards a territory where he may be subjected to persecution. If any of these
criteria cannot be satisfied, there is no internal flight alternative.
►
Amnesty International therefore recommends Article 10 to
be amended accordingly.
7.
Article 11 ―
Acts of Persecution
The term persecution is
defined in terms of a well-founded fear of « serious and unjustified harm ». The
reference to "unjustified harm" can also be found in several Articles
of the draft directive, such as articles 2 or 15. According to the Explanatory
Memorandum, the term "unjustified is added to the definition of serious
harm in order to reflect that there are circumstances in which a state may be
justified in taking measures that cause harm to individuals, such as public
emergency or national security".
Amnesty International
considers that this wording shifts the focus from the individual's enjoyment of
rights and freedoms and its needs for protection to inviting the analysis to be
focused on whether the harm may or may not be justified from the perspective of
the state. Amnesty International recalls that the jurisprudence of the European
Court of Human Rights has firmly affirmed that, even in case of public
emergency, Contracting States may never derogate from key provisions of the
1950 Convention (such as the right to life, the prohibition of torture, inhuman
and degrading treatment). Furthermore, even in the case where a State is
allowed to derogate from the provisions of ECHR on grounds of public order or
internal security, such acts may amount to persecution if it constitutes a
sustained or severe violation of a basic human right.
►
Amnesty International therefore calls on the Council to
delete the word « unjustified » in these and other
relevant provisions in order to bring the provisions of the directive in line
with Member States' international obligations.
8.
Article 12 (d) ― Membership of a Particular Social Group
Amnesty International welcomes the interpretation of membership of a
particular social group included in article 12 (d). In particular, Amnesty
International strongly supports the provisions on persecution on the grounds of
sexual orientation or gender. This interpretation is already reflected into
Member States' practice. Although Member States used to be reticent to extend
protection to victims of gender-based persecution, one can note a particularly
significant evolution since 1996. Indeed, systematic use of sexual aggression
and rape campaigns as an instrument of ethnic cleansing during the Yugoslavian
or Rwandan conflicts fundamentally altered their attitude in this regard. From
1995-1996 onwards, Member States (such as France, Germany Austria, Belgium,
Ireland, United Kingdom, the Netherlands and Portugal) have extended protection
to victims of gender-based persecution, notably when they are used as
instruments of war or in context of fundamentalist religious policy and/or
practice[2].
However, Amnesty International believes that this provision could further
be strengthened. Indeed, according to the explanatory memorandum, "a group
may be defined by a fundamental characteristic, such as gender, sexual
orientation, age, family relationship or history, or by an attribute which is so fundamental to identity or conscience
that members of the group should not be required to renounce it, such as trade
union membership or the advocacy of human rights".
► Amnesty International recommends that the motives
exposed in the explanatory memorandum should be reflected within the body of
article 12.
9.
Article 15 ― Subsidiary protection
Amnesty
International asks the Council to affirm that the establishment of
complementary protection regimes should in no case prevent individuals who
fulfill the criteria set out in the UN Refugee Convention from having their
refugee status recognized.
Amnesty International
calls on the Council to include an express obligation to provide
subsidiary protection to individuals who do not fall within the scope of the
Geneva Convention but who are otherwise in need of international protection.
Indeed, the final objective of the directive, (i.e. that a minimum level of
protection is available in all Members States) would be undermined if the
granting of subsidiary protection is left to the discretion of Member States.
Regarding the personal scope of subsidiary
forms of protection, Amnesty International wishes to submit the following
observations:
● Article 15
(a) ―
Death Penalty or Execution
Amnesty International
welcomes the inclusion of an express reference to death penalty or execution,
which is in line with Member States obligation under Article 1 of the 6th
Protocol to the European Convention of Human Rights.
● Article 15 (b) ― Torture or
Inhuman or Degrading Treatment or Punishment forcing an applicant to leave or stay outside his or her
country, or in case of stateless persons, his or her country of former habitual
residence
Article 15 (b) reflects Member States
obligations regarding the principle of non-refoulement, that is widely
reflected into international human rights instruments, such as article 3 of the
European Convention on Human Rights, article 3 of the United Nations Convention
Against Torture, article 7 of the International Covenant on Civil and Political
Rights. The principle of non-refoulement is now considered to be part of
international customary law.
Amnesty International welcomes the inclusion
of such provision, which reaffirms Member States' obligations.
● Article 15
(c) ―
Serious threat to life or physical integrity (or freedom from unlawful detention) by reason of indiscriminate
violence or arising in situations of international or internal armed conflict
Amnesty International welcomes the
introduction of new grounds of protection that reflects the evolution of the
need of international protection linked to post war conflicts where civilians
are not necessarily exposed to individual threat of persecution, but are rather
exposed to situations of indiscriminate violence.
This ground for
protection is widely reflected into practice since all Member States, except France
and Denmark, have already adapted their national legislation or administrative
practice in order to grant protection to persons who have been forced to flee
their country for reasons of indiscriminate violence arising from situations
such as civil wars, armed conflict or circumstances which have seriously
disrupted public order.
Furthermore, Member
States have already agreed to protect such category of persons within the
framework of the Recommendation (2001) 18 adopted by the Council of Ministers
of the Council of Europe on 27 November 2001. Since all EU Member States are
also members of the Council of Europe, Member States should not depart from the
principles on which they have agreed within the framework of this organisation.
● Article 15
(d) ―
Acts or treatment outside the scope of litra a-c in an applicant country of
origin, or in case of stateless persons, his or her country of former habitual
residence, when such acts are sufficiently severe to entitle the applicant to
protection against refoulement in accordance with the international obligations
of Member
States
Amnesty International is
highly concerned by the new version of article 15. Contrary to the original
proposal submitted by the Commission, Amnesty International believes that this
new version does not allow for the flexibility of conferring extraterritorial
effects
on international human rights norms additional to the prohibition of
torture. As a consequence, persons
who may not be removed in application of other relevant provisions of the ECHR
(such as Articles 6 and 8) will not fall within the scope of the directive.
In this respect, Amnesty
International recalls that the Court has clearly established that the
responsibility of Contracting States could be engaged in case of indirect refoulement
(Cruz Varas vs. Sweden, judgement of 20 March 1991, para.69). In the
Loizidou case, the Court has further developed its reasoning by stating that
"(…) the responsibility of Contracting Parties can be involved
because of acts of their authorities, whether performed within or outside
national boundaries, which produce effects outside their own territory” (Loizidou, judgement
of 23 March 1995, para. 62). In the case of the right to respect for private
and family life, the European Court of Human Rights has found that, under
certain circumstances, the decision to expel an individual may constitute a
breach of Article 8 (see for instance Beldjoudi vs France, judgement of 26 Mars
1992). In the Soering case, the European Court held that the right to a fair
trial holds such a prominent place in a democratic society that a decision to
remove a person to a place where he may face a flagrant denial of this right
would engage the returning State's obligation under Article 6 (judgement of 7
July 1989).
►
Amnesty International therefore recommends amending this
provision in order to bring it in line with the jurisprudence of the European
Court of Human Rights regarding Member States' extraterritorial obligations.
10. Joint Comments on Articles 14 and 17 ―
Exclusion from Clauses
● Grounds
for Exclusion
Amnesty International
recalls that, given the serious consequences of exclusion for the person
concerned, the interpretation of such clause must be restrictive. Amnesty
International therefore believes that Article 14 and 17 of the directive should
strictly reflect the wording of Article 1F. Criminal offences falling outside
the scope of Article 1F shall by no mean lead to exclusion.
● Removal
While a decision to
exclude a person in application of Article 14 or 17 of the directive removes
the applicant from the right to protection, it does not follow that a State can
remove the individual as a consequence. Pursuant to the principle of
non-refoulement, Amnesty International opposes the forcible return of anyone to
a country where they would be at risk of serious human rights abuses by states
or non-state actors, including torture, unfair trials and the death penalty.
►
Amnesty International
therefore recommends retaining the safeguards included in articles 14 para.4
and 17 para. 4.
● Detention and Prosecution
In their wish
to enhance security, Member States must not resort to the detention of
asylum-seekers in ways contrary to international law and standards. No asylum
seeker should be detained unless it has been established that detention is
necessary, is lawful and complies with one of the grounds recognised as
legitimate by international standards. In all cases, detention should not last
longer than is strictly necessary. All asylum seekers should be given adequate
opportunity to have their detention reviewed (both on its legality and of its
necessity) by means of a prompt, fair, individual hearing before a judicial or
other similar authority whose status and tenure afford the strongest possible
guarantees of competence, impartiality and independence. Amnesty International
opposes the practice of detaining asylum-seekers when adequate and effective
safeguards do not exist or are not followed.
Amnesty
International believes that in cases where an asylum-seeker is found after a
fair procedure to be a suspect of crimes under international law (such as
genocide, war crimes, crimes against humanity, torture, extra-judicial
executions and “disappearances”), he/she should be referred to the
relevant prosecution authorities for the purposes of prosecution (consistent
with international human rights law and standards) or the individual should be
surrendered to another State to be prosecuted (consistent with international
human rights law and standards).
► Amnesty International recommends following these
guidelines when prosecuting persons falling under an exclusion clause
Article
19 ―
Protection from Refoulement and Expulsion
Amnesty
International recalls that the principle of non-refoulement is embodied in a
great number of international instruments and is now considered as a principle
of customary international law. Although article 33.2 of the Geneva Convention
contains exceptions to the non refoulement principle, such exceptions are not
reflected in other international instruments such as Article 3 of the Convention against
Torture, Article 3 of the European Convention of Human Rights, or Article 7 of the International Covenant
on Civil and Political Rights. There is clear support in the jurisprudence of
the European Court of Human Rights and of the UN Human Rights
Committee, for taking the position that, where people risk torture or other forms
of cruel, inhuman or degrading treatment or punishment, the prohibition of refoulement
is absolute.
Therefore, persons with refugee status or with
subsidiary forms of protection shall never be returned to countries where such
removal would contradict the non-refoulement principle in relation to Article 3
ECHR, and other relevant international instruments.
►
Amnesty International
recommends that article 19 should reflect Member States' international
obligations and in particular this provision should acknowledge the absolute
character of the non-refoulement principle embodied in Article 3 of the Convention against Torture, Article 3 of the European
Convention of Human Rights, or
Article 7 of the International Covenant on Civil and Political Rights
[1] Austria: Federal
Administrative Court, 9 October 1997, 95/20/0679; France, Refugee Appeal Board,
Bouziani, 06.10.1997, req. n° 301746. Germany, Federal Constitutional
Court, judgement of 10.08.2000, n° 2 BvR 260/98, 1353/98, p.7. Following
this decision, Germany has recently changed its legislation, which now includes
non-State actors of persecution.
[2] Austria: Administrative
Court, decision of 11.10.2000, 2000/01/0141 and of 31.05.2000, 97/18/0579;
Germany: Administrative Court of Appeal of Bäden-Wurttemberg, Inf AuslR,
1990, 346; Belgium: Permanent Refugee Appeal Board 21.10.1998, n°
97-2568/F54; France, Conseil d'Etat, Ourbi, 23.06.1997; the Netherlands,
Afdeling bestuursrechtspraak van de Raad van State, 07.11.1996, RV, 1996, 6;
Rechtbank 's Gravenhage zp Zwole 27.05.1998, RV 1998 7. UK: RV SSHD ex parte
Shah & Islam, 1999, Imm AR 283.