EIRP Proceedings, Vol 11 (2016)

Principles and Guarantees in the Protection of Refugees

Victoria Scripnic ¹

Abstract: This paper analyzes the key elements of asylum and protection of refugees, the pillars that should support firstly the one in need and, secondly, the states which carry out their activity in this field, through their authorities. We will thoroughly present the fundamental principles, applicable to the claimants of a form of international protection that governs the entire asylum procedure.

Keywords: refugee; principles; asylum; rights

1. Introduction

There is a tight link between a state and its citizen, the citizen fulfilling his obligation towards the state that, in return, guarantees the protection of his rights and of his physical and psychological integrity. Everything coexists in harmony, each party receiving what is due to them, including the reciprocity in respecting the rights and obligations. This peaceful coexistence creates favorable conditions for the development of each individual and accomplishes a balance in the national and international society.

But what happens when the element holding the power in this equation cannot or will not respect the obligation to protect? What can an individual, a loyal and idealistic citizen, when the future, or worse, the right to live, is uncertain? Can that individual seek protection from other states? What are the guarantees when seeking refuge?

The approach to this subject is not random, the interest for the regulation of the protection of a refugee – natural person – being generated by some international political events in which our country was also involved, as member of the European Union. The armed conflicts in Asian countries which forced the civil population to seek protection, giving rise to a big wave of refugees on the territory of member countries, produced discord within the European Union in the context of the necessity of establishing an equilibrium between the state members’ efforts for the reception of these people.

There is a tight link between a state and its citizen, the citizen fulfilling his obligation towards the state that, in return, guarantees the protection of his rights and of his physical and psychological integrity. Everything coexists in harmony, each party receiving what is due to them, including the reciprocity in respecting the rights and obligations. This peaceful coexistence creates favorable conditions for the development of each individual and accomplishes a balance in the national and international society.

But what happens when the element holding the power in this equation cannot or will not respect the obligation to protect? What can an individual, a loyal and idealistic citizen, when the future, or worse, the right to live, is uncertain? Can that individual seek protection from other states? What are the guarantees when seeking refuge?

The approach to this subject is not random, the interest for the regulation of the protection of a refugee – natural person – being generated by some international political events in which our country was also involved, as member of the European Union. The armed conflicts in Asian countries which forced the civil population to seek protection, giving rise to a big wave of refugees on the territory of member countries, produced discord within the European Union in the context of the necessity of establishing an equilibrium between the state members’ efforts for the reception of these people.

2. The Established Principles in International Legal Acts

1. Access to the asylum procedure – As is provided in the Universal Declaration of Human

Rights, all human being are born free and equal in dignity and rights, being gifted with conscience. This primordial element, the conscience, makes us think that people must act towards one another in a spirit of brotherhood.² Sadly, there are multiple cases of inhumane behavior inflicted by “rational” individuals on their fellows; in this cases, the contemporary society intervenes, through its legal representatives which, in order to prevent this cruel treatments inflicted by an individual upon other individual and to establish multiple protection methods, have elaborated a national and international legislative frame, favorable to the accomplishment of the goal.

2. The Principle of non-discrimination – principle that has its origin in the Universal

Declaration of Human Rights, is set out in multiple articles of this act. The Declaration gives the possibility to all human being, without any type of distinction, to rely on all proclaimed rights ³ and to benefit from equal protection of the law.⁴ Later on, this principle was taken up by other conventions in the field of human right and its protection.

3. The Principle of non-refoulement – represents the key element in the protection of refugees. Non-refoulement implies that a refugee must not be re-fouled in a country in which that individual has grounds to fear persecution. This rule is also applied in the cases in which the refugees have legally entered the territory of a host country.

The fundamental document in the international legislation which establishes the principle of non-refoulement is the 1951 Convention relating to the Status of the Refugees⁵, however, this is also established in the legislation of the European Union which fully respects the provisions of the 1951 Convention relating to this principle and rigorously transposes in its legal acts both the principle of non-refoulement and its exceptions.

4. The Principle of confidentiality – the international law relating to human rights guarantees each person the right to confidentiality. This is a principle that governs the entire asylum procedure, having an express provision in the asylum legislation. The general principles that regulate confidentiality require that disclosing information by a third party does not compromise the security of the given person or should not lead to the infringement of his human rights. This principle that governs the right to personal data protection is equally applied to both citizen and to refugees, asylum claimants, and foreigners.

5. Non-application of criminal sanctions – a principle relating to the clauses of non-punishment of the people who were given protection but who illegally entered the territory of the host state. Naturally, this principle is a guarantee against sanctions, as is established in the 1951 Convention relating to the Status of Refugees, only to those refugees that, even if they illegally entered or established themselves on the territory of a country, quickly presented themselves to the authorities in order to expose the reasons of their illegally entering the country. Moreover, these reasons should reflect a life-threatening or right-threatening situation, as is provided in article 1⁶ of the same Convention.

6. The principle of the right to information – is not thoroughly provided in the matter of the asylum principles, not having been declared a principle. It is, however, located in the field of the asylum claimant rights, the member states being constrained to respect it. We can conclude that it is, in fact, a rule that is understood from the necessity and the importance of this right, without which the asylum claimant would not be knowledgeable of information and of his rights, partially being denied the necessary protection.

7. The principle of family unity – established in the international and national law, it provides the possibility, or better still, the right of any person, outside national territory, to re-unite his family. In the present paper, given that we analyze the status of refugees, we bring to the table the established provisions in legal acts relating to this field.

3. Applying the Guarantees Relating to the Protection of Refugees in International Law and in Romanian Legislation

The Universal Declaration of Human Rights, through Art. 5, establishes that “no one will be submitted to torture, punishment or cruel, inhumane or degrading treatments”⁷. However, if this provision is broken, any person that is in a situation to be persecuted has the right to seek asylum and to benefit from asylum in other countries. The 1951 Convention relating to the Status of Refugees, in addition to the right to the asylum points stipulated in the mentioned legal acts, provides this principle, not in a clearly expressed statement, but deduces itself from the definition of the term “refugee”, which indirectly indicates that a person, that is in a persecutory situation, can claim protection.

In Romanian legislation, this principle is established in Law no. 122 of 2006 concerning asylum in Romania, in chapter II regarding principles and guarantees, Article 4⁸, as well as in the Constitution.⁹

Regarding the principle of non-discrimination, we will turn our attention on the regulations regarding the status of refugees. Internationally, the 1951 Convention relating to the Status of Refugees established, in Art. 3, that its dispositions will be applied on refugees by contracted states without any distinction regarding race, religion or country of origin. In this respect, the legislation of our country adds some amendments, listing a number of circumstances in which discrimination can intervene. Thus, Law no. 122 of 2006 relating to asylum in Romania, ensures access to the asylum procedure to any person, without any distinction, regardless of “race, nationality, ethnicity, language, religion, social category, beliefs, sex, sexual orientation, age, handicap, non-contagious chronic illness, HIV infestation or membership to a disadvantaged category, material situation, birth or acquired status or any other distinction.”¹⁰ Even though The 1951 Convention relating to the Status of Refugees, in the article dedicated to non-discrimination, briefly specifies the categories to which its prevision unconditionally apply to, the definition of the refugee from the same Convention, eliminates any misunderstanding in this regard, and the term “any person” encompasses a myriad of possibilities, even if unmentioned in the Convention, in which one person can find himself.

Returning to the legislation of our country regarding asylum, we will see that a new term intervenes in this field, namely “vulnerable people”, in which minors, unaccompanied minors, people with physical disorders, elderly people, pregnant women, single parents accompanied by their minor children, victims of human trafficking, people with mental disorders, people that were subjected to torture, rape or other severe forms of physical, physiological or sexual violence, or people that find themselves in similar special situations. The law will be applied by taking into account the situation of these persons, after their membership to this category was established by specialists within the General Inspectorate for Immigrations.

As is provided in Art. 78 from The Treaty on the Functioning of the E.U., the Union, regarding the process of developing policies in the field of asylum law and protection in general, be it subsidiary or temporary, must assure the respecting of the non-refoulement principle, in accordance with The Geneva Convention of 28^th of July, 1951 and with the Protocol of 31^th of January, 1967, concerning the status of refugees as well as with other treaties in the field. In this regard, amendments also were drawn by European Union’s Directives in this field, which establish: the conditions that should be fulfilled by the nationals of third party countries or stateless persons in order to acquire international protection; granting and withdrawing international protection, as well as standards for receiving claimants of international protection. In what the non-refoulement principle is concerned, only the 2011/95/EC Directive especially provides it in article 21 which, at the same time, allows state members to refoule a refugee, regardless of whether he is officially recognized as such or not, in the cases in which there are reasonable motives to think of him as being a danger for the security of the state member in which he is established or if he was convicted by a final judgment of a particularly serious crime¹¹ and constitutes “a danger for the community of that member state.

We find the exception of the principle of non-refoulement both in the 1951 Convention relating to the Status of Refugees, as well as in our own national legislation. These provide similar condition to those of the European Union’s¹² 211/95/EC¹³.

The prohibition of refoulement is widely accepted as part of international customary law. This means that even the states that are not parties of the Convention relating to refugees, must respect the principle of non-refoulement. When this principle is broken or risks of being broken, UNHCR reacts through an intervention alongside the competent authorities and, if necessary, inform the public opinion.¹⁴

The principle of non-refoulement of a refugee is a solid guarantee which any person who is persecuted or seeks international protection, can have, regardless if he is a third party national or a stateless person, regardless of race, religion, sex or origin, without suffering any discrimination in any respect. This principle offers the security that that person will not be deported, without a well determined reason, in his country of origin or in other places, where his life can be in danger or where there is the risk that he be submitted to inhumane treatments or torture.

The right to personal protection and the confidentiality request are extremely important for asylum claimants, their request being motivated by the fear of being followed by their country of origin’s institutions and whose situation can worsen on the basis of a lack of information protection.

Disclosing personal data or other information regarding to asylum claimants from their country of origin is contrary to the spirit of the 1951 Convention relating to the Status of Refugees.

Taking into account all of the above, the state that receives and evaluates an asylum request must obtain from disclosing any information to the claimant’s country of origin or to even notify them that an asylum application was submitted by a citizen of that country. This principle is applicable regardless of the fact if the asylum claimant’s country of origin is seen as safe or if the asylum application was submitted for economic reasons.

Article 25 of The Convention relating to the Status of Refugees, article which is referring to administrative assistance, also mirrors that an asylum claimant cannot rely on his country of origin’s protection, thus being protected from the risk of being followed, in case of being contacted by the country of origin’s bodies. The Establishment of this principle is found not only in the international legislation, but also in Romanian internal legislation. Law no.122 of 2006 concerning asylum in Romania methodically provides the obligation of all authorities concerning confidentiality, in the sense that all the data and information relating to the asylum application are confidential. The Romanian state’s authorities, especially those who activate in problems regarding asylum, having direct access to information about asylum claimants, are not allowed to disclose these personal data, not even to the state whose citizen is the claimant of a form of international protection. Leaking these kind of information to third parties conflicts the right to life, the physical and psychological integrity of the given persons being placed in danger. Of course, the obligation to respect the principle of confidentiality is not imposed only on the Romanian state’s authorities, but also on organizations that carry out activities in the field of asylum or of third parties involved in the asylum procedure that, accidentally, enter in the possession of these acts.¹⁵

However, in the national norm relating to the status of refugees, other categories of persons which have to respect the principle of confidentiality are established, the criminal law sanctioning only the person that, through the virtue of their profession or their function, are obliged to keep confidentiality¹⁶ and not disclose secret professional or non-public information.¹⁷

The underlying condition for invoking the principle of non-enforcement of criminal sanctions is established on granting a form of protection. The person that broke the legislation of the state in which he illegally entered in order to avoid being sanctioned, must be granted one of the protection forms which can be granted by the given state.

The Romanian legislator established in the Criminal Code that illegally entering or exiting the country is a crime, punishable with imprisonment for 6 month to 3 years, or with a fine. The situation is more serious in case of solicitation, guiding or instructing one or more persons, having the goal of illegal entering a state’s frontier, is, likewise, a crime and organizing such activities is punishable with imprisonment from 2 to 7 years. The person that illegally enters the territory of our country and subsequently does not declare their intention of obtaining international protection by illegally remaining on Romanian territory, suffer the same criminal sanctions mentioned above, but also other contraventions provided in Romanian legal acts¹⁸. Indeed, there are cases in which immigrants are caught in the process of committing the crime of clandestinely passing the frontier, wanting to enter Romania in order to reach the countries in the Schengen area in order to find a job. In this case, the law does not distinguish between illegally transiting the territory of a country or illegal residence, in both situations, the persons caught committing this crime are punished according to effective norms, the main cause of applying a punishment being the illegal crossing of a state’s frontier, committed regardless of the goals of the criminal.

Thus, in the situation in which one illegally enters Romanian territory, the given people, caught in due time, are turned to the authorities of state from which they entered and, moreover, a criminal file is drawn for committing the crime of illegally crossing a state’s frontier. Romanian authorities face such crimes often in the context of migrations that have begun in the last year. We can exemplify some cases which happened at the beginning of this year: on the 15^th of January, the police found two Syrian citizen that were trying to illegally enter Romania at the border crossing point Calafat-Vidin Feroviar. The police immediately launched the procedures for interrupting their journey and, according to the Romanian-Bulgarian protocol, the two immigrants were taken by the Bulgarian Border Police in order to continue the investigation and the enforcement of the necessary legal measures.¹⁹. A similar faith was met by other 60 immigrants of different nationalities, who were subsequently caught, in the same day, when wanting to enter from Serbia into Romania through the Comlosu Mic locality, Timis county, these being from Pakistani, Afghanistan, Iraq, Somalia and Morocco. Following their statements, in which they claimed to be headed for the Schengen area in order to find a job, readmission documents were drafted in order to surrender them to Serbian authorities and to draw up criminal files for committing the crime of illegally crossing the border of a state²⁰.

In the majority of cases that the police force have confronted, the immigrants were surrendered to the state from whose territory they directly entered Romania and criminal files were drawn against these person for the crime of illegally crossing a state’s frontier. In consequence, as long as international protection has not been requested by these people, the principle of non-application of criminal sanctions could not be enforced, as both the 1951 Convention relating to the Status of Refugees, and that of Romania, provides.

Even though the 1951 Convention relating to the Status of Refugees does no refer to the principle of the right to information, The European Union provides in the 2011/95/UE Directive²¹, the right to information by providing by all state members the information concerning the rights and obligations of the persons that fall in this category, in a language that they are supposed to reasonably understand. The difference between the instruction of this Directive and those transposed in our national legislation concerning the status of the refugee is that the right to information, in Romania, is awarded to the foreigner that requests the granting of this form of protection, but also subsequently, during the asylum procedure²² and not after the status of the refugee is granted, as the Directive provides, through article 22.

Thus, taking into consideration the importance of the right to information, that any person that fulfills the conditions provided in the 1951 Convention relating to the status of refugees, the party states who were asked for international protection much supply the asylum claimant information that encompass the wording of the asylum application as well as the whole procedure, the rights and also the obligations that they must respect during the process of the asylum procedure. Moreover, they can be given contact information of organizations and institutions that can offer assistance to the people in need of protection.

Having its foundation on The Universal Declaration of Human Rights, which stipulates that “family is the natural and fundamental group of a society and that has the right to be protected by the state society”, the majority of international organizations in the field of human rights contain similar provisions for the protection of family unity.²³ Following the recommendations made by the final Act of the Conference that adopted the 1915 Convention, the majority of states, that are or are not part of it, respect and guarantee the principle of family unity. Thus, the members of a family, based on this principle, can be granted the refugee status in case only one family member was already granted a form of protection.

Although The 1915 Convention does not contain the principle of family unity, regardless, all states, including the European Union, introduced in its norms that provide the status of the refugee or the procedures and conditions for obtaining a form of protection, the principle that guarantees the right to family unity. The European Union’s legislation establishes this principle as being mandatory in article 23 of the 2011/95/UE Directive that provides that member states will ensure that family unity can be maintained in the situation in which a person was gained a form of protection. As we conclude from the established points, the main condition in order to gain protection for family members is acquiring the refugee status or another form of protection²⁴, but not during the asylum procedure.

Regarding family members that can be included in the establishment of this principle, Law 122 of 2006 relating to asylum in Romania, established that these are, firstly, the husband or wife and unmarried minors. Likewise, no distinction is made between the minor born within a marriage or outside one, as well as if the minor is the child of only one spouse or of both married people.

There are cases in which the principle of family unity cannot be respected, having the same conditions for protection against deportation as any other asylum claimant. These are cases in which there are serious reasons to think that the person in question committed a crime against peace, war crime or a crime against humanity or another serious crime before requesting international protection or if that person represents a danger to the requested state’s security. Therefore, if the person, a member of a refugee’s family and for whom family unification was requested, enters under the incidence of the crimes mentioned above, should not have access to the refugee status.

The massive income of immigrants and the desire to control the situation that seems out of control, incites state members to adopt controversial amendments in legislation relating to the status of refugees. One example in Denmark that lately, ignoring critics, adopted the reform of the asylum system, which, along with confiscating the asylum claimants’ assets, provides diminishing of social aids as well as the time-frame for reuniting the family of the asylum claimants from 1 to 3 years. The first step, made by Denmark, is enough for other states to request legislative amendments in the field of asylum in order to facilitate the management of this phenomenon.

4. Conclusions

In the given paper, whose subject is inspired by events that have taken place in Europe on the basis of the migration process of population whose country of origin is under fire, we tried to highlight the principles that govern the whole system of the refugee protection. At the same time, we compared the international norms with those of our country in this respect, that refer to the status of refugees, the procedure for receiving a form of international protection, and, lastly, the rights and obligations of both the asylum claimant as well as of those who received protection after being declared refugees.

Thus, we observed that some of the laid out principles were not expressly provided in the international norm relating to refugees but that are specified in the national norm, that also underlines the sanctions applicable in case of breaking the rules that were analyzed in the present paper, namely: the principle of confidentiality and the principle of non-application of criminal sanctions.

The necessity of establishing principles was generated by the desire to find a safe way to protect the persons that lack protection from their state of origin, the principles being, thus, a solid reason for them to seek refuge. At the same time, these allow states that receive asylum application to protect their own citizens through the exceptions mentioned within the same principles.

Respecting the principles that govern the asylum field guarantee the refugee the protection of the fundamental rights established through The Universal Declaration of Human Rights and other international norms, firstly the right to life and physical integrity through access to the asylum procedure, without any discrimination. Thus, any person that finds himself in the situations analyzed in the present paper, extracted from the Convention relating to the status of refugees, has the right to ask permission to find refuge in another state when protection from their state of origin is lacking, as well as the fact that they cannot be deported without a well-defined reason in a country in which there are reasons to believe that their lives are in danger. Thus, we can say that these regulations are welcomed in the asylum field. However, the recent amendments in national legislation regarding the principle of non-application of criminal sanctions raises questions regarding the period in which this can be applied. We can state that, in the context of the migration process and taking into consideration that massive intake of immigrants, legislative tightening are meant to protect a country’s own citizens.

From the analyzed facts, we deduce that, also within the non-refoulement principle, in the exceptions chapter, some tighter amendments are welcomed, for the purpose of deporting a claimant the moment he was found guilty of a crime committed on the territory of the state that offers him protection and not be imprisoned for less than five years, as it is stipulated in the national legislation.

This amendment is not a sign of discrimination but rather a sign of the state protecting its own citizens but also good-faith, peaceful refugees. On the other hand, it is fair to want that our country’s laws are respected, as well as the values of the Romanian people. It is our right to be protected but to also be our own masters in our country, to be respected by any foreigner regardless or race or other ideologies.

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