Protection and reinforcement of the human rights of refugees and asylum-seekers in Europe

Doc. 8444

18 June 1999

Protection and reinforcement of the human rights of refugees and asylum-seekers in Europe

Recommendation 1327 (1997)

Reply from the Committee of Ministers

adopted at the 675^th meeting of the Ministers’ Deputies (15 June 1999)

The Committee of Ministers has closely considered Parliamentary Assembly Recommendation 1327 (1997), which deals with important matters of refugee protection. It agrees with the Assembly that there need to be clear rules governing detention and deportation of asylum-seekers so as to prevent infringement of their human rights, as pointed out by paragraph 7 of Recommendation 1327.

The Committee of Ministers has paid particular attention to paragraph 8, subsections (i) – (vii) of Recommendation 1327. It has facilitated, and continues to facilitate, the intensification, advocated in paragraph 8 (i), of Europe-wide co-operation in the field of asylum policies, in particular through its ad hoc Committee of Experts on Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR).

The Committee of Ministers points out that, since the Parliamentary Assembly's adoption of Recommendation 1327, it adopted Recommendation No. R (97) 22 containing guidelines on the application of the safe third country concept by Council of Europe member States; Recommendation No. R (98) 13 on the right to an effective remedy by rejected asylum seekers against decisions on expulsion in the context of Article 3 of the European Convention on Human Rights; Recommendation No. R (98) 15 on the training of officials who first come into contact with asylum seekers in particular at border points and Recommendation No. R (99) 12 on the return of rejected asylum seekers. The Committee of Ministers also endorsed during its 104th session (Budapest, 7 May 1999) the Conclusions of the extraordinary meeting of the CAHAR on Kosovo.

The Committee of Ministers encourages ratification of the 1951 Convention on the Status of Refugees (the Geneva Convention) and its 1967 protocol by all Council of Europe member States and welcomes the fact that, since the Parliamentary Assembly's adoption of Recommendation 1327, one of the member States has introduced new legislation lifting geographical limitation on the application of the Geneva Convention. The Committee of Ministers invites other similarly placed member States to do likewise.

The Assembly's proposal to amend the Dublin Convention determining the State responsible for examining asylum applications lodged in a member State of the European Communities is for European Union member States to look into if they so desire.

In paragraph 8 (v) the Assembly recommends that the Committee of Ministers “initiate a reform of the European Convention on Human Rights to make the provisions of Rule 36 of the Rules of Procedure of the European Commission of Human Rights concerning interim measures (such as the suspension of deportation orders) into a mandatory obligation of all signatory States under the Convention”.

The Committee of Ministers observes that, in its judgment in the case of Cruz Varas against Sweden (20 March 1991), the European Court of Human Rights held that parties to the Convention were not under any legal obligation to apply interim measures under Rule 36 of the Rules of Procedure. It pointed out, however, that in practice there had been almost total compliance with Rule 36 indications (paragraph 100 of the judgment).

Today, as in 1991, this practice has guaranteed and should continue to guarantee de facto observance of applicants’ rights under the Convention. In this connection, the Committee of Ministers does not think there is any urgent need for the recommended reform, which would not result in any actual improvement in Convention human-rights protection and which in addition would take a considerable time. It also observes that the case for such a reform was rejected when Protocol No. 11 was being drawn up. In addition, domestic law and practice in most countries prohibit execution of deportation orders where there is a risk of treatment contrary to Article 3 of the Convention. In this context, the provisions of the above-mentioned Recommendation R (98) 13 on rejected asylum-seekers’ right to an effective remedy against expulsion decisions under Article 3 of the European Convention on Human Rights should be recalled. This recommendation, among others, deals with the question of suspension of expulsion decisions where asylum-seekers would risk torture or inhuman or degrading treatment or punishment if the order were carried out.

With regard to paragraph 8 (vii)(a) of the Recommendation, the Committee of Ministers shares the Assembly's concern that victims of torture or other serious human rights violations committed in a country not a member of the Council of Europe may have no means of legal redress either through the courts of that country or through the courts of the Council of Europe member country in which they have taken refuge.

At the same time the Committee of Ministers is aware of the difficulties which national courts may have in assessing the validity of claims in the probable absence of reliable first-hand evidence of acts allegedly committed in a foreign country whose authorities are unco-operative. At the same time it may be difficult to enforce any court decision in a claimant’s favour. Obviously, too, there may well be an issue of State immunity where the defendant is a foreign State, a head of State or a national official.

In the circumstances, the Committee of Ministers considers it premature to contemplate a European convention in the matter. It does believe however that member States can be encouraged to consider individually how they could amend their law to make it easier for victims of torture or other serious human rights infringements committed abroad to obtain redress by means of a civil action in their courts.

In view of the various implications the Committee of Ministers considers that, while member States will probably be impelled to give the matter more careful thought, they are unlikely, at least for the time being, to go the length of adopting domestic legislation on the lines of that in force in the United States.

In paragraph 8 (vii)(e) and (h) of its Recommendation the Assembly refers to two conclusions of the Executive Committee (EXCOM) of the Office of the United Nations High Commissioner for Refugees (UNHCR) concerning the determination of refugee status and detention of refugees and asylum-seekers. Although these and other conclusions of the EXCOM, which many governments have adopted, are not compulsory instruments, they provide important guidelines for law and policy on refugees in Council of Europe member States.

The Committee of Ministers has noted the Assembly's proposal for a binding agreement between the member States setting minimum harmonised standards for asylum procedures, the Assembly's appeal for minimum standards to be set for using accelerated asylum-determination procedures, and various other proposals which appear in paragraph 8 (vii) of the recommendation. The Committee of Ministers points out that the CAHAR has considered, or is considering, many of these matters so that a position common to the member States can be agreed.

The Committee of Ministers endorses the Assembly's suggestion in paragraph 8 (vii)(g) of the recommendation that priority be given to non-custodial measures such as the supervision system, the requirement to report regularly to the authorities, bail or other guarantee systems. In the past the Committee of Ministers has appealed to member States to make more use of such measures so as to avert the desocialisation which detention frequently causes. The appeal was reiterated in Recommendation R (92) 16 on the European Rules on Community Sanctions and Measures. The Committee of Ministers none the less stresses that here the non-custodial measures need to be combined with effective guarantees that asylum-seekers will not abscond.

As regards paragraph 8 (vii)(j) the Committee of Ministers agrees with the Assembly that asylum-seekers' detention conditions need reviewing and improving in line with the relevant international standards and the case law of the supervisory bodies of the European Convention on Human Rights. In this connection, reference should be made in particular to Recommendation R (87) 3 on the European Prison Rules, Recommendation R (84) 12 concerning foreign prisoners and Recommendation R (94) 5 on guidelines to inspire practices of the member States of the Council of Europe concerning the arrival of asylum-seekers at European airports.