FECL 12 (February 1993):

EXPULSION AND ASYLUM: THE SITUATION OF KOSOVO-ALBANIANS

A delegation of the Swiss catholic charity, CARITAS-Swizerland visited Kosovo last November. The delegation gathered information on the human rights situation in Kosovo and its effects on refugee fluxes. The findings of the delegation have been published in a report. In its conclusions, CARITAS calls for drastic changes in Swiss asylum practice with regard to Kosovo-refugees. However, Switzerland is not the only European country leading a restrictive asylum policy against Kosovo-Albanians. We therefore publish a synopsis of the report.

 

Kosovo-refugees in Switzerland

In 1991, Kosovo-Albanians formed the largest group of formal asylum seekers among refugees from former Jugoslavia in Switzerland. Refugees fleeing the civil war in the embattled regions of Bosnia and Hercegovina were accepted on a provisional base outside regular asylum procedures.

The recognition-quota for asylum seekers from Kosovo is unknown. It was at 1,8% for all asylum seekers from ex-Yugoslavia in 1991 (more than 14'000 applications). Asylum seekers from Kosovo are usually deported after the rejection of their application. As deportations directly to Kosovo are impossible as a result of the UN's sanctions against Serbia/Montenegro, they are carried out via a third country, mostly Macedonia.

Deserters from the federal army of "rest"-Yugoslavia are accepted provisionally on condition however that they bring evidence for their desertion.

 

Political asylum for deserters?

The report names fear of being drafted by the "rest"-Yugolsavian federal army as the main reason for young Albanians, to flee Kosovo.

All men aged from 18 to 27 are drafted. In the event of "increased political tension" men aged between 16 and 60 may also be drafted.

Since recently, even parents of men refusing to obey a draft order are fined with up to 90'000 dinars.

As opposed to the practice of Swiss asylum authorities, deserters often have no possibility to prove that they have been drafted.

A liberal interpretation of the refugee status would allow for granting political asylum to deserters from ex-Yugoslavia. Thus, the UNHCR's office in Bonn contends that an applicant's claim must be considered not only in case of the risk of disproportional punishment on political grounds, but as well in cases where the concerned "does not wish to participate in actions violating international law and can not by other means... effectively evade participation in such war crimes." The UNHCR concludes that "it is therefore unreasonable not to grant international legal protection from refoulement to a person trying to avoid such violations of international law by fleeing."

 

The judiciary in Kosovo

The Serbian judiciary in Kosovo exposes the Albanian population to deliberate discrimination in all domains.

Since 1981 about 2000 Albanians have been sentenced to long term imprisonment for political delicts according to Serb and Yugoslav penal law.

In terms of figures however, the use of accelerated procedures based on the "Law of Petty Offence" is more revealing. According to this law, anybody found guilty of disturbing "public calm and order" or of offending "patriotic and socialist sentiments of the citizens" can be punished with up to 60 days imprisonment. In practice, judges usually order immediate imprisonment.

From 1981 - 1991 between 20'000 and 30'000 Albanians have been sentenced according to this pattern for "subversive behaviour" of all sorts, including attending classes in an "illegal" (Albanian) school or seeking treatment within the "alternative (Albanian) health system".

According to concurring information gathered by the delegation, all members of the Albanian community are exposed to the risk of prosecution based on the Law of Petty Offence.

Imprisonment under the Law of Petty Offence is often used by the judiciary and the police to press detainees into confessing serious policital or other crimes.

Thus, these accelerated petty offence procedures open the door to systematic inhuman treatment.

In practice, the right of defense is all but non-existent. Detainees are often denied access to paper, pencil and telephone.

Since 1990, courts are almost exclusively manned by Serb judges.

The rights of the lawyers are systematically and massively infringed upon, based on an extensive interpretation of the penal procedure code of the Republic of Yugoslavia refering to "Threat against state security".

Lawyers are permanently exposed to harassment and inhuman treatment. In November 1991, lawyer Mikel Marku was beaten to death in a police station.

 

The problems of labour and social protection

800'000 of the two million Albanians in Kosovo, are at working age. More than half of them have however left the country.

About 250'000 of the remaining Albanians at working age in Kosovo are members of the Albanian workers union, BSPK. Until September 1992, more than 100'000 of these union's members had been dismissed. Further 42'000 have never had any employment.

As the large majority of the Albanian population is concerned by the current discriminatory dismissal policy of Serbia, the social situation in Kosovo is catastrophic. More than half a million Albanians live without any public assistance, let alone a salary. Whereas unemployed Serbs receive assistance, Albanians do not. The BSPK labels this as "etnic cleansing".

All Albanians working in the health system have been dismissed. Health insurance is linked to employment.

Moreover, Albanians generally lack confidence for Serbian medical staffs.

The fact that even the Red Cross of Kosovo at present has an exclusively Serbian staff is another indicator for the scale of ethnic cleansing in the health sector.

Albanians are barred from higher education, as they refuse the Serbian education programme. But many students attend "illegal" schools set up by unemployed Albanian school and university teachers.

 

Discrimination

The report names a long line of Serbian governmental programmes and laws aiming both at the discrimination of Albanians and the strenghening of Serbian presence in Kosovo. Among these measures are programmes for the economical development of Serbian settlements, housing construction for Serbs, public credit facilities for the purchase of real estate by Serbs, etc.

In the opinion of CARITAS, the mere promulgation of such laws must be qualified as a policy of Apartheid.

 

Effects on asylum practice

As a result of the findings above, CARITAS holds that Albanians fleeing from Kosovo must generally be considered as "violence refugees". According to Swiss law, refugees of this category can stay on a provisional basis. But on an international law level they are unsufficiently protected from deportation back to their country of origin.

With regard to Kosovo, we are confronted with a package of politically and ethnically motivated measures which violate fundamental rights to an extent amounting to the annihilation of the existence of the subjugated ethnic group.

It is stressed in the report that according to UNHCR-standards, such circumstances fall under the definition of the refugee status of the 1951 Geneva Convention.

In the view of CARITAS, the general human rights situation in Kosovo must be fully taken into account, when considering the subjective claim of persecution expressed of Kosovo-Albanian asylum seekers.

 

Deportation of rejected asylum seekers to Macedonia and Kosovo

Due to the current UN-sanctions against "rest"-Yugoslavia, deportations back to Kosovo are currently impossible. This has lead the Swiss authorities to deport rejected Kosovo-Albanian asylum seekers to Macedonia. This practice draws the following remarks from CARITAS:

The practice of the Swiss authorities is problematic with regard to international law. Macedonia is de facto an independent state. The de iure recognition by the international community was delayed only by Greek opposition. Thus, Switzerland actually deports rejected asylum seekers to a third country. This practice amounts to a circumvention of UN-sanctions against "rest"-Yugoslavia. It is politically mistaken as well, because it contributes to creating a new refugee problem in a third country which already has to cope with a large number of refugees together with a languishing economy. Moreover a minority conflict already exists in Macedonia. Albanians constitute between 25 and 40 percent of the population, according to the different sources. Tension is mounting against Albanians. As late as November 1992 it resulted in the first violent riots resulting in the death of five persons. Since then, harassment of the Albanian minority by security forces has increased. Obviously, the deportation of further Albanians to Macedonia can only aggravate this development.

According to the new Macedonian citizenship law, any person who is not born in Macedonia or has not resided in the country for at least 15 years is considered as a foreigner. Albanians deported to Macedonia are therefore subject to foreigner legislation. They are granted entry and may stay for a maximum three months, if they have sufficient ID-documents. They are denied both the right to work and any form of public assistance. After three months they can be deported by force.

They have the theoretical possibility to apply for asylum, but in practice, Macedonia, very much in line with Schengen policies, rejects such claims on the grounds that the asylum seeker concerned has already had access to an asylum procedure in a third country.

According to the regional office of UNHCR in Skopje, deportations of Albanians under police escort directly from Skopje airport to the Serbian border do occur. In such cases, the deportees are handed over directly to the Serbian authorities.

According to the Macedonian Ministry of Home Affairs, a special agreement has been reached with Sweden, providing for the routine transfer of Albanian asylum seekers deported from Sweden to the Serbian border. The costs for the transport and the police escort are payed by Sweden. The Ministry of Home Affairs intends to reach such bilateral agreements with further Western European countries.

It is obvious, that such practices expose the refugees concerned to increased risk. The mere fact of having applied for asylum abroad is punishable according to Yugoslavian and Serbian criminal law ("Insult of the state"). Clearly, Macedonia can not be considered as a "safe host country".

 

The UNHCR in Kosovo

In a particular chapter on the activity of international organisation in Kosovo, mention is made in the report of a program of the UNHCR aiming at resettling thousand displaced Serbs from Bosnia... in Kosovo!

 

Conclusions

CARITAS draws the following conclusions from its findings:

  • The present, very low recognition quota for Albanian asylum seekers from Kosovo in Switzerland [and most other European countries] can not be justifi ed, considering the extent of generalised political persecution in Kosovo.

     

    Source: Vertreibung und Asyl - Reise einer Delegation der Caritas Schweiz in den Kosovo/BR Jugoslawien und Mazedonien vom 16. - 20. November 1992, Bericht. 24 pages, German.
    Available at: Caritas Schweiz, Postfach, CH-6002 Luzern. Tel: +41/41 522222, Fax: +41/41 512064.