HAS UNHCR'S PRESENCE IN MOLDOVA
MADE ANY DIFFERENCE?
Chisinau 10 March, 2001
The presence of the Office of the United Nations High Commissioner for Refugees (UNHCR) in Moldova has a relatively short but dynamic history. It is interesting to note that in spite of the brutal civil conflict that displaced well over 100.000 people in 1992, the first UNHCR missions arrived only in the mid-nineties and focussed solely on the preparations for the 1996 CISCONF 1 .On the invitation of the Government a permanent presence in the form of a Liaison Office was created in 1997, a host country agreement was signed on 2 December 1998 and a year later the presence was upgraded to full Branch Office status headed by a Representative. Chisinau was thus the last post-soviet capital where UNHCR became operational 2 .
What led to this delay is today perhaps a matter for historical interest but what is more relevant is to review developments in the last three years. We shall also attempt to take stock of whether the investment and effort of the international community has actually borne any fruit. If it has, one should also reflect on the near future, what is actually realistic in the medium long term? These questions are pertinent as UNHCR is allocated only limited resources and as an organisation it has a responsibility to account for its expenditures not only to the donors, but also to its persons of concern. Setting priorities for UNHCR is always important as there are always numerous other country situations where the Office is after all confronted prima facie with more pressing, if not outright life-saving needs.
UNHCR's Main Objectives in the Republic of Moldova
As has been the case elsewhere, UNHCR was not invited to Moldova because of an influx, quite to the contrary, the numbers of asylum seekers is rather irrelevant when compared to the main problem: there is no asylum system, an anomaly for a European State. With the break-up of the former Socialist block the newly independent States were immediately confronted with a wide spectrum of difficulties, including the phenomenon of illegal migration. Moldova was no exception and its successive Governments have by now discovered how poorly equipped they are to deal with the new realities. The typical response, a repressive measure launched in isolation of a legal and administrative framework, especially when the Eastern frontier is controlled by separatist authorities, does not really work. The problems just become more entrenched and lead to the unwelcome result that Moldova today is perceived as one of the most important staging points for illegal migration 3 .
In retrospect one may argue that as the international community did not extend its helping hand earlier this unfavourable situation was perpetuated only to be exploited by those who are ready to profit from the misery of others. The situation is further complicated by a growing number of asylum-seekers who contrary to illegal migrants posses certain rights, notably the right to be protected from refoulement 4 . The situation is also compounded by the fact that in contrast to its European neighbours, including the immediate one's (e.g. Belarus, Bulgaria, Romania, Russia or Ukraine), Moldova remains the last country in Europe that has neither acceded to the 1951 Convention Related to the Status of Refugees, nor adopted national legislation 5 . In other words Moldova, a State with no mechanisms to effectively meet its international obligations in the field of asylum, simply exports this problem by ignoring it. With no discernible national policy and no central authority, Moldova is in no position to act in accordance with applicable standards and exposes itself to engaging responsibility for human rights violations. From another perspective Moldova also excludes itself from existing international co-ordination mechanisms and the various forms of assistance it could get in this regard. This is an uncomfortable position to be in especially when Moldova's own Constitution provides for the right to asylum and when as a signatory to the European Convention on Human Rights and the United Nations Convention Against Torture it is obliged to respect to the principle of non-refoulement 6 .
UNHCR, the organisation mandated by the international community to protect and to assist refugees, has for three years endeavoured, in close co-ordination with the State authorities, to close this crucial gap 7 . This has proven to be a time consuming process as too many individuals in some sort of position maintained, and argued, that Moldova, given its specific situation and economic difficulties, cannot afford to assist refugees.
This is an interesting but fallacious argument. It is also not new, the same approach was met by UNHCR only a few years ago in other capitals, be they Bucharest, Sofia, Tirana or Warsaw. First of all, by denying a problem one does not make it go away. Secondly, by examining the practice of other countries, many of which may rightfully claim to be even poorer than Moldova, this is simply not true. What is true however, as long as Moldova remains reluctant to even establish a proper central authority authorised to develop a policy and adopt measures to tackle refugee affairs, UNHCR will remain saddled with the task of extending international protection. The question is whether UNHCR will be willing and capable to fulfil this surrogate role indefinitely. This is a paradox as some Ministers and even the President have wondered why do asylum seekers approach only UNHCR, preferring to remain "hidden" from the State. The answer is simple, what else can they do?
UNHCR's objective has therefore remained unchanged: to assist the State to address asylum related issues so that refugees and asylum seekers address their claims to the Government. Simply speaking this would pre-suppose three relatively simple developments:
1) to adopt a national refugee law and to eliminate the existing deficiencies of the legislative framework which are either contradictory or in violation of international standards;
2) to establish a central authority that would eventually assume all related, functions hitherto exercised by UNHCR, and last but not least,
3) accession to international refugee (and stateless) instruments.
It is certainly fair to take into consideration that the tragic experience of Transdnistria (TD), and the residual problems of internally displaced people, pose a complicating factor. UNHCR therefore also strives to provide indirect assistance to persons of concern with a view of assisting the Government to stabilise the situation pertaining to irregular movements. UNHCR also continues to monitor the protection needs of individuals who claim persecution by the de facto authorities in TD not only in the hope of preventing renewed outflows, but also to actively promote reconciliation of the separated communities.
To achieve the above outlined goals it has been important to devote resources to transfer know-how and provide support to the executive, the Parliament and the judiciary. All need to learn how to deal with asylum seekers already in the interim, especially as developments in the sub-region have quite logically led to arrivals of asylum-seekers not only from Afghanistan or Africa, but also from Russia (Chechnya). In the absence of appropriate legislative acts, asylum seekers, however, continue to face numerous security and existential problems. Exclusion from legal and social support structures not only perpetuates irregular movements, but also imposes an added dimension of misery to people who have already lost most everything.
UNHCR's Activities and Assistance
Looking back and considering the realities of successive economic and political convulsions it must be underlined that the Moldovan society is genuinely tolerant and sensitive to the needs of the least fortunate. This fact is confirmed by the level of political support and understanding shown by the authorities and by the media that also regularly reflects the generosity of a host community that in material terms has precious little to share. Last year, when UNHCR commemorated its 50th Anniversary of existence, progress achieved to assist refugees in Moldova gave considerable reason for optimism. The symbolism of the issuance of a commemorative postage stamp demonstrated the Government's sensitivity to the problem. Similarly the co-operation with the Mayor of Chisinau to stage an open-air concert "Rock for Refugees II" allowed to bring a positive message to and from the youth.
I am often asked how many refugees are there in Moldova? The second question usually reflects astonishment … but why do they come … there is nothing for them here?!? There is actually nothing so amazing about asylum seekers coming to Moldova. A genuine refugee, the one fleeing for his/her life does not fore-mostly seek economic prosperity. One primarily seeks freedom from persecution. As to the numbers, well, there are not too many by any account. From the regional perspective, let alone by global standards (there were some 23 million refugees), the numbers of individuals seeking refuge in Moldova is negligible. Moreover, not all need financial assistance. Most are content with the legal protection they obtain and do their best to take care of themselves. Others would take care of themselves if this were possible (e.g. if they had access to the labour market, however tight it is). Like in every human community there are, of course, always those who need supplementary assistance to meet their basic human needs like food, shelter and access to medical care.
Our end of year 2000 statistics showed that the 198 active files represented 336 individuals of whom 71 were women, 100 children. About two thirds received monthly subsistence allowances (39 complete families, 12 one parent families of which 89 were children, 60 men and 51 women, 7 single women and 9 ill). 8 most vulnerable families (nursing and single mothers with children and pregnant women) were provided with emergency shelter, 33 children were assisted to attend pre-school, 39 primary school, two individuals were helped to continue in their university studies and 193 individuals benefited from social counselling. 59 single men received subsidies to share apartments and 30 individuals not eligible for financial support benefited from access to a soup kitchen operated by the Municipality of Chisinau. I would like to stress that many of the beneficiaries could have actually fended for themselves if the authorities allowed them to do so.
UNHCR believes in promoting greater self-sufficiency as experience shows that hand-outs often only serve to create a dependency syndrome. Moreover, human beings that lose hope may become dangerous not only to themselves, but also to their environment. We therefore provided incentives to attend Romanian language classes for adults as well as children and helped with registrations with the aliens authorities. Applicants underwent interviews not only with UNHCR but were also counselled to lodge an asylum request with the Presidential Commission. Asylum requests invoking the Constitution unfortunately failed and the Constitutional right to asylum remained a dead letter. Not a single application for asylum was positively processed.
In the first quarter of the year, motivated by security concerns, the arrival of Chechens gave rise to a debate on UNHCR's mandate. This obstacle was rapidly overcome and the Ministry of Interior remained prepared to register, at least in principle, individuals bearing UNHCR protection letters. At the same time UNHCR is concerned that some asylum seekers are submitted to finger printing solely on grounds of their nationality. While the imposition of administrative fines for illegal stay became rare due to an emerging jurisprudence (the courts proceeded to systematically quash administrative sanctions applied by the Prosecutor's Office), refugees and asylum seekers continue to exist in legal uncertainty. Problems also remained with the registrations with the aliens police and agreements reached with the Ministry of Interior remained dis-functional. Throughout UNHCR continued in its practice to conduct mandate status determination to ascertain who indeed has a valid claim to international protection. UNHCR screened out the simpler cases and at year's end 121 cases representing 198 individuals remained pending. Sporadic protection interventions were nevertheless required in cases of abusive detention and a mechanism to verify the authenticity of UNHCR protection letters had to be maintained. On balance, however, much to the credit of the authorities, instances of detention and the imposition of administrative fines on persons of concern were minimised. A truly impressive jurisprudence emerged as the courts refused to bow to efforts to criminalise asylum seekers as long as they could not properly register. Although working with the judiciary and the prosecutors demanded considerable attention and resources, the results are worthwhile. Judges were among the first to appreciate the complexity of the situation and given their independence, exercised their prerogatives to adjudicate in the spirit of the law by correctly applying international standards. This was decisive in a situation where the legal framework is contradictory: the courts confirmed that international human rights treaties take precedence over domestic legislation. To facilitate this process UNHCR commissioned translations of key jurisprudence of the Strasbourg and Geneva based human rights complaint procedures and funded their publication.
Thanks to the co-operation of a number of medical institutions access was also ensured to basic health care and UNHCR and its partners organised distributions of supplementary food and hygienic items. Under two year-olds received milk and 150 refugee, asylum seeker, IDP children and orphans attended a summer camp. Ground was also laid to address the problems of income generation and to solve the problem of access to the labour market. Specialists provided psychosocial counselling and tended to the specific needs of women and children. The bilingual (English/Romania) monthly publication "Refugium" reached a wide audience, informing on current problems and achievements.
At the international level Moldovan Government delegations actively participated in the CISCONF follow-up process and sought assurances that Moldova could continue to count on UNHCR support to introduce a functional refugee determination system. Direct programme expenditures from UNHCR alone in the year 2000 amounted to 565.000 USD and targeted everything from institution and capacity building for the Government and NGOs to expenditures on individual basic needs of needy asylum seekers (food, shelter, clothing, primary health care, schooling etc.). Of this sum expenditures in TD amounting to 148.000 USD allowed to refurbish of 7 educational and 4 medical institutions and to promote tolerance education. 6 schools in former conflict zones were assisted in the form of classroom supplies, furniture etc.
Is this progress?
This is all fine some would say, but what was really done? Well, if we leave the realm of numbers and individual benefits, there are a number of substantial achievements that do not lend themselves to simple quantification in terms of dollars and cents. For one, key Government officials and MPs have not only understood the futility of avoiding the issues, but have actively started to explore initiatives to introduce relevant interim administrative procedures and measures required to accede to the UN refugee and stateless conventions. Co-operation with the Ministry of Interior led to what can be viewed today as a relationship of trust that benefits many individuals who regularised their abode, at least temporarily. Importantly the Ministry of Education continued in its policy to allow children of parents holding protection letters, irrespectively of their status under Moldovan law, to access primary education. After two years of painstaking efforts a draft refugee law won the approval of all relevant Parliamentary Committees and the prerequisite support of the relevant Ministries. It was indeed rather unfortunate that the Bill never reached its first reading due to the dissolution of Parliament. Moldova also managed to amend its citizenship law and brought it into compliance with international refugee standards 8 . Accession to the 1951 Convention is of course a complex matter, however, the Ministry of Justice was at the end of last year requested by the Deputy Prime Minister to explore related questions. This process is supposed to commence as soon as the new Parliament reconvenes. Last but certainly not least, an interim refugee authority was created by Government decree within the Ministry of Labour 9 . These are very significant developments welcomed by UNHCR.
At the same time one cannot but observe that the State, confronted by competing priorities, lacked not only the resources, but quite often also the focus and resolve to start to assume its obligations for asylum. UNHCR therefore forged closer co-operation with other actors and potential donors, including UNICEF, IOM, the OSCE (notably the High Commissioner on National Minorities), the World Bank and UNDP. Valuable co-operation was also pursued with the Council of Europe on citizenship issues and in promoting the application of the European Convention on Human Rights. The Council of Europe comments on the draft law served to underline the commitment of international organisations to help.
Another positive development is the relationship with NGOs and the creation of a whole new scope of previously non-existent activities. In addition to the 9 co-operative agreements (entered upon with Save the Children, Society for Refugees, Law Centre of University Advocates, Youth Helsinki Citizens' Assembly, Judicial Training Centre, Legal Clinics, the Italian Consortium for Solidarity, Moldovan Red Cross Society and the Charity Centre for Refugees), UNHCR also worked with ADRA and the International Federation and Committee of the Red Cross. Thanks to the foresight of the Dean of the State University, Moldova became one of the first countries in Eastern Europe to introduce a refugee law course into the curriculum.
A number of Government and NGO staff were supported to attend specialised sub-regional events in order to learn from others. NGOs assisting refugees were strengthened to help destitute individuals and the increased attention allowed many to better take care of themselves rather than to depend solely on charity and hand-outs. Numerous experiences in other countries have confirmed that refugees have a contribution to make to their host societies not only by enriching our common environment with new skills or culture, but also by becoming tax-payers who contribute to their community. Over 30 training activities served to promote an awareness of refugee law concepts among judges, prosecutors and administrators. UNHCR also supported the publication of four books, a specialised legal monthly and specialised studies.
As is dictated by its mandate, pending the creation of Government structures, UNHCR ensures basic protection and assistance to bona-fide asylum-seekers. As of 27 February 2001 UNHCR maintains files of 500 asylum seekers (including 696 persons). 74 prime applicants have been granted refugee status under the mandate (representing 157 individuals) and some 58 applications were rejected. 281 files were administratively closed as the individuals concerned departed spontaneously 10 .
On balance, however, the Government is yet to take full advantage of the assistance offered to devise a sustainable system through institution/capacity building. As has been observed above, respect for refugee standards and the rule of law can not be negated solely by economic considerations. Indeed, although the continuing legal void is unhelpful, as is the absence of structures and "perpetual" political instability, the real problem is a limited attention span to problems of illegal migration and disrespect for international standards. From this perspective it will be interesting to observe how the Ministry of Labour will exercise its new authority and effectively utilise the 7 persons designated to work in the soon to be established refugee section.
Although most Government sectors moved towards recognising the reality of "a refugee problem" in a constructive manner, protection concerns for bona-fide asylum-seekers (and refugees) continue. Asylum seekers at borders are according to reliable reports summarily held incommunicado only to be denied access to UNHCR and deported at the earliest opportunity. It is unfortunate that when holders of UNHCR protection letters in-country are generally treated with respect, cases of refoulement at the borders continue unabated. Contacts with the "border guards" remained limited and indicated a reluctance to even discuss the relevance of international human rights standards. In this area there is still little understanding of the concept of asylum and reliance on "traditional" approaches does little more than to weaken efforts to rejoin the community of democratic States ruled by law.
In spite of a substantive co-operation agreement signed with the Minister of Interior, which led to some flexibility on interpreting the aliens law, a central authority is yet to be created. The draft refugee law will have to be revived and UNHCR can only hope that it will once again clear respective Parliamentary hurdles and obtain the consent of relevant Government instances, building on the cross-party support refugee issues now enjoy. For the foreseeable future UNHCR will with the consent of the Government continue to be a key, albeit no longer the sole entity that responds to the needs of asylum-seekers. The Office remains committed to support the Government to gradually assume its responsibilities in the asylum field. As long as the Government will continue to make progress, UNHCR will help to promote solutions leading to self-sufficiency. One of the first steps will be to create a functional national authority and to grant persons of concern at least temporary access to the labour market. In the interim period UNHCR will be open to conduct refugee status determination procedures hand in hand with the authorities. As a corollary, UNHCR will also do its utmost to respond to the Government's request to tend to the needs of IDPs. The excellent level of co-ordination established with the Ministries of Interior, Labour, Finances, Education, Justice, Foreign Affairs and the President's Office (notably the Commission on citizenship and asylum) will in our view produce mutually advantageous and tangible results. Assistance will also continue to be extended to the Courts which in the present situation are uniquely placed to ensure that the rule of law prevails by providing judicial remedies within the existing legal framework.
Indeed, there has been considerable progress in all areas. UNHCR's presence and close co-operation with NGO's, not obstructed by the Government, has definitely improved the precarious situation of asylum seekers. Deserving individuals are issued UNHCR protection letters that are generally respected by the authorities. The frequency of detention and abuse has subsided allowing persons of concern to subsist with a degree of dignity and hope. Still, the situation is not satisfactory. Confronted by the uncertainty of whether an individual will actually be more than just tolerated it should not be surprising that many individuals opt to leave spontaneously, often with the assistance of unscrupulous smugglers. Resettlement, even in the absence of local solutions,
became a durable solution only for a fraction of the population of concern 11 .
The only solution for Moldova is to urgently approximate its legal system and conduct to international standards. The problems are delicate and in some respects costly, but building a democratic and tolerant society, based on the respect for human dignity and fundamental rights, brings dividends that in the end benefit the population at large. UNHCR will therefore also continue to address the public, sensitise officials to best practices and offer solutions. The fact that the number of persons of concern remains relatively small is a distinct advantage as it allows to introduce systems at a time when problems have manageable proportions.
By Oldrich Andrysek Representative,
UNHCR Branch Office Moldova
1 Regional Conference to address the problems of refugees, displaced persons, other forms of involuntary displacement and returnees in the countries of the Commonwealth
of Independent States and relevant neighbouring states, Geneva 30-31 May 1996.
2 UNHCR has also established a presence in all other former "satellite" Socialist countries since the early nineties (except for the Baltic States where the Office in Riga covers also for the neighbours).
3 The Budapest Group that is following up to the Conference of Ministers on the Prevention of Illegal Migration has recently focussed on Moldova.
4 There is a growing body of opinion that this rule has entered customary international law. See Article 33(1) of the 1951 Convention relating to the Status of Refugees and the 1967 Protocol thereto (1951 Convention). In force 22 April 1954: 189 UNTS No. 2545; for the 1967 Protocol see 606 UNTS No. 8791. At 22 November 2000, 140 States were party to the 1951 Convention and/or the 1967 Protocol.
5 Global Appeal 2001, UNHCR publication, p. 212-213, Geneva 2001.
6 For more see O. Andrysek, "The International System Protecting Refugees and Persons in Refugee Like Situations and the Role of UNHCR", Human Rights in the republic of Moldova, ff. 31, Garuda Art 1999 Chisinau.
7 Resolution 428 (V) of the General Assembly, 14 December 1950, on the UNHCR statute.
8 For example upon ratifying the European Convention on Nationality (1997) Moldova entered a declaration stating that refugee related provisions are to be applied no later than on 1 March 2001, even in the absence of a specific law.
9 See Governmental decision No 185 dated 3 March 2001 on the Co-ordination and Monitoring of the Asylum Seekers and Refugees Issues. Pursuant to para. 7 the Ministry of Interior should elaborate the Rules regarding the Registration of asylum seekers and Refugees and should present it for approval.
10 Of the 34 countries of origin most applicants came from Russian Federation (Chechnya) (184), Iraq (47) and Sudan (29).
11 Only 8 extremely vulnerable cases are in the process of being resettled to the USA and several individuals have managed to be reunified with their families elsewhere