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LEGAL STATUS OF REFUGEES AND ASYLUM SEEKERS AND THE EUROPEAN
CONVENTION ON HUMAN RIGHTS

Seminar held in Chisinau Moldova, 29 -30 September 2000

Published Chisinau, 2001

 

Foreword

Oldrich Andrysek
UNHCR Representative

Refugee issues continue to preoccupy many Governments around the world and the Republic of Moldova is no exception in this regard. As the Representative of the United Nations High Commissioner for Refugees (UNHCR) in Chisinau I am one of the first to realise the extent of the challenge posed by this complex phenomenon for such a young State, especially when it is still to consolidate not only its socio-economic structures, but also to ensure its territorial integrity and political stability.

This was the second seminar of its kind co-organised with the Council of Europe and as its title "Legal status of refugees and asylum seekers and the European Convention on Human Rights " suggests, it focused on the draft of the Moldovan law on Refugees. As a result of two years of intensive consultations, a Parliamentary Working Group agreed on a text that was nearly ready for its first Parliamentary reading. In addition, and in the spirit of transparency, it was also shared for comments with UNHCR and the Council of Europe. From this perspective we were fortunate to have among us not only such an eminent personality as is Mr. Nicholas Blake Q.C., but also one of the two Council of Europe experts, Prof. Boldizsar Nagy.

Providing asylum to those who flee persecution is problematic not only for inherent economic or security implications, but chiefly because this cannot be achieved in the absence of appropriate legislative and administrative structures. UNHCR, the organisation endowed with a specific mandate to assist and to protect refugees, mandated by the organisation's Statute and guided by the 1951 United Nations Convention Relating to the Status of Refugees and the 1967 Protocol thereto (1951 Convention), quite naturally considers filling this void as its highest priority. In this sense any future domestic legislation and procedures will need to comply with international human rights and refugee law standards, including the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter ECHR). In dealing with this truly international problem States depend and rely on a framework of accepted principles for humanitarian activities.

Leaving the theory aside, Europe unfortunately once again not only hosts refugees, but also produces them in their millions. Conflicts, intolerance and persecution drive people from their homes on our "own" continent, confirming the sad truth that no country is immune to the consequences of forced flight. Trying to deal with the equation holistically one must consider a complex web of political, economic, social and human rights issues and as I observed a year ago, Governments are often tempted by short-term fixes rather than measures leading to lasting solutions. The fragmentation of States, expressions of rabid nationalism and continued internal strife, often designed to displace, continues to challenge the readiness of Governments to live up to their commitments, especially when they struggle with disintegrating support systems.

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. The landmark wording of the European Court's Judgement in the Soering v. the UK Judgement encapsulates the philosophy that underpins 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".

Subsequent jurisprudence of the Court confirmed how international law impacts on the jealously guarded concept of sovereignty if individuals are to be protected from degrading and inhumane treatment. Given that the ECHR applies to all in a State's jurisdiction, including those arriving at borders, it constitutes an important set of guarantees in instances of lapses in legal or administrative procedures. As long as Moldova only remains "committed" to accession to the 1951 Convention and until domestic asylum legislation is in force, provisions like Article 3 of the ECHR will be the cornerstone of protection from non-refoulement. In this regard UNHCR noted the importance the Council of Europe attaches to respect for international refugee standards when Georgia's membership was conditioned on accession to the 1951 Convention. Indeed, human rights issues, including those of refugees, are no longer considered a purely internal affair.

The seminar, organised under the auspices of the Speaker of the Moldovan Parliament, demonstrated Moldova's resolve to address this unregulated problem. The fact that it was co-sponsored by the Council of Europe under the Activity for Development and Consolidation Programme (ADACS) only underlined its international character. As confirmed by the agenda and the list of participants (which included experts and officials from Romania, Ukraine and the OSCE mission to Moldova), the formal and informal sessions allowed to shed light on applicable standards established not only under the ECHR, but also under other instruments, notably the Conventions on the Prevention of Torture, in a sub-regional context.

UNHCR was particularly pleased that not only theory, but also practical implications of introducing refugee structures were debated. The exchanges between Government officials, judges and members of the academia, but also representatives of NGOs and students of law helped to scrutinise the pros and cons, to examine the implications and ramifications of the continuing domestic legal and structural void. As UNHCR's Representative I was heartened to observe the intellectual exchange on the fundamental legal issues at stake in the context of the Moldovan situation. I therefore trust that this volume will not only remind the participants of the rich dialogue that developed, but will also serve as a reference for later times, encouraging the Moldovan legislators and Government officials to accomplish the task still ahead.

My special thanks go to my Council of Europe colleagues, notably Mr. Geza Tessenyi, who not only helped to steer the meeting, but also contributed with candid and realistic comments based on his vast experience. I also wish to thank all the contributors, especially those who lived up to their promise and delivered the texts of their presentations! Indeed, while UNHCR's appreciation is equally due to all the participants who made the seminar worthwhile, I would like to underline the gratitude to our host, H.E. Dumitru Diakov, who in his opening remarks set the tone for the debates and sent the signal that the asylum issue cannot be ignored indefinitely. His words were later echoed in a number of presentations and confirmed the resolve of the Government to tackle the problem in earnest.

Moldova, September 2000


TABLE OF CONTENTS

Letter of invitalion ................. 149

Agenda................. 151

Oldrich Andrysek Foreword ................. 153

Dumitru Diacov Opening statement ................. 156

Valeria Sterbet Opcning statement ................. 158

BoldizsarNagy Comments on thc Draft Law on Rcfugee Status ................. 160

Nicholas Blakc Asylum, refugees and the European Convention on
Human Rights ................. 198

Geza Tessenyi Recommendations of the Committee of Ministers of thc Council of Europe Concer- ning Asylum, Refugees and Other Persons in Need of International Protection ................. 210

Ala Mīndīcanu Law on the status of refugees - a pending necessity ....... 220

Ion Creanga Regulation of the status of refugees in the view of the draft law of May 25, 2000 ........ 224

Leontie Suholitco Actual mechanisms of registering and protecting the asylum seekers in the Republic of Moldova................. 230

Alexandru Ohotnicov Adjustment of the national system for the protection of refugees in thc Republic of Moldova .................234

Tudor Varatic Referencc points of thc speech on actions undertaken by the Government in the field of refugees ................. 237

Sergiu Furdui Solutions from the Jurisprudencc of the Republic of Moldova in cases concerning refugees and asylum seekers ................. 239

List of Participants ................. 251

Project of thc Law on Rcfugee Status ................. 257

Annexes ................. 277

 

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