Reply to Recommendation 1236 (1994) on the right of asylum and to Recommendation 1237 (1994) on the situation of asylum-seekers whose asylum applications have been rejected

18 May 1995

Doc. 7312

COMMUNICATION FROM THE COMMITTEE OF MINISTERS

Reply to Recommendation 1236 (1994)

on the right of asylum

and to

Recommendation 1237 (1994)

on the situation of asylum-seekers whose asylum

applications have been rejected

(adopted by the Committee of Ministers on 4 May 1995

at the 537th meeting of the Ministers' Deputies)

1. With reference to Recommendation 1236 (1994), the Committee of Ministers wishes to inform the Parliamentary Assembly that it has decided to bring the text to the attention of the governments of member States, the European Commission against Racism and Intolerance and the United Nations High Commissioner for Refugees. Furthermore, the Recommendation was forwarded to the Group of Senior Officials entrusted with the follow-up to the Conference of Ministers on the movement of persons from Central and Eastern European Countries (Vienna Group) (see paragraph 9 below).

2. The Committee of Ministers had also referred the Recommendation to the following bodies, for an opinion: the Steering Committee for Human Rights (CDDH), the Ad Hoc Committee of Experts on Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR) and the European Committee on Migration (CDMG). In the light of the information provided by these committees, it wishes to inform the Assembly of the following considerations, which also constitute an additional reply to Recommendation 1237 (1994) on the situation of asylum-seekers whose asylum applications have been rejected, to which an interim reply was already made.

3. With regard to the general concerns expressed in paragraph 8 (i) of the Recommendation, the Committee draws attention to the opening for signature, on 1 February 1995, of the Framework Convention for the Protection of National Minorities, which has been signed up to now by twenty-three member States. This legal instrument represents an important contribution by the Council of Europe to the prevention of conflicts likely to arise with respect to the treatment meted out to national minorities within States and in the context of their mutual relations. As examples of practical action already taken, mention may be made of "confidence-building measures in civil society", assistance to member States and non-member States alike with which co-operation has been organised under Vote IX of the Budget on assistance for developing and consolidating democratic security, together with the work of the European Commission against Racism and Intolerance. Some of these activities are indeed carried out in liaison with other organisations such as the OSCE and the European Union.

4. In the same connection, the Committee of Ministers wishes to make special mention of the Week of action (21-26 March 1995) against racism organised as part of the European Youth campaign against Racism, Xenophobia, Anti-semitism and Intolerance, the hearing on "Local democracy, citizenship and tolerance" by the Congress of Local and Regional Authorities of Europe (Strasbourg, 20 February 1995) and the information and co-ordination meeting (Strasbourg, 10 February 1995) with other international organisations active in this field, namely: UNESCO, the Office of the United Nations High Commissioner for Refugees, the European Parliament, the OSCE Office for Democratic Institutions and Human Rights (ODIHR), the Nordic Council, the European Broadcasting Union and the International Union of Railways.

5. Regarding the concern expressed in sub-paragraph 8 (i)(d) of the Recommendation, the Committee points out that efforts to disband human smugglers' rings are one of the areas falling within the competence of the Budapest Group which has been attending meetings of the CDMG since November 1994 with observer status. This Group will therefore be able to keep the Steering Committee - and, hence, the Committee of Ministers itself - informed of developments in its work.

6. With respect to procedures for granting asylum, mentioned in paragraph 8 (ii) of the Recommendation, the Committee of Ministers observes that the Council of Europe States which belong to the European Union resolved to provide guarantees that all applications for asylum would be examined on an individual basis while drawing up rules aimed at avoiding the "refugees-in-orbit" phenomenon and the practice of multiple applications for asylum.

7. The Committee of Ministers has already adopted in the past various texts to meet the concerns of the Parliamentary Assembly in this area, namely Recommendation No. R (81) 16 on the harmonisation of national procedures relating to asylum, Recommendation No. R (84) 1 on the protection of persons satisfying the criteria in the Geneva Convention who are not formally recognised as refugees and Recommendation No. R (94) 5 on guidelines to inspire practices of the member States concerning the arrival of asylum-seekers at European airports.

8. Although the following questions may not lead to new rules being adopted, they are currently on the agenda of the Ad Hoc Committee of Experts on Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR) whose in-depth studies enable member States to compare their national policies, harmonise them as far as necessary and work out joint responses to the problems concerning them. These questions include the following: the safe third country concept and compulsory removals; promoting voluntary return; family reunification for refugees and displaced persons; unaccompanied minors and other vulnerable groups of asylum-seekers; the right to appeal in the asylum procedure; the prevention of the "refugees-in-orbit" phenomenon; and the promotion of intergovernmental co-operation.

9. Since the Vienna Group has ceased to exist as an independent forum, the Council of Europe committees more directly concerned - CAHAR and CDMG -will continue studying the questions which were on the agenda of the Group, within the limits of their respective terms of reference. The CDMG and the CAHAR have also proposed that an enlarged meeting should be held once a year. This meeting would be devoted to an exchange of information and experience on migratory flows and policies on migrations between or via European countries. The discussion could take place against the backdrop of the general concerns voiced by the Parliamentary Assembly and the protection of the Council of Europe's principles on asylum.

10. Lastly, with regard to the proposals concerning the European Convention on Human Rights to be found in paragraph 8 (iii) of the Recommendation, the Committee of Ministers observes that Articles 3, 8 and 13 of the Convention, together with Protocols 4 and 7, provide a certain degree of protection for asylum-seekers without, however, providing a substantive right to asylum. Every State has the sovereign right to grant or refuse asylum, as stated in Article 1 of the United Nations Declaration on Territorial Asylum of 1967 or the Declaration on Territorial Asylum adopted by the Committee of Ministers of the Council of Europe on 18 November 1977.

11. Current deliberations within the Council of Europe and in other international fora, particularly since 1988, following Parliamentary Assembly Recommendation 1088 on the right to territorial asylum, do not seem to hold out the prospect in the near future of resulting in a proposal designed to institute a right of territorial asylum for the benefit of political refugees within the framework of the European Convention on Human Rights. However, the Committee recalls that this Convention is increasingly relied upon by asylum-seekers whose asylum applications have been rejected with a view to making use of its mechanisms for the purpose of defending their interests.

12. These developments, and the work of more informal bodies such as the Budapest Group and that of the United Nations High Commissioner for Refugees, deserve to be closely monitored in order to evaluate their consequences before contemplating the creation of an additional organ such as the "European Refugee Commission" mooted by the Assembly. The discussions conducted in meetings such as those organised by the Vienna Group and by the Conference of European Ministers responsible for Migration Affairs have indeed demonstrated that effective co-operation, in the form of interstate consultations, could exist without additional structures within the Council of Europe framework.

13. In conclusion, the Committee of Ministers confirms that all these problems are one of the priorities of the intergovernmental co-operation within the Council of Europe and that it will not fail to keep the Parliamentary Assembly informed of any future developments in this highly sensitive field.