The Amsterdam Treaty which is expected to enter into force this year, is a blueprint for transforming the European Union into an area of freedom, security and justice (objective set out in Article 2 of the Treaty). If this objective is to be fulfilled, there will have to be above all accompanying measures where border checks and the fight against illegal immigration are concerned. The Amsterdam Treaty has, in any event, transferred visa, asylum, immigration issues and other policies related to the free movement of people (as well as cooperation in civil matters) from the thirdto the first pillar. This means that these issues will be within the responsibility of the European Union and no longer subject to inter-governmental cooperation.

Thus, the Treaty puts the Council under an obligation to define measures on ‘minimum standards’within five years from the Treaty coming into force. These should be measures related to the procedure for granting or withdrawing refugee status in the member states. In this context, the Commission adopted a working paper on 3rd March this year entitled ‘Towards common standards of asylum procedures’, a paper which constitutes a preparatory stage of this process.

To translate into reality this project of creating such an area of freedom, security and justice as set out in the Treaty , the Council and Commission have developed a ‘Plan of Action to gradually implement this area of freedom, security and justice’, submitted to the European Parliament for their opinion in December 1998.

In this context, an inter-parliamentary conference was held in Brussels under the aegis of the European Parliament on 24th/25th March 1999. The aim of this Conference was also to prepare the Extraordinary Council Meeting on ‘Justice and Home Affairs’ in Tampere, Finland, on 15th and 16th October 1999. The Conference on 24th and 25th March brought together members of the European Parliament, representatives of Commission and Council as well as national parliaments. Organisations representing the civil society, including the FIDH, had been invited to take part in the conference to make their opinions heard.

The Letter presents today an extract of the joint statement of the FIDH and Amnesty International at that Conference.
‘We would like to thank the organisers for inviting us to this inter-parliamentary conference. The European Union member states have been seeking to bring their asylum policies closer together for years, but organisations such as ours seldom have the chance to raise their voices in this way. Even so, these organisations are making an effort to closely follow the process and have often voiced their opinions or recommendations without being asked to do so by the governments. 1999 will see the Amsterdam Treaty coming into force ; there will also be elections for the European Parliament and the appointment of a new Commission. In a not too distant future, the European Union may well accept a dozen new countries from Central and Eastern Europe and the Mediterranean. Today, the Plan of Action of the Council and Commission which sets out the ideal conditions for implementing the provisions of the Amsterdam Treaty on the creation of an area of freedom, security and justice («Plan of Action»), as well as various initiatives of the European Commission such as projects for temporary protection and asylum procedures are so important that they should be a subject of debate between Heads of State, parliamentarians and organisations and associations for whom asylum law is an issue.

No other part of the world is so well covered by international human rights conventions as the European Union : the Convention for the Protection of Human Rights and Fundamental Freedoms (1950), the European Convention for the Prevention of Torture and Punishments or Inhumane or Degrading Treatments (1987), the United Nations Covenants on Human Rights. The Amsterdam Treaty of 1997 has once again been a confirmation that the European Union is grounded on the principles of freedom, democracy and respect for human rights.

The declaration of such high principles also involves responsibilities. The EU member states are highly developed countries and some of them are the oldest democratic systems in the world. This prominent position enables and compels them to comply with human rights standards. Moreover, the European Union has become one of the world’s centres of economic and political gravity. Its acts and omissions thus have a considerable impact on the attitude of the other countries in the world. Not least, its member states must also make human rights policies the cornerstone of their domestic and foreign policies in order to ensure that enlargement of the European Union will be accompanied by these rights in Europe.

Asylum law and protection of refugees
Where asylum is concerned, the texts adopted by the representatives of the European Union member states according to the inter-governmental procedure in the 1990s generally -speaking constituted an agreement on the ‘lowest common denominator’. These political decisions have led to increasingly restrictive practices and, in spite of that, some states are worried about the increase in the number of asylum-seekers’ applications on their territories in 1998.

The Amsterdam Treaty involves a vast blueprint for action set out in the Plan of Action. The European Commission has just communicated a paper entitled ‘Towards Common Asylum Procedures’ to the European Council and Parliament. We are pleased to see that the Amsterdam Treaty specifies that asylum measures must be in compliance with the 1951 Geneva Convention and the other treaties applicable. In addition, they fully agree with the statement of the Plan according to which ‘these measures must duly take into account the fact that the areas of asylum and immigration are separate and call for separate solutions’.

Our organisations request that several gaps be filled in applying the Amsterdam Treaty :

- The Amsterdam Treaty does not make any reference to the respect of the instruments resulting from the 1951 Geneva Convention .

We call on Heads of State and governments to solemnly declare at the Tampere Summit that any measure adopted which may have consequences for asylum-seekers and refugees will respect, in addition to the 1951 Geneva Convention, all the instruments resulting from this, particularly the conclusions of the Executive Committee of the HCR and the ‘HCR’s Guide to procedures and criteria to be applied to determine the refugee status’. In this context, Heads of State and governments must also make reference to the respect for the European Convention on Human Rights and, above all, Article 3, according to which ‘no one shall be subjected to torture, or to inhumane or degrading treatment or punishment’’.

- The Schengen Convention puts all contracting parties under an obligation to impose sanctions on companies carrying passengers who are not in possession of the necessary documents for travelling. This provision can easily prevent victims of human rights violations, often forced to leave their countries without their personal documents, from reaching a place of refuge. The Plan of Action makes provision for continuing to harmonise legislation on the responsibility of carriers. (36.d.iv.).

Measures related to visa and immigration, as well as sanctions imposed on carriers, must take into account the specific needs of asylum-seekers as far as their protection is concerned. The measures adopted against ‘illegal immigration’ must not prevent asylum-seekers from reaching a place where they would be safe.

- The 1992 resolutions on ‘safe’ third countries ‘safe countries of origin’ and the EU resolution of 1995 on minimum guarantees in asylum procedures are not in compliance with certain basic principles of refugee law.

We are worried about the conditions under which asylum-seekers are sent to ‘safe third countries’ if the countries sending them have not obtained, in each individual case, a guarantee from these third countries that the application will be examined according to a fair procedure. In addition, the Dublin Convention (...) does not guarantee that asylum-seekers will have access to that procedure which decides on whether they should have refugee status in any one country.

We are pleased to see that the European Commission proposed in its recent working paper entitled ‘Towards Common Standards on Asylum Procedures’ to re-examine the conditions under which asylum-seekers can be sent to ‘safe’ countries, particularly with respect to the need to obtain firm guarantees in terms of admission and access to real protection (para. 14, 21, 22) and even envisages abandoning the concept of ‘safe third countries’ (para. 22).

We urge that no asylum-seeker be sent to a ‘safe third country’ unless the country sending the person to that third country has obtained guarantees according to which that third country will allow the asylum-seeker to benefit from a fair asylum procedure. We urge that the measure on minimum standards for the protection of asylum-seekers makes up for the shortcomings of the EU resolution adopted in 1995, particularly where ‘manifestly unfounded claims’ and the concept of ‘safe third countries’ are concerned. In addition, border police should transfer any claim by an asylum-seeker to an independent competent authority.

- According to the Treaty and the Plan of Action, minimum standards governing the acceptance of asylum-seekers must be adopted within the next two years.

We urge that any measure related to the conditions of acceptance should guarantee an appropriate minimum standard of living to allow asylum-seekers to live in dignity until a decision is taken on their claim, even during the time while the person is waiting for the outcome of the result of the appeal.

- The joint position of the European Union on ‘the harmonised implementation of the definition of the term refugee’ (1995) enables member states to fail to recognise as refugees people persecuted by non-governmental entities. This interpretation is not in compliance with the recommendations of the HCR and the ‘HCR Guide on procedures and criteria to be applied to determine the refugee status’ in particular. We are pleased to see that the European Commission proposes to review this point of the text of the joint position (para 5.4).

We request that the joint position of the European Union on the interpretation of the definition of the term ‘refugee’ be revised and that the measures for implementation of the Amsterdam Treaty should guarantee that people threatened by non-governmental entities fall under the definition of refugee of the 1951 Geneva Convention if their country of origin cannot protect thtem or is not willing to grant them protection.

- According to the Amsterdam Treaty and the Plan of Action, minimal standards on the temporary protection and balance between the efforts of member states must be adopted ‘as soon as possible’.

Any ‘temporary protection’ measure must be exclusively reserved for exceptional circumstances of massive arrival and must not be translated to a levelling down of protection standards. The right to an individual procedure must always be guaranteed. Repatriation must not be imposed until there has been a fundamental and lasting change in the human rights situation in the country of repatriation. Member states must demonstrate their solidarity with other countries in the world which accept refugees in large numbers and must take measures to take the burden of carrying an unproportional burden or refugees off these countries.

- Within the measures to be adopted within two years from the Treaty’s entering into force, the Plan of Action stipulates ‘the evaluation of countries of origin with the aim of formulating an integrated approach specifically adapted to each country’ ...
(...).
One of the objectives of the European Union is to contribute to the development of democracy and strengthening of the Rule of Law in partner countries. In May 1995, the decision was taken by the Council to include a clause called ‘crucial elements’ in each of the agreements with third countries. This clause is above all, related to human rights and includes references to universal and/or regional instruments, as well as an article on the implementation of a suspension mechanism in the case of non-respect of these crucial elements. The agreements made since May 1995 all contain this human rights clause. Nonetheless, there are differences, as this suspension mechanism , for instance, is not mentioned in all the texts. EU development aid and cooperation programmes also contain human rights clauses : aid can be frozen if the beneficiary country becomes responsible for grave violations of fundamental rights or fails to respect the principles of democracy.

We demand that a plan on certain countries of origin or transit of asylum-seekers be developed by the member states to promote the respect for human rights in all these countries and protect the rights of refugees in the places where they live, instead of preventing them from gaining access to European Union territory.

- The Amsterdam Treaty has in its appendix a protocol abandoning the right of European Union citizens to claim asylum in other member states, except in exceptional circumstances. This decision means that the international system of protection for refugees and asylum-seekers loses part of its effectiveness and might constitute a dangerous precedent for other parts of the world.

We call once again on the Heads of State and government meeting in Tampere to abandon the protocol on asylum for European Union citizens and that each member state should unilaterally and openly declare that it will not apply this protocol while its abolition is still pending.

- With the enlargement of the European Union, we call on applicants for membership to respect the ‘acquis communautaire’ (agreed Community law), particularly where asylum and immigration are concerned. The European Union should help these countries to develop asylum structures which guarantee effective protection of asylum-seekers and refugees. With the adoption of measures for the implementation of the Amsterdam Treaty, member states should try to balance out the shortcomings of current European Union asylum policy. This will have consequences in the countries of Central and Eastern Europe as well as other countries applying for membership.
Lastly, the scope of the work initiated under the Plan of Action deserves regular and thorough exchanges between Heads of state, parliamentarians and organisations for whom asylum law is a concern.

We call once again on Heads of State and government to put in place a system which enables associations or individuals concerned to carefully observe the process of the work as it progresses and influence it in such a way as to make an impact in good time, both before and after the Tampere Summit.

 

France before the European Court of Human Rights for acts of torture On 18th March, the French government was accused before the European Court of Human Rights for acts of torture and violation of the right to have a trial within a reasonable period of time (articles 3 and 6.1 of the European Convention on Human Rights). The Court looked into the appeal lodged by Mr. Ahmed Selmouni who was subject to cruelty and ill-treatment by the French police during his custody in 1991.. And, as is only very rarely the case, the Netherlands acted as a civil party against France. Mr. Selmouni, who is of dual (Dutch and Moroccan) nationality, was arrested in Paris in November 1991. He was suspected of being the instigator of an international drug trafficking gang. His four days in custody resembled the worst nightmare. He was subjected to beating by hand and with base ball bats and truncheons as well as kicking, sexual humiliation and threats with a syringe and two blow-torches.

The five policemen accused of inflicting such treatment on him were not suspended, with no disciplinary procedure, until the European Court of Human Rights declared the Mr. Selmouni’s appeal as admissible in November 1996. This resulted in the five police officers subsequently being interrogated while they still remained on duty. On 25th March 1999, the magistrate’s court in Versailles sentenced them to two to four years immediate imprisonment for ‘acts of violence’ and ‘sexual aggression’, stating that the acts committed by police officers ‘contravened the principles of the Rule of Law’. The five policemen all lodged an appeal. The European Court is expected to render its verdict in one or two months’ time. A case to be watched.

 

(From La Lettre n° 14 of April 15)