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European Convention on Human Rights and Protection of Persons in need
of International Protection


Seminar co-organised with Council of Europe, Chisinau Moldova, 8 -9 July 1999

Published Chisinau, July 2000

 

Foreword

Europe's massive refugee problem after World War II was considered as a temporary phenomenon to which solutions had to be and could be found. To this end the United Nations, entrusted with the maintenance of peace and stability and guided by a desire to promote the respect for human rights, created an organisation with a specific mandate to assist and to protect refugees the Office of the United Nations High Commissioner for Refugees. A half a century later the reasons for its existence remain and fulfilling it's mandate has become more complex than ever. Europe is once again a continent that not only hosts refugees, but produces them by the millions, demonstrating all too realistically that the international community has not managed to learn to from past mistakes and that no country is immune to the consequences of forced flight.

Trying to understand the equation holistically one must consider a complex web of political, economic, social and human rights issues that are generated by the post cold war period. Governments also tend to be motivated by short-term self-interest rather than by humanitarian considerations, on occasion evading even legal responsibilities. In Europe, the dissolution of Soviet Union, the rise of nationalism and the proliferation of internal strife designed to displace, added to the flows of refugees arriving from different parts of the world, straining support systems as well as preparedness of Governments to live-up to their commitments.

The Council of Europe as a standard setter and guarantor of the concept of the rule of law has played a key role in the development of human rights concepts and attendant enforcement mechanisms. Although member States continue to jealously guard their sovereignty, they have conceded, collectively and independently, that protection from degrading and inhumane treatment is a fundamental tenant on which peaceful co-existence rests. The wording of the European Court's Judgement in the landmark Soering v the UK case encapsulates the underlying philosophy of the protection mechanism intended for refugees:

"It would hardly be compatible with the underlying values of the Convention, that common heritage of political traditions, ideals, freedom and the rule of law, were a Contracting State knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, however heinous the crime allegedly committed".

The European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter ECHR), which is applicable not only to citizens, but to all in a State's jurisdiction, has emerged as a powerful protection tool for many who are caught-up in gaps of existing legal systems and procedures. In Moldova, a non-signatory to the 1951 Geneva Convention Relating to Status of Refugees (1951 Convention), the prevention of non-refoulement essentially rests on ECHR Art. 3 which has been interpreted to provide even wider protection than provided by Art. 33 of the 1951 Convention. Few would dispute the premise that the European human rights system is crucial to developments in Eastern Europe where the independence of the judiciary and respect for individual rights was systematically negated for decades. All the more significant it is for Moldova that has neither acceded the 1951 Convention, nor introduced domestic asylum legislation. Only recently the Council of Europe underscored the importance it attaches to a member State respecting international refugee standards when Georgia's membership in the Council was conditioned on accession to the 1951 Convention. European structures and the human rights mechanisms they spawned prove once again that human rights issues, including those of refugees and their protection, can no longer be considered a purely internal affair.

One can therefore safely venture to state that the ECHR has evolved into a cornerstone of international refugee protection. Faced by growing challenges in its own backyard, the Council of Europe has become a key player in influencing the development of common policies designed to enhance refugee protection. UNHCR closely co-operates with the Council of Europe in many regards and its Branch Office in Moldova was only too pleased to co-organise a seminar within the ADACS (Activity for Development and Consolidation Programme).

The somewhat awkward title "The international protection of persons in need of international protection" that so much emphasises the word "protection" overarched the Seminar made possible to a joint effort of two International organisations. The two days of 8 and 9 July 1999 demonstrated the importance of the ECHR as a tool of refugee protection to Government officials, judges, members of the academia, students and to representatives of NGOs whose task it is to ensure respect for refugee rights, irrespectively of the domestic legal and structural void. The Seminar served to foster an intellectual exchange on the fundamental legal issues at stake in the context of the Moldovan situation and served to clarify many issues. It is hoped that this volume will not only remind the participants of the rich dialogue that occurred and enlighten the reader who was not present, but encourage the Moldovan legislators and Government officials to fill the human rights and refugee protection gap that continues to exist.

Finally, while thanking all the contributors, I would like to take the opportunity to re-iterate UNHCR's gratitude to two persons in particular: the Speaker of the Moldovan Parliament, H.E. Dumitru Diakov, who hosted the Seminar and found the time to address the participants in spite of a heated and crucial debate in the Chamber taking place on the same floor, and the Minister of Justice, Mr. Ion Paduraru, whose personal commitment combined with the efforts of his staff contributed to the success of the event. It also confirmed the resolve of the Government to tackle the problem in earnest. UNHCR and the Council of Europe share the view that in developing refugee legislation, Moldova takes yet another important step on the road of re-joining the democratic fold.

Oldrich Andrysek UNHCR
Representative Moldova,
December 1999


Table of contents:

Letter of invitation

Forewords by UNHCR and CoE

Oldrich Andrysek
The link between the 1951 convention relating to the status of refugees and the European Convention for human rights and fundamental
freedoms - a complimen-tary instrument for the protection of
refugees and asylum seekers ......... 15

Stephen Livingstone
Talk on the Fair Trial Guarantees Contained in Article 6 of the European Convention on Human Rights ......... 27

Alexei Barbaneagra
The wrong determination of foreign citizens' ,,E" and ,,N" legal status of being in the Republic of Moldova brought to the violation of their rights and freedoms .........
33

Stephen Livingstone
Talk of article 5 of the European Convention on human rights with particular reference to the circumstances of refugees
......... 37

Xenofont Ulianovschi
Arrest and detention of aliens, illegal migrants and refugees. The way of their expulsion out of the country
......... 45

Olivier De Schutter
Droit au respect de la vie privee et familiale et immigration dans la convention europeenne des droits de l'homme ......... 53

Helene Lambert
Article 3 of the European Conventation on human rights and the
protection of refugees and rejected asylum-seekers against refoulemen
from Europe
......... 77

Helene Lambert
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
......... 87

Eugenia Fistican
Right to an effective remedy in the Republic of Moldova
......... 101

Igor T. Ciobanu
General principles regarding adoption of national legislation on
asylum
......... 107

Alexandra Ohotnicov
Some-problems regarding granting of the political
asylum
......... 121

Ion Creanga
Legislation - one of the state guarantees for implementing
the fundamental rights and Freedoms
......... 125

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