1. Introduction
1. Imagine that your house is burnt down by skinheads,
that you barely manage to escape and when you call the police, they
refuse to help you. Imagine that you have never had a real opportunity
to go to school. Furthermore, imagine that your mother or father
needs urgent medical care, but when you call for an ambulance, you
are told that it does not go to the area where you live. Or imagine
coming to your senses after having given birth, only to find that
doctors have sterilised you without your consent. If you are one
of the 10 to 12 million Roma in Europe today, this will be no question
of imagination.
The
chances are that you will have experienced one or other of these
forms of ill-treatment, or many other human rights violations.
2. In the last few years, Roma have increasingly found themselves
victims of even more serious violations of their human rights. This
violence, which has caused several deaths and many injuries, is
the manifestation of increasingly racist sentiments in the countries
concerned, including by neo-Nazis. As a result, many Roma have been
forced to leave their countries and claim asylum elsewhere. Many
hundreds of Roma, for example from the Czech Republic, were granted
refugee status in Canada in 2008 and 2009.
3. Some Roma opt to apply for asylum in another European Union
member state, which is relatively close to their home country and
where they would expect protection. The European Union legislation,
however, provides that all European Union countries shall be deemed
“safe countries of origin” in terms of asylum and that complementary
protection on humanitarian grounds shall be available only for persons
coming from non-EU member states and stateless persons. For example,
Hungarian Roma who applied for asylum in France in 2009 were thus
turned down.
4. In several member states, in particular in France and Italy,
the summer of 2010 was marked by statements by high-ranking officials
depicting Roma migrants collectively as criminals. In a statement,
the European Commission against Racism and Intolerance (ECRI) has
denounced the fact that Roma migrants have been “singled out for
abusing EU legislation on freedom of movement”.
In
a press release dated 20 August 2010, the President of the Parliamentary
Assembly, Mevlüt Çavuşoğlu, also reacted to the recent developments
in several European countries, particularly concerning evictions
of Roma camps in France and expulsions of Roma from France and Germany,
noting that they “are certainly not the right measures to improve
the situation of this vulnerable minority. On the contrary, they
are likely to lead to an increase in racist and xenophobic feelings
in Europe”.
5. It is indeed frightening that systematic racist violence may
occur in a member state of the Council of Europe and that its citizens
feel forced to seek protection in other countries. Signatories to
the European Convention on Human Rights (ECHR) owe an obligation
to protect everyone within their jurisdiction. Furthermore, it is
highly unsatisfactory that the rules of the European Union are such
that the people concerned are faced with three equally negative
options: to seek asylum outside the European Union (which can be prohibitively
expensive and requires travel documents), to live as irregular migrants
in the country of asylum once they are refused (without access to
housing, health care or education) or to stay in their home country and
face persecution. The rapporteur considers that the European Union
should reassess its rules in order to avoid this state of affairs.
He also considers that member states of the Council of Europe should
do their utmost to prevent racism and violent acts from occurring
and, if they still do, to abide by the rule of law and bring the perpetrators
to justice. Impunity for crimes and human rights violations, which
often forces people to flee, must be eradicated once and for all.
6. Many thousands of former Roma asylum seekers are facing return
from western European countries to Kosovo, having lived between
six and eleven years in the returning countries. Around 10 000 Roma
in Germany alone are waiting to be returned to Kosovo. The UNHCR,
in its Eligibility Guidelines of November 2009, believes that Roma
continue to face a particular risk of persecution or serious harm
in Kosovo, including through cumulative discriminatory acts.
7. The Council of Europe Commissioner for Human Rights has advised
against the return of Roma to Kosovo, in view of risks to their
personal security and considering the difficulties of reintegration
and the lack of sustainability of the return. Notwithstanding these
concerns, western European countries continue to organise forced
returns of Roma to Kosovo. In Kosovo’s neighbouring countries, many
Roma are waiting in limbo either to go back to Kosovo or to stay
on, and are having difficulties accessing social rights. The rapporteur
shares the concerns of the UNHCR and the Commissioner for Human
Rights and considers that Council of Europe member states should
not go ahead with returns, but should seek durable solutions for
the Roma respecting their rights and dignity.
8. The Assembly’s Committee on Legal Affairs and Human Rights
has recently approved a report entitled “The situation of Roma in
Europe and relevant activities of the Council of Europe” (
Doc. 12174, rapporteur:
Mr József Berényi, Slovak Republic, EPP/CD). That report explicitly
omits the issue of the right to free movement and asylum of Roma,
preferring to leave the issue to be dealt with more fully in the
present report. In the drafting of this report, the rapporteur has
been greatly assisted by UNHCR, the European Roma and Travellers
Forum, the NGO Romano Chachipe, the Council of Europe Roma and Travellers
Division and the Council of Europe Co-ordinator on Roma Activities.
He warmly thanks them for their valuable contributions. The rapporteur
has carried out two fact-finding missions, to Germany and to Kosovo.
He extends his gratitude to the authorities and organisations which
he met during these visits and which provided crucial information.
2. Roma asylum seekers in Europe
9. On 2 August 2009, unknown men broke into a house
on the outskirts of the Roma settlement in the village of Kisléta
in north-east Hungary and fired shots at the people living there,
including a 45-year-old woman and her 13-year-old daughter. The
mother died immediately and the girl was severely injured. In addition
to the cruelty of the act, it can be noted that 2 August is the
remembrance day for the victims of the Samudaripén (“murder
of everyone” in Romani) – the genocide of Roma during the Second
World War, during which almost one million Roma were systematically
killed.
10. Roma have been exposed to violence since arriving in Europe
from India in the 14th century. Now they have once again become
targets not only of discrimination, but of outright racist violence.
The concerns addressed in this report stem from the incidents of
violence and racism towards Roma today which have forced them to
leave their homes in order to apply for asylum in other countries,
some of which are member states of the European Union. During 2008
and 2009, the European Roma Rights Centre documented
attacks
targeting Roma in Hungary, the Czech Republic and the Slovak Republic
which have already taken the lives of nine people and have left
dozens of others with serious injuries. Many of the attacks have
been aimed at families and children and have involved firebombing,
shooting, stabbing and beating. The cases reported by the European
Roma Rights Centre of course only include those that have come to
the knowledge of the centre and there might be further cases.
11. According to the non-exhaustive list prepared by the European
Roma Rights Centre, between January 2008 and June 2009, the Czech
Republic saw three arsonist attacks against Roma, several marches
by right-wing extremists toward Roma settlements and several beatings.
At least three Roma suffered life-threatening injuries.
These
acts of violence, which included a petrol bomb attack that left
a baby girl in hospital, had reportedly followed a rise in far-right
extremism in the Czech Republic with neo-Nazi marchers targeting
Roma communities. On 17 November 2008, for example, far-right supporters
armed with stones and petrol bombs besieged a Roma community in
the Czech town of Litvinov and were prevented from attacking the
community only by police intervention. During the spring of 2010,
there were several new cases of Molotov cocktails being thrown at
houses inhabited by Roma.
12. In 2008, 792 persons (presumed to be Roma) from the Czech
Republic applied for asylum in Canada. For the first half of 2009,
the number of asylum applications lodged by Czech Roma exceeded
1 000. A number of the asylum seekers successfully claimed, under
the 1951 Geneva Convention Relating to the Status of Refugees (the
1951 Geneva Convention), that they had been subject to persecution
in the Czech Republic. Decisions by the Immigration and Refugee
Board were supported by extensive country-of-origin research, including
the findings of Immigration and Refugee Board officials who visited
the Czech Republic. About 40% of the applicants from 2008 were granted
refugee status in Canada.
13. According to the list prepared by the European Roma Rights
Centre concerning Hungary, between January 2008 and April 2010,
46 attacks were committed against Roma and/or their property in
that country. These attacks took a total of nine lives, including
two minors, and left dozens of people with injuries, 10 of which were
life threatening. In at least 11 cases, Molotov cocktails were used
and in two cases hand grenades. In at least 11 cases, shots were
fired and in at least nine cases, Romani property was vandalised.
14. In the spring of 2009, a group of 30 Roma families from Hungary
arrived in Strasbourg, France, where they applied for asylum. They
were refused both refugee status and complementary protection, the
formal reason being that they were nationals of another European
Union member state. During 2008, 302 Hungarians, who were presumably
also Roma, applied for asylum in Canada and 791 applied during the
first six months of 2009.
15. The attacks in these countries have occurred in an increasingly
racist climate, where extremist and openly racist groups engage
in hate speech and organise anti-Romani marches through the very
villages where Roma people are being attacked or killed. The violence
has been entirely indiscriminate but nevertheless directed at Roma
victims. This shows that the violence is purely racist and not connected
to any pre-existing feuds or quarrels between the perpetrators and
the individual victims. It should, however, not be forgotten that,
according to unofficial sources, around 1 400 Roma from Kosovo applied
for asylum in Hungary in 2008 and 2009.
16. Roma have been subjected to murderous violence also in other
member states of the Council of Europe.
The European Court of Human
Rights has found violations of the European Convention on Human Rights
in several cases concerning racist killings of Roma by policemen
and the impunity of the perpetrators (Bulgaria),
the
lack of proper investigation and redress following pogroms initiated
by the local population and tacitly accepted by municipal authorities
(Romania)
and
the lack of proper investigations into racially motivated violence
against Roma (Greece and Croatia).
17. Although the threat and violence against Roma is worse in
parts of central and eastern Europe, the situation is not good in
western Europe either. In June 2009, over 100 Romanian Roma in the
United Kingdom were forced to leave their settlements as a result
of racist attacks.
Another illustrative example occurred in
a French town, where a mayor staged the burning of abandoned Roma
caravans, cheered on by locals.
18. The report by the Committee on Legal Affairs and Human Rights
gives
examples of a number of violent attacks against Roma in Italy (paragraphs
22-25) and so has the Commissioner for Human Rights following his visits
to Italy in 2008 and 2009.
These
attacks have included the firebombing of several Roma camps that have
been burnt down, as well as attacks on individual Roma.
Italy
has hitherto been a country of Roma immigration, but if the authorities
are not able to prevent the violence described, Roma in Italy are
likely to go elsewhere in order to seek protection.
19. There are a great many positive projects in Italy with regard
to Roma, in particular carried out by NGOs and religious communities.
This is not, however, a reason for refraining from highlighting
the problems that are currently occurring in Italy, as positive
actions unfortunately do not neutralise negative actions. One good example,
however, at a local level is the response by public authorities
to the violent attacks, including arson, against Roma in the Ponticelli
district of Naples, as described by the European Union Agency for
Fundamental Rights.
20. Even if Roma in western Europe have, for the most part, not
been exposed to the level of violence described above, they do suffer
from prejudice, xenophobia, discrimination and exclusion. Not only
is this intrinsically wrong and a violation of the human rights
of the persons concerned, but history also shows, that it does not
take much in order for such sentiments and situations to quickly
translate into violence – and for violence to spread.
21. Following the rise in anti-Roma sentiment and violent incidents
in several European countries, in November 2008 the United Nations
Special Rapporteur on Racism stated that “such actions reveal serious
and deep-rooted problems of racism and discrimination against Roma
at the heart of modern Europe that must be addressed in the most
vigorous manner and through the rule of law”.
The
European Commission against Racism and Intolerance (ECRI) stated
in 2008 with regard to Italy that “Roma and immigrants have been
the subject of violent racist attacks and entire communities have
been held responsible for criminal acts committed, or allegedly
committed, by individuals from these communities. In this context,
ECRI particularly regrets the persistent racist and xenophobic discourse
by some Italian politicians, even at the highest levels, and in
the media. It is also concerned that, in this critical situation,
the Italian authorities are taking measures whose conformity with
national and international human rights standards is questionable”.
22. The rapporteur firmly agrees with these opinions and therefore
urges the Council of Europe member states in which Roma are targets
of violence, to immediately do their utmost to stop the violence
and bring those responsible to justice.
23. It is sometimes claimed in the general discourse that the
Roma who seek asylum are in fact fleeing a difficult situation in
terms of social and economic living conditions, rather than persecution.
The European Union Agency for Fundamental Rights identifies two
push factors with regard to Roma migration: poverty and racism.
Today, Roma continue to suffer heavily
in all sectors of life. Their life expectancy is twelve years below
the general average. Their settlements are often undignified slums
without access to heating, running water or garbage collection.
They often lack access to education, employment, housing and health
care. They often face open discrimination. The European Committee
of Social Rights has repeatedly found that countries fail to honour
their obligations under the revised European Social Charter as concerns,
for example, the right to health care or to housing.
In
fact, in many places in Europe today, as regards their social situation
and exposure to discrimination, Roma face a situation of de facto
apartheid. This is unacceptable.
24. It is understandable that people living in such conditions
leave their countries in order to seek a better life elsewhere.
This, however, does not change the fact that Roma are also fleeing
racist violence and the threat of new eruptions of violence. The
rapporteur would like to emphasise the fact that Canadian asylum
officials visiting the Czech Republic found the conditions to be
such that they were prompted to grant refugee status to Roma from
that country.
25. The rapporteur urges the member states of the Council of Europe
to take immediate action in order to improve the opportunities of
Roma in society, eradicate all forms of discrimination and racism
and promote mutual understanding between Roma and non-Roma. This
is a necessary step to overcome the problems that force Roma to
flee. Social exclusion, discrimination and lack of knowledge about
Roma among the general population are part and parcel of the overall
problem which has recently regrettably come to include also physical
violence and killings. There is a pressing need to deal with this
issue if Europe wishes to retain its credibility in terms of human
rights. In so doing, it is proposed that actors draw inspiration
from the Council of Europe Dosta! campaign and the “Common Basic
Principles on Roma Inclusion” as elaborated by the 1st meeting of
the integrated European Platform for Roma Inclusion in April 2009.
The Dosta! campaign provides a tool kit on how to fight prejudice
against Roma and the common basic principles are a set of general
policy approaches based on best practice from European countries.
26. An important point is the leadership of authorities and politicians
in the countries concerned. Extremists may feel that they have a
license for their attacks when the message they receive from their
government in other spheres is that the Roma are a problem. The
rapporteur is consequently of the opinion that politicians must
strongly and publicly condemn all forms of racism and stigmatisation
of Roma.
27. In some countries, the media hands extremists a platform from
which they can disseminate erroneous and prejudiced information
which contributes to consolidating xenophobia and which can incite
violence. Whilst freedom of expression is of crucial importance
in a democratic society, the media has an ethical and professional
obligation regarding the presentation of material which may give
rise to offence or even physical harm, as in the case of hate speech.
28. Media, whether public or private, must not be allowed to disseminate
hate speech directly, or indirectly, by broadcasting in an inappropriate
way events such as marches or speeches, where third parties are disseminating
hate speech. If racist or xenophobic information is relayed in some
way, it must be counter-balanced by the journalists responsible.
In other words, neo-Nazi
and other far-right groups should be denied publicity through the
media so that hate speech can be properly curtailed. The European
Court of Human Rights has stated that “the tolerance and respect
of the equal dignity of all human beings is the foundation of a
democratic and pluralist society. As a result, one may in principle
deem it necessary, in a democratic society, to sanction or even
to prevent all forms of expression, which propagate, incite, promote
or justify hatred based on intolerance, provided that all ‘formalities’,
‘conditions’, ‘restrictions’ or ‘sanctions’ imposed are proportionate to
the objective sought”.
In
combating hate speech, member states should follow Recommendation
No. R (97) 20 of the Committee of Ministers of the Council of Europe
on “hate speech”.
29. Countries of destination in western Europe are not without
responsibility either. France and the United Kingdom, for example,
have attempted, more or less unsuccessfully, to pressure Romania
and the Czech Republic into obstructing Roma who wish to leave these
two latter countries and go to France and the United Kingdom. This
has led to a widespread perception in countries of origin, that
“Roma are harming their reputation abroad”.
In receiving countries,
the arrival of several hundred Roma from another country can trigger
front-page news in the media for days.
30. The rapporteur considers that the Committee of Ministers should
consider the media situation in member states as far as the dissemination
of hate speech and the expression of racist ideas and prejudice
against Roma are concerned, as well as the demonisation of Roma
migrants and asylum seekers, and propose relevant action as necessary.
It is of great importance that victims of hate speech in the media
are provided effective legal remedies. ECRI could also take further
action on this issue.
3. Refugee status and the right to movement within
the European Union
3.1. European Union legislation
31. Typically (or historically), the many asylum seekers
who lodge their applications within the European Union come from
countries outside the Union. The critical issue addressed in this
section of the report concerns those individuals from within the
European Union who are forced to seek asylum in another Union country.
32. “Protocol No. 29 annexed to the Treaty establishing the European
Community – Protocol (No. 29) on asylum for nationals of Member
States of the European Union (1997)” sets out specific procedures
that are to be applied to the handling of any claim for asylum made
by a national of a European Union member state. It provides that
European Union member states shall be regarded as constituting "safe
countries of origin" in respect of each other for all legal and
practical purposes in relation to asylum matters.
Accordingly, applications
for refugee status from European Union nationals shall be inadmissible
for processing by another European Union member state, except in
very exceptional circumstances. Moreover, on the basis of these rules,
Roma asylum seekers from Hungary have been refused asylum in France
and Roma who had been granted refugee status in the United Kingdom
saw that status, and therefore their protection, being withdrawn once
their countries of origin became members of the European Union.
33. It follows from the sole article of the Protocol No. 29 on
asylum for nationals of member states of the European Union, applicable
since the entry into force of the Lisbon Treaty, that exception
can be made to this rule under four different circumstances:
i. “If the Member State of which the
applicant is a national invokes Article 15 of the European Convention on
Human Rights, with a view to take measures derogating from its obligations
under that Convention.” States have very rarely invoked Article
15 of the ECHR in order to derogate from the Convention, and in any
case never in a situation that would be relevant for the situation
invoked by Roma asylum seekers.
ii. (ii) “If the procedure referred to in Article 7(1) of
the Treaty on European Union has been initiated and until the Council
takes a decision in respect thereof.” The procedure referred to
in Article 7(1) of the Treaty on European Union concerns the suspension
of the rights of a member state. It is equally unlikely that this
procedure is initiated in a way that enables Roma from that country
to profit from it when lodging an asylum claim.
iii. (iii) “If the Council, acting on the basis of Article
7(1) of the Treaty on European Union, has determined, in respect
of the Member State which the applicant is a national, the existence
of a serious and persistent breach by that Member State of principles
in Article 6(1) of the Treaty”, namely of the Charter of Fundamental
Rights of the European Union.
iv. (iv) “If a Member State should so decide unilaterally
in respect of the application of a national of another Member State;
in that case the Council shall be immediately informed; the application
shall be dealt with on the basis of the presumption that it is manifestly
unfounded without affecting in any way, whatever the cases may be,
the decision-making power of the Member State”.
34. The conditions described in (iii) and (iv) have so far never
been fulfilled. In practice, it is therefore extremely unlikely
that any of these conditions would be fulfilled to the benefit of
Roma asylum seekers.
35. Subsidiary complementary protection can be granted when an
asylum seeker does not fulfil the requirements for becoming a refugee
but cannot return to his or her country of origin. According to
the European Union Directive 2004/83 "on minimum standards for the
qualification and status of third country nationals or stateless
persons as refugees or as persons who otherwise need international
protection and the content of the protection granted", only a third
country national or a stateless person is eligible for subsidiary protection
in European Union member states. Therefore Roma who are stateless
or a national of a non-European Union member state can obtain such
a status. Those who are not fall outside the scope of the directive
and are as such precluded from complementary protection.
36. As European Union nationals might not qualify for refugee
status and are not eligible for subsidiary protection, their last
resort might be the Directive 2004/38 "on the right of citizens
of the Union and their family members to move and reside freely
within the territory of the Member States".
Under
Article 6 of the directive, citizens of the European Union "shall
have the right of residence on the territory of another Member State
for a period of up to three months without any conditions or any
formalities other than the requirement to hold a valid identity
card or passport". For a period longer than three months, European
Union nationals have to fulfil the requirements set out in Article
7.1 of Directive 2004/38, that is to be workers or self-employed
persons or otherwise have sufficient resources.
37. Roma asylum seekers who leave for another European Union country
due to persecution can rarely be expected to fulfil any of these
criteria. The exclusion of Roma European Union citizens in the society
in their host states creates insurmountable obstacles to formal
employment and the ability to prove “sufficient resources”. This
affects their ability to register and consequently have access to
key civil and political, economic and social rights.
38. The options remaining are thus basically three: to seek and
be granted asylum outside the European Union, to live as irregular
migrants, or to stay in their home country and face persecution.
The first option should be considered a failure by the European
Union to provide protection. The second option brings with it exclusion and
extreme difficulty in accessing social rights and employment, health
insurance or valid identity or travel documents. The last of the
three options should never have to be an option for someone seeking
asylum.
39. The rapporteur urges the European Union to reassess its rules
on asylum seekers from within the European Union in order to avoid
persecuted Roma being obliged to choose any of these three options. Whereas
for the overwhelming majority of European Union citizens their home
country can indeed be considered safe, this is no reason to abandon
those for whom this does not hold true. It is crucial that the individual
asylum seeker has a real opportunity to rebut the presumption of
safe country of origin.
3.2. European Convention on Human Rights
40. European Union member states are also member states
of the Council of Europe and thus parties to the European Convention
on Human Rights. They are not allowed to circumvent the ECHR and
the jurisprudence of the Court by referring to European Union legislation.
In principle, if a Romani person from one European Union member
state seeks asylum in another European Union member state, he or
she should not be expelled if there is a risk that his or her rights
under Article 3 of the ECHR (the prohibition against torture and
inhuman or degrading treatment or punishment) will be breached upon
return.
41. Nonetheless, the practice of the Court has been one of subsidiarity,
meaning that it has often declared inadmissible the application
by an individual who is about to be sent back from one member state
of the Council of Europe to another, even if the applicant invokes
a threat of persecution or ill-treatment upon return. Instead, the
Court has considered that an applicant should submit an application
against the state in which that threat persists, normally his or
her country of origin, rather than against the returning state.
This practically means obeying the order to return to his or her
country of origin and wait there for the outcome of the proceedings against
that country.
42. Article 4 of Protocol No. 4 (ETS No. 46) to the Convention
prohibits collective expulsion of aliens. In the case of
Čonka v. Belgium, the Court found
that the Belgian authorities had violated this provision by collectively expelling
a number of Roma families present in Belgium, particularly taking
into account statements by Belgian officials concerning the presence
of Roma in Belgium and plans to expel them collectively. The fact
that each person concerned had been given a separate expulsion notice
did not change the affirmation of the Court, since the individual
circumstances of the persons had not been considered separately.
The
rapporteur notes with regret that not all member states of the Council
of Europe have signed and ratified Protocol No. 4 and urges those
member states that have not yet signed and ratified it to do so.
4. Roma facing return to Kosovo
4.1. Background
4.1.1. Statistics
43. There is a protracted problematic situation for Roma
refugees and asylum seekers in Europe. As a result of the conflict
in Kosovo in 1999 and erupting violence in March 2004 about 120 000
of 150 000 Roma in Kosovo were forced to leave and seek protection
in other countries. Most of them went to Serbia proper and to surrounding
countries, but a great many also left to western Europe. While Germany
and other countries in general declined to grant asylum to Roma
from Kosovo, others like France, the United Kingdom, Austria or Hungary
have recognised some of them as refugees. An estimated 100 000 Roma
from Kosovo, including their children born in exile, still live
abroad.
44. Around 45 000 to 50 000 Kosovo Roma live in Serbia of whom
around 23 000 are registered as internally displaced persons (IDPs).
Around 10 000 Roma from Kosovo live in Bosnia and Herzegovina, Montenegro
and “the former Yugoslav Republic of Macedonia”. It is estimated
that countries in western Europe currently host more than 40 000
Roma who are “tolerated”, and thus enjoy only limited residence
or social rights. Some 35 000 are registered in Germany as rejected
asylum seekers. An unknown number of Roma live as irregular migrants
all over western Europe.
45. All in all, between January 2000 and October 2007, only 6 899
Roma returned to Kosovo. Many of them had, however, left again.
Europe-wide, between 2003 and 2009, around 26 000 people of all
ethnicities were forcibly returned to Kosovo. During 2009, 2 407
such forcible returns took place of which 89 related to Roma, 168
to Ashkali and nine to Egyptians.
The
majority were returned from Germany, Sweden, Austria and Switzerland.
46. Statistics published by the German Government in August 2009
showed that 5 320 Kosovans were residing in Germany at that time.
Of these 24 367 had entered Germany before 1998 and 7 470 during
1998 and 1999. Between 1999 and 31 August 2009, there were 92 240
voluntary returns from Germany to Kosovo.
47. Of those individuals who originate from Kosovo and who were
in line to be returned from Germany as at 31 August 2009, 9 842
were Roma, 1 755 Ashkali and 173 Egyptians. Between 1999 and 31 August
2009 there were 21 852 forced returns to Kosovo. According to the
German Ministry of the Interior, 29 Roma, 148 Ashkali and 43 Egyptians
were forcibly returned from Germany to Kosovo in 2008. For 2009,
the numbers were 76, 77 and 13, and in 2010, up until 31 May, 66,
24 and 2 respectively.
48. According to the UNHCR, 2 529 Roma and 4 883 Ashkali and Egyptians
voluntarily returned to Kosovo between January 2000 and November
2007. Some 600 people belonging to Roma, Ashkali and Egyptian communities
voluntarily returned in a spontaneous manner to Kosovo between October
2007 and November 2008 and received assistance from the UNHCR, such
as shelter repair, food or other assistance. A total of 259 minority
community members returned to Kosovo voluntarily between January
and February 2010. Of these, 30 were Roma and 89 Ashkali or Egyptians.
49. As at September 2009, Kosovo still ranked in fifth place among
countries of origin of asylum seekers of all ethnicities in the
European Union (Iraq being the first). Of the asylum seekers from
Kosovo in Germany in 2008 and 2009, 30% and 41% respectively were
Roma. In the first semester of 2009, 8.2% of the asylum seekers
from Kosovo were granted some form of international protection,
but it is not clear how large a proportion of these were Roma. In
2008, only one individual was granted protection and that person
suffered from a severe illness and was afforded protection on that
ground.
4.1.2. Readmission agreements
50. During the years before Kosovo’s declaration of independence,
several countries that hosted persons from Kosovo signed readmission
agreements with the authorities of the former Yugoslavia and with
UNMIK concerning Kosovo. Subsequent to the declaration of independence,
Albania, Belgium, Germany, Switzerland and Turkey have signed readmission
agreements with Kosovo. According to the authorities in Kosovo, negotiations
are ongoing or foreseen with several further countries, including
Austria, Denmark and France.
51. A readmission agreement is a tool to organise, formalise and
facilitate the return of nationals or third country nationals between
the two countries (although, in reality, the returns take place
primarily in one direction only). Readmission agreements do not
provide who shall be returned or whether a certain individual shall
be returned or not, but set out the conditions upon which the readmitting
country shall accept to take back that person even though, for example,
he or she has no documents proving nationality.
52. Readmission agreements are often preceded by long negotiations
due to the fact that an increased number of returns can entail costs
and difficulties for a country, in particular as regards third country
nationals. Kosovo, however, has been more than willing to sign readmission
agreements and has even approached countries, Sweden for example,
to this end. The reason is that signing a readmission agreement
might be a way to visa liberalisation. Kosovo can also be expected
to be eager to enter into international agreements in order to manifest
its declared independence. Member states of the European Union normally
leave it to the Commission to negotiate their readmission agreements.
Since not all members of the European Union have recognised Kosovo,
bilaterally negotiated agreements have been used instead.
53. The decision to forcibly return a person is thus not dependent
upon the existence of readmission agreements, but if such a decision
is taken, a readmission agreement will facilitate the enforcement
of that decision.
4.2. The security situation for Roma in Kosovo
54. In 2006, the UNHCR recommended that Roma should not
be returned to Kosovo.
The main reason was that there had
been lingering adverse feelings among the majority population vis-à-vis
Roma, who normally speak Serbian and who were sometimes accused
of having collaborated with the Serbian forces during the conflict.
Ashkali and Egyptians were said to be less at risk, since they normally
do not speak Serbian, but Albanian.
55. In November 2009, the UNHCR issued a set of eligibility guidelines
for assessing the international protection needs of individuals
from Kosovo. It stated that although there had not been serious
incidents of violence against minorities comparable in scale to
those that took place in March 2004, when around 4 000 Serbs and
Roma were chased away, the overall situation of minorities, including
Roma, had not improved since the UNHCR 2006 Position was issued.
Respect for minority rights
continued to be the most significant human rights issue in Kosovo.
56. On 4 June 2010, the Council of Europe Advisory Committee on
the Framework Convention for the Protection of National Minorities
(ETS No. 157) published an opinion on Kosovo. The Advisory Committee expresses
concern about shortcomings in the implementation of legislation
and policies, education and inter-ethnic relations. The committee
states that there are serious shortcomings in access to justice
and domestic remedies available to persons belonging to minority
communities that need to be addressed as a matter of priority.
57. The Commissioner for Human Rights has stated that crime against
Roma is under-reported.
According to
unpublished sources, inter-ethnic crimes or “incidents” have not
significantly diminished since the declaration of independence by
Kosovo.
58. In particular, there have been reports of Kosovo Albanians
having attacked and injured several Kosovo Roma. According to the
NGO Chachipe and to Human Rights Watch, a flurry of attacks against
Roma by ethnic Albanians took place in Gnjilane (Gjilan) in the
last week of July 2009. At least four Roma, including a community
leader, were physically assaulted and injured in separate incidents.
The victims had reported the assaults to the police and investigations
had been opened, but it appears that they had yielded no result.
When
the rapporteur visited the Roma blocks in Gnjilane (Gjilan) during
his fact-finding mission to Kosovo, he could see that several houses
had been completely destroyed.
59. The fact that adequate protection is not offered by the authorities
and that investigations bring no results speaks in favour of considering
the security situation relevant in terms of asylum applications
and envisaged returns. Not being able to expect protection from
persecution carried out by non-state actors upon return to one’s
country is one of the elements of the refugee definition set out
in Article 1A of the 1951 Geneva Convention.
60. The UNHCR no longer advises against the enforcement of return
decisions already taken with regard to Roma from Kosovo. This applies
provided that the decisions were taken on the basis of a fair and
efficient refugee status determination procedure addressing the
situation of the individual asylum seeker. It clearly states, however,
that this group still faces a particular and significant risk of
persecution or serious harm in Kosovo, including through cumulative
discriminatory acts.
Internal
flight within Kosovo is not a relevant option for Roma, who, like
the minority Serb population, are confined to living in enclaves.
61. Moreover, persecution is not limited to acts that cause physical
harm. Discriminatory measures that are not of a serious character
by themselves may amount to persecution on a cumulative basis. This
can be the case when human rights are restricted, in particular
where the consequences are substantially prejudicial to the individual
concerned, namely serious restrictions on the right to earn one’s
livelihood or access to available education or access to justice.
Whether or not such measures of discrimination in themselves amount
to persecution must be determined in the light of all circumstances.
For
the European Union member states, Article 91 of the European Union
Qualification Directive provides that cumulative forms of discrimination
could give rise to a well-founded asylum claim.
62. It is difficult for the rapporteur to judge whether the security
situation for Roma is such that returns can be carried out. One
thing is certain, however: hasty returns of large groups of people
can create social unrest, which may translate into violence. On
6 April 2010, the United Nations Secretary-General stated before
the Security Council that continuing forced returns from host countries
may negatively impact the ability of the Kosovo authorities to support
sustainable returns and may exacerbate existing tensions.
Experience
shows that Roma will be the first victims in such cases. Such a
situation would certainly also delay or jeopardise the ongoing transition
in Kosovo. It is thus in the interest of all countries, as well
as for Kosovo itself, to show great caution in their return policies
with regard to Roma in particular.
4.3. The social situation of Roma in Kosovo upon return
63. In addition to the general discrimination which Roma
face in Kosovo, and which is said to be overwhelming, just like
everywhere else, a number of problems in all social dimensions have
to be solved in order for return of Roma to be durable.
64. Identity documents.
Amnesty International states that more than one third of Roma in
Kosovo lack identity documents. Upon return, returnees have to register
in the municipality where they decide to live in order to have access
to social services and support. Roma returnees have, however, shown
a reluctance to register. One of the reasons for this is the prohibitive
fee. This will exacerbate the problem of sustainable reintegration.
65. Property issues and housing.
Roma will have problems finding housing upon return to Kosovo. Houses have
been taken over by secondary occupants and Roma will not be in a
position to follow through lengthy restitution proceedings. In many
cases, before fleeing abroad, Roma had informal or de facto property
rights and will face great difficulty in proving these rights. Regardless
of the property issues, Roma will have difficulties finding proper
or any housing due to discrimination and the general difficulty
finding housing.
66. Unemployment. There
are different figures on the current unemployment rate in Kosovo
and how to interpret it, but indicated figures are at least 50%.
If other parts of the population have difficulties finding work, Roma
will be even harder hit due to discrimination and to lack of education.
According to Amnesty International, between 90% and 100% of Roma
in Kosovo today are unemployed. Some 37% of Roma live in extreme poverty
(on less than US$1/day). War and flight have destroyed the Roma
communities that existed before the war and it will be difficult
for returnees to rely on social networks.
67. Health care. The Kosovo
system is already limited and Serbs and Roma have to access parallel systems.
68. Education. Some 50%
of the Roma that are in line to be returned from Germany to Kosovo
are under 18 years of age. There is no official curriculum in Romanes
or Serbian and Kosovo Serbs and Roma have to access parallel schools
which entails transport to other parts of Kosovo than the ones in
which they live. Many children among the returnees are said not
to speak Serbian or Romanés, but only the language of the country from
which they are being returned. Some 16% of Roma in Kosovo are illiterate
and only 1.4% have attended high school.
69. After a visit to Kosovo in March 2009, the Council of Europe
Commissioner for Human Rights published a report which concluded
that Kosovo did not have the infrastructure that would allow a sustainable reintegration
of the returnees, in particular for the Roma.
Following a renewed visit in February
2010, the Commissioner found that there were still about 20 000
internally displaced persons in Kosovo itself who have not been
able to return to their homes since 1999. There was not yet sufficient
capacity to give a further number of returnees humane living conditions.
Of particular concern to the Commissioner was the fact that some
Roma who had been forcibly returned had ended up in the lead-contaminated
camps in northern Mitrovica, with very serious effects on their
health.
4.4. Two approaches to the return of Roma to Kosovo
70. Against this backdrop, two ways forward emerge with
regard to the Roma that are in line to be returned to Kosovo: either
(1) regularisation and integration in their host country, or (2)
repatriation to Kosovo with genuine assistance.
71. The rapporteur recommends that member states give priority
to the first of these options. If Roma are returned to Kosovo, the
rapporteur urges returning countries, Kosovo and the international
community to do their utmost to find durable solutions for the Roma
returnees.
72. Bosnia and Herzegovina, Montenegro and “the former Yugoslav
Republic of Macedonia” together shelter around 10 000 Roma from
Kosovo and Serbia around 50 000. These countries can be expected
to have greater difficulties absorbing the Roma from Kosovo into
society than countries in western Europe. Nevertheless, the rapporteur
invites governments of these four countries not to return Roma to
Kosovo until genuine durable solutions can be found for them in
Kosovo.
73. These countries should also speed up the process – with the
necessary economic responsibility being shared by the international
community – of implementation of national programmes and action
plans aimed at better integrating their Roma communities, including
the Roma from Kosovo. They should allocate budgetary resources for
the establishment of institutional frameworks and adequate mechanisms
required for tackling the problems of Roma from Kosovo, as well
as strengthening the administrative and institutional capacities
at national and local level.
It is laudable that the countries
have organised conferences with a view to finding durable solutions
for the Roma concerned (for example, in Belgrade in 2009 and in
Skopje in 2010), but the absence of the governing structures of
Kosovo from these meetings is bound to make them less useful.
4.4.1. Regularisation in the host country
74. The security situation and the social problems faced
by Roma and Kosovo society in general strongly suggest that host
countries should opt to find a way of regularising and integrating
the Roma who are now facing return. Returning countries should bear
in mind the fact that currently 75% of all returnees leave Kosovo more
or less immediately upon return.
Enforcing
returns is thus not only producing great human suffering (also taking
into account the inhumane ways in which such returns are sometimes
enforced), but is also a waste of economic resources. With regard
to Germany, the Commissioner for Human Rights has called upon the German
Government in an open letter to its chancellor, to suspend all returns
of Roma to Kosovo.
75. It is true that Germany, for example, has undertaken not to
request readmission of more than 2 500 individuals per year to Kosovo
over the coming years. However, the low return rate in recent years
(see paragraph 47) indicates that Germany and possibly also other
returning countries have difficulties following through their return
policies. This means that Roma from Kosovo who are in line to be
returned will have been staying in Germany and other countries for
ten or fifteen years, or even longer, without a regular status.
Such a scenario would be highly unsatisfactory and the rapporteur
reiterates his preference for the option of regularisation.
76. The majority of the Roma from Kosovo currently residing in
Germany have no formal protection and are therefore obliged to depart
and may be forcibly returned. However, the authorities have for
many of them temporarily suspended deportation and decided to “tolerate”
them. A toleration permit does not constitute a legal stay. Moreover,
individuals that are “tolerated” face a number of restrictions regarding
employment, family reunification, freedom of movement and they usually
receive only reduced welfare benefits.
77. If, for example, Germany, which hosts the largest contingent
of Roma from Kosovo, would opt for regularisation and integration,
there are legal means in place to do so. If the risk of persecution
is not considered to be such as to constitute a sufficient ground
for asylum, there is a possibility to base refugee status on cumulative
forms of discrimination or to grant the individuals concerned complementary
protection based on humanitarian grounds.
78. In Germany, there is also the so-called long-stayer regulation
which provides certain foreigners residing in Germany without a
regulated legal status with a possibility to legalise their stay
under certain conditions. These conditions will often be difficult
for many of the Roma from Kosovo to fulfil.
Refugee
and migration experts have welcomed the regulation but continue
to recommend a more comprehensive solution for this issue. Besides
humanitarian clauses and less restrictive exclusion criteria, the
cut-off dates for entry into Germany specified under the regulation
should be abolished.
4.4.2. Genuine assisted repatriation
79. As or when the policy on returning Roma to Kosovo
is enforced, the rapporteur urges the authorities of member states
and organisations involved to follow the opinions of the Council
of Europe Committee of Experts on Roma and Travellers
and
take all appropriate measures to ensure that returns are conducted
in an orderly, gradual and dignified manner, and in co-operation
with the relevant authorities. Returning states and Kosovo should
follow the guidelines for forced returns provided in the Council
of Europe’s 20 guidelines on forced return.
80. If the security situation permits the return of Roma to Kosovo,
returning states must ensure that such returns are genuinely assisted.
This applies whether the returns are voluntary or forced. Assistance
will be necessary in order to ensure that the human rights of individuals
are respected, that the returns are durable and that Kosovo will
be in a position to absorb all the returnees without risk for social
or ethnic tension. With the support of returning states and the
international community as a whole, Kosovo must take genuine measures
to integrate the returnees.
81. The UNHCR has indicated to the rapporteur that there are returns
which take place in a grey zone, “induced voluntary returns”, which
implies that the returnee is pushed by the authorities in the sending
countries to accept the voluntary return. The rapporteur urges member
states to ensure that voluntary returns are indeed voluntary.
82. A number of problems have to be properly dealt with before
there can be successful, that is to say durable and secure returns.
Society is still fragile and the authorities still lack sufficient
resources. Moreover, other groups, not only Roma, are facing a problematic
situation in Kosovo. The Roma themselves are not organised enough
to be able to collectively look after their common interests.
83. The Strategy for Reintegration of Repatriated Persons and
its action plan were endorsed by the government in Kosovo in October
2007 and in April 2008. According to the Commissioner for Human
Rights and the OSCE the plan is not being implemented.
The
responsible actors at the municipal level are not aware of their
responsibilities and there is not even a budget allocated for the
strategy. The impression of the rapporteur following his visit to
Kosovo unfortunately supports this conclusion. The OSCE field team
has reported to the rapporteur that only four municipalities in
Kosovo are currently in the process of developing their return strategies
for 2010 and that 19 municipalities adopted return strategies in
2009.
84. According to unofficial sources, the repatriating countries
do not provide a profile of the individuals in line to be returned.
This makes it difficult for Kosovo to plan for reintegration. Returning
countries also do not co-ordinate the returns between each other,
which puts strain on the reintegration capacities of the receiving country.
For example, no information is provided to Kosovo concerning the
social vulnerability of the person concerned, nor on possible health
problems, education needs, professional needs or ethnicity. There
are some NGOs assisting returnees upon return.
85. The OSCE has issued,
inter alia,
the following recommendations to the authorities of Kosovo, with
a view to making assisted returns possible.
The rapporteur supports and reiterates
these recommendations:
- Allocate
necessary government funding to ensure the implementation of the
strategy and the accompanying action plan.
- Co-operate closely with the host countries and international
NGOs in order to co-ordinate financial and technical assistance
and to facilitate the development of structured and funded reintegration programmes,
as well as the capacity of local authorities.
- Provide adequate financial, administrative and political
support for municipal community offices to enable them to carry
out their duties.
- Ensure that relevant ministries responsible for health,
education, employment, care and housing, as well as local authorities,
are informed about the return process.
86. Most countries have voluntary assisted return programmes for
Roma who go back to Kosovo. The German programme proposes to a Roma
family with two children to have all travel expenses paid and to receive
a grant of at least €2 850, the equivalent of an average annual
gross income in Kosovo. Moreover, the federal government and the
states of Baden-Württemberg, Lower Saxony and North Rhine-Westphalia,
where most of the Roma from Kosovo reside, have launched the return
project URA2, which runs a return centre in Pristina providing assistance
and support to voluntary returnees. The project offers counselling
for new returnees as well as a broad range of financial and practical
support, such as help finding work and housing, rent and wage subsidies,
and support for starting a new business.
87. According to the German Government, URA2 had been able to
assist every returnee who sought help to find adequate accommodation.
According to Amnesty International, however, URA2 does not cover
more than a few cases and does not provide durable solutions.
According to oral information
from the UNHCR, it follows from airport monitoring that Roma who
are being returned forcibly receive no further monitoring when arriving
at Pristina airport. Most of them leave immediately for Serbia,
Hungary or the returning country. URA2 is only dealing with returnees
from Lower Saxony, North Rhine-Westphalia, Bavaria and Baden-Württemberg.
88. The International Organization for Migration (IOM) provides
assistance to persons who are returned to Kosovo and implements
projects with a view to strengthening the independence and social
survival of Roma communities in Kosovo. This organisation has drawn
the rapporteur’s attention to a programme for voluntary returns
that has been successfully implemented and funded by Switzerland
and Liechtenstein: the EAS programme. Of the beneficiaries, 86%
were still in Kosovo and 94% of these were employed or self-employed several
years after return. The rapporteur recommends that returning states
and Kosovo assess whether the programme could be used also with
regard to the Roma from Kosovo.
5. Conclusions and proposals
89. Roma in Europe face discrimination, violence and
other human rights abuses that could, in certain cases, amount to
persecution under the 1951 Geneva Convention. It would thus be natural
to ask why Roma would choose to flee to Canada, or why they would
seek refugee status in France, instead of simply taking advantage
of their rights as European Union citizens to reside in a European
Union member state. The answer to both questions could be related
to the fact that the right to free movement within the European
Union is itself under threat, in view of the European Union rules
that require a certain professional and financial situation in order
for someone to stay in another European Union member state for longer
than three months, criteria that Roma asylum seekers and refugees
can rarely be expected to fulfil.
90. It is thus important that, in addition to the immediate urgency
of stopping the violence against Roma, the issue of Roma asylum
seekers and refugees is analysed also in light of the general right
to movement within Europe and the restrictions that are laid upon
it. The ideal of all European Union member states being “safe countries
of origin” is very attractive for member states of the European
Union. At this point, however, facts show that for some people it
remains only an ideal and unfortunately does not correspond to reality.
The rapporteur therefore recommends that the European Union look
into this matter, with a view to possibly revising its rules.
91. The tens of thousand of Roma who fled from Kosovo as a consequence
of the war and subsequently erupting violence have now lived in
western European countries for up to ten years. Their children were
born and have grown up in Germany, Switzerland, France and other
member states of the Council of Europe. These children have gone
to school there and often speak only the language of the host country.
They are now in line to be returned to Kosovo, where, according
to the UNHCR, the Council of Europe Commissioner for Human Rights
and many others, conditions are such that these returns will be
socially unsustainable. Those who will remain in Kosovo after their
return will have great difficulties reintegrating. It can be expected
that many returnees will do their utmost to immediately leave Kosovo
again. This has hitherto been the case for 75% of the returnees.
Roma returnees to Kosovo will still have to fear for their personal
security. Therefore, host countries should suspend returns and consider
how to regularise their situation or find other humane solutions for
the people concerned.
92. When returns are enforced, they should be accompanied by genuine
assistance to the persons concerned and to Kosovo. In order to achieve
sustainable returns, Roma must be granted the same opportunities
as returnees of other ethnicities that have been returning after
the war. A problem that is specific to the Roma, and where they
are at a further disadvantage compared to other returnees, is that
they have no kin-state that advocates their interests. In order
to successfully address the issue, a holistic approach will be necessary,
involving all the countries in the region. It will also be necessary
to have a common strategy at European Union and Council of Europe
levels. Civil society should be invited to play a greater role in
the reintegration process.
93. The view which has sometimes been expressed, that Roma and
related groups need to be returned to Kosovo in order to maintain
the ethnic mix is worrying. Whereas ethnic pluralism is in itself
something positive and should be promoted by giving Roma originating
from Kosovo a real and sustainable possibility to return, it must
not be achieved as a result of sacrificing the security and human
rights of the individual.
94. It is highly important that the issue of Roma asylum seekers
is addressed in a holistic way, thus including their social and
economic situation, as well as their right to inclusion. Their precarious
social situation forces many Roma to live on the margins of society,
making them easy targets for racist rhetoric. The rapporteur reiterates
that all human rights – economic, social and cultural, as well as
civil and political – are equally important and are interrelated
and interdependent. Moreover, history shows with unpleasant clarity
that a generalised situation of social distress and unemployment
is conducive to the eruption of racist violence. This also has to
be taken into account by member states when addressing the root
causes of the violence which has now hit Roma in some countries
and prompted them to flee.
95. The situation of the media in some countries has to be scrutinised
closely, since it has been known to offer an arena to extremist
right-wing spokespersons, who are guilty of hate speech. By giving
these groups and individuals the possibility to disseminate and
reinforce prejudice with regard to the Romani population, the exclusion
of the latter is consolidated and the risk of violence and new flows
of asylum seekers increased. These concerns apply to media both
in countries of origin and in host countries, which often demonise
Roma asylum seekers and migrants.
96. The rapporteur commends the European Commission against Racism
and Intolerance (ECRI), the Council of Europe’s Directorate General
on Social Cohesion, and in particular its Roma and Travellers Division, the
Advisory Committee on the Framework Convention for the Protection
of National Minorities, the Commissioner for Human Rights and other
bodies of the Council of Europe for the work carried out in order
to promote the human rights of Roma in Europe, including their situation
when being forced to flee, and without which the situation would
probably have been even worse than it currently is.
97. The time has come, however, to step up this work. For many
years, the Assembly has been drawing attention to the situation
of Roma without much progress being made. To the general and deplorable
situation of the Roma in Europe has now been added that of Roma
refugees and asylum seekers. In fact, the situation of Roma in Europe,
instead of improving, has deteriorated to the point that Roma have
again been forced to leave their countries to escape persistent
discrimination and racist violence. Instead of finding protection
they have been caught in limbo and often forced into living as irregular
migrants. The rapporteur therefore considers that the Committee
of Ministers should give further priority to this issue, including
the allocation of adequate resources, in order to allow the Council
of Europe to pursue its important work and to address the issue
of Roma refugees.