FECL 30 (December 1994/January 1995):
The governments of western Europe sat in the dock at the Basso Tribunal on Immigration and the Right of Asylum in Europe, held in Berlin from 8 - 12 December. The British jurist, Frances Webber, played the role of the Prosecutor on behalf of the asylum seekers. Her opening speech is a distressing account of the grave violations of human rights and international law committed by European governments and administrations against asylum seekers in recent years.
The governments of western Europe are accused of conspiring against asylum seekers and of violating international law; further, of instigating xenophobic sentiments in the European public by defaming refugees as profiteers and criminals, and thereby as a security risk.
The aim with such proceedings, conceived in "secret and unaccountable intergovernmental fora" is to keep refugees out of Europe, the Prosecution claims. The executive powers of the western European states are achieving this objective by a policy of setting faits accomplis that are legalised afterwards by parliaments.
Asylum seekers are prevented from leaving the country of their persecution
The citizens of 129 countries, including many states notorious for systematic violation of human rights, now require visas to enter EU or EEA territory. As a result, genuine refugees find themselves in a catch-22 situation, the prosecution opening speech suggests:
"Refugees do not normally get visas. The Geneva Convention defines a refugee as someone `outside the country of nationality and unable or unwilling to return there'. This provision allows European states to deny visas to would-be refugees who are still in their own country; once they leave, visas are refused on the ground that they are out of danger and can stay were they are".
Furthermore, carrier sanctions, adopted by most European states effectively prevent refugees from fleeing the country of their persecution. Carriers bringing undocumented or falsely documented passengers are fined, even if the passengers are subsequently recognised as refugees. As a result, more and more carriers refuse passengers suspect of being would-be asylum seekers.
By blocking all ways for refugees to enter Europe legally, western European governments are forcing refugees into illegality and putting their lives at risk by leaving them at the mercy of ruthless smugglers, the prosecutor claims.
Militarisation of European borders
The borders of western Europe have become more and more militarised in the past five years, the prosecutor claims; she presents a long list of detailed evidence, from, among others, Germany, Austria, and Spain: "The Austrian border is guarded by 2,000 soldiers, who turned away 77,000 undocumented refugees in the first six months of 1993". In Germany, the number of people admitted to the country to claim asylum dropped by 70 per cent between 1993 and 1994 as a result of increased border controls. In 1992, Spain entered into agreement with Morocco whereby 2,000 Moroccan troops guard the coast to prevent the departure of asylum seekers to Spain (see FECL No.10, p.1; No.25, p.3).
Several governments have declare transit-zones on airports' extra-territorial ground. Asylum seekers can be detained in these zones and then expelled without formally having entered the country.
"Safe third country" concept breaches against the spirit of the Geneva Convention
In blatant breach of UNHCR guidelines, refugees who have travelled through countries deemed "safe" are summarily turned back to those countries.
This practice has been established by the Dublin Convention, which sets out which single EU member state is responsible for examining an asylum application. According to the prosecutor, the number of so-called "refugees in orbit" has increased as a result of the Dublin regulations.
Applications of asylum seekers who have travelled through a country deemed "safe", can be summarily rejected as "manifestly unfounded" (see FECL No.11, p.1,2,and 10) . A number of western European countries do not even consider their claims, the prosecution asserts and names Spain as one of several countries that recently introduced a new asylum law which introduces immediate expulsion for "manifestly unfounded" applications.
Violation of the principle of "non-refoulement"
In violation of Article 33 of the Geneva Convention, refugees are sent back to so-called "safe" countries, which in turn send them back to the countries they have fled from. Among other cases, the prosecutor mentions Greece, which is accused of deporting 70,000 refugees to the country of their persecution.
Poland arrested 33,000 attempted "illegal entrants" in 1992 and its Interior Minister has announced a programme to fly back "illegal immigrants" entering the country.
No common interpretation of the Geneva Convention
Among the signatory states of the Geneva Convention, there is no common interpretation of the criteria defining a refugee. Persecution by a local population is frequently not recognised, even when authorities are unwilling or unable to protect the victims. Torture victims have frequently been returned to their home countries on the ground that they have failed to prove that they will be tortured again.
This is one example among many others named in the prosecution opening speech for a general trend towards an inversion of the onus of proof to the prejudice of refugees in asylum procedures.
The classification of a country as "safe" is a matter of governmental discretion in each EU member state and not subject to any public control. Assessments are often based on biased reports from national embassies whose main interest lies in maintaining good relations with countries of persecution. Such political-economic factors can lead to a country being deemed safe by one EU member state, while being considered as unsafe by another. The prosecutor names the German Federal Interior Minister Manfred Kanther's insistent calls for Turkey's inclusion on the German list of safe countries of origin. Kanther's demand should be seen against the background of Germany's privileged relations with Turkey.
Refugees are treated like criminals
More and more, refugees are treated like criminals, the prosecution claims. In a growing number of countries, asylum seekers are systematically fingerprinted and their personal data, including confidential information, stored and processed in electronic data banks. The only other group subjective to such comprehensive measures of pro-active control are criminal detainees.
The detention of asylum seekers not suspected of any crime has become common practice in a increasing number of western European states, as a means of ensuring their deportation. The prosecution opening speech cites Germany, where asylum seekers can be detained for up to 18 months, and Switzerland, where asylum seekers are often obliged to stay in a particular place and can be detained if they do not comply with these geographic restrictions of their free movement.
Senior politicians foment popular racism
Western European governments often stress that strong anti-refugee sentiments among the public leave them no choice but to limit the influx of asylum seekers. Yet, the prosecutor before the Basso Tribunal suggests that senior politicians including prime ministers, have themselves been instrumental in fomenting popular sentiments against asylum seekers by systematically labelling them as "false refugees" and "parasites". This negative perception of refugees is additionally fuelled by measures such as refusing asylum seekers the right to work and forcing them into the segregation of isolated "reception centres".
Moreover, western European governments have supported repressive regimes and thereby contributed to creating the conditions from which refugees flee. People fleeing these regimes are then labelled as "terrorists". The prosecution cites the attempts of the German and the French governments to criminalise Kurdish refugees from Turkey (see FECL No.22, p.1) and the French Interior Minister Pasqua's clamp-down on alleged Algerian extremists.
Violation of the right to life
The charges brought against western European culminate with the prosecutor's conclusion that, in their eagerness to keep refugees out, western European governments are denying asylum seekers the very right to life as stated in the European Convention on Human Rights and the International Covenant on Civil and Political Rights:
"Asylum seekers are threatened by racist violence instigated by politicians' use of popular racism. They are exposed to the risk of death by callous neglect in detention and by being returned to unsafe countries. They are exposed to the risk of suicide from despair at the failure to protect them.
The frequency of suicides among asylum seekers has increased as the criteria for asylum have become stricter and the percentage of claims which succeed has shrunk from around 20 per cent to less than 5 per cent.
In October 1994, ten Tamils drowned trying to cross the river Neisse into Germany from Poland. Survivors said that Polish and German border guards watched impassively.
No one knows the numbers who have died trying to get to Europe. No one knows the numbers of people who have died after seeking and being denied asylum at the borders of Europe. No one knows the numbers who have died at the hands of officials of their own countries on being returned as rejected asylum-seekers from Europe.
The measures which deny asylum to those in need of it violate the right to life of asylum-seekers."
Source: Prosecution Opening before the Basso Tribunal, Berlin, 8.12.94, Frances Webber. To be published in January 1995 in: Europe on Trial, Institute of Race Relations (2-6 Leeke Street, London WC1X 9HS, UK; Tel: +44/71 8370041).