The actual situation of the emigrants in Europe requires a lot of attention on dealing with the asylum seekers problem, where despite all, common understanding and cooperation is a must for all the European Countries. Related to this issue, the European Centre finds it very relevant to be informed about the standards of the right to asylum in the international law, as to provide the right understanding of the legislative and the judicial in the Western Balkans.
The European Centre with the contribution of the Tranzit l.t.d organized the workshop on “ ECtHR Standards on the right to asylum” on 21 December 2015, at Tirana International.
The workshop had two honorable guest speakers from the European Court of Human Rights:
Mr. Ledi Bianku – The judge of Albania at ECtHR
Mr. Robert Spano – Judge from Iceland at ECtHR
The activity was attended by many interested individuals including, the chair of the Constitutional Court of Albania, Mr.Bashkim Dedja, the chair of the High Court of Albania, Mr.Xhezair Zaganjori, the Dutch Ambassador in Albania Mrs.Dewi Van De Weerd, the chair of the Environmental Department at UN Albania, Mr.Bas Berends, vice chair of Central Committee of Elections in Albania, Mr.Denar Biba, ex judge in the Constitutional Court of Albania, Mrs.Vjollca Meçaj, as well as many good-willing students.
The workshop aim was to bring to our attention and discussion the standards of ECtHR related to asylum right, which is the most current and debated issue now on Europe.
Both of our speakers, Mr.Bianku and Mr.Sapno emphasized that there is no article in the Convention that relates to the right to asylum, to asylum seekers or refuges. There are only some articles that mention specifically the citizens of the third countries as Article 16 (limitations the political activity of the foreigners), Article 4 Prot.4 (the ban of collective deportation of the foreigners) and Article 1 Pro.7 (Foreigner’s procedural guarantees during deportation). On the other hand, the Convention elaborates that the citizenship of the asylum-seeker is not important, whereas each member state should be held responsible in case of any violation, including also the application of the principle of extra-territoriality. As for the Charter of Fundamental Rights of the European Union, judge Bianku stated that Article 18 on the right to asylum of the Charter refers to the Geneva Convention and some other Protocols, as well as on the Treaty of the European Union. However, in considering cases of asylum and related violations, ECtHR has found that the most invoked articles are:
Article 2 – the right to life
Article 3 – prohibition of torture
Article 5 – right to liberty and security
Article 6 – right to a fair trial
Article 14 – prohibition of discrimination
Article 4 prot.4 – prohibition of collective deportation of foreigners
Article 1 Prot.7 – procedural guarantees related to the deportation of the foreigners.
The guarantees offered under Article 2 on the right to life, include the principle of non-refoulement, where by that is meant that the asylum seeker cannot be returned to the home country if he/she faces death penalty, the potential of being issued death penalty, uninformed deportation and other cases where her/his life is being risked, for example the procedural guarantees or the lack of medical care that can risk the life.
On the other hand, if we have a violation of Article 3, the situation is in much favor of the asylum seeker as where the burden of proof relies on him in the beginning, it switches to the state if the asylum seeker proves that there has been a risk of being a victim under Article 3, as long as the risk is real and reaches to e minimum level of harshness. The right under Article 3 is an absolute right, therefore it cannot be subject to interpretation or to any proportionality test in its applicability. Even in cases of persecution, this Article does not require any reason or justification, said judge Bianku in its presentation.
The Dublin System which is being discussed a lot recently for its efficiency and ability to deal with the situation of the Syrian refugees in Europe, provides that the member states are responsible for examining the asylum requests from the citizens of the third countries. It also provides that the movement of those citizens to another member state, does not reduce the responsibility of the first state to assure that the applicant will not be subject to treatment in violation of Article 3, and that the case of each applicant should be examined individually, whereas the systematic deficiencies won’t be considered as opposed to the danger and the situation found in the country of destination. However, if we consider the fact that the EU bases its policy on emigrant on the Dublin Regulation II, those policies do not reflect the hardships of the situation where despite the limitations of the Greek authorities, it appears that the burden falls under Greece and other south-east European countries.