Relationship between asylum procedures and extradition procedures

Transcription

1 Relationship between asylum procedures and extradition procedures Committee of Experts on the Operation of European Conventions on Co-operation in Criminal Matters (PC-OC) Strasbourg, France 29 May 2013 Olivier Beer, Representative UNHCR Strasbourg

2 Extradition - Asylum Extradition Asylum Surrender of an individual from one State to another for the purpose of criminal proceedings Providing international protection to individuals at risk of persecution and other kinds of serious harm Extradition and Asylum don t have the same purposes and criteria. Can be conducted in parallel.

3 Historical linkages Both concepts known in ancient times Until mid-20 th century asylum understood as right of a State not to extradite an individual Drafters of 1951 Refugee Convention institution of asylum should not undermine extradition relations

4 Modern developments De-linking asylum from extradition in 1951 Convention relating to the Status of Refugees New legal regime "refugee status" Exclusion provision of Article 1F(b) of the 1951 Convention Development of non-refoulement provisions in international refugee/human rights/international criminal law from 1945 onwards Obligation to consider risk of persecution or other serious harm (torture, inhuman treatment, physical security) to individual in the extradition context Concept of universal jurisdiction or international justice mechanisms allowing other avenues of justice than exclusion (Adolf Eichmann in Israel)

5 Core principles of international human rights law and international refugee law must not be undermined or ignored as a consequence of the implementation of extradition treaties or counter-terrorism measures. UNHCR is concerned with: Measures unduly restricting access of asylum-seekers to the territory or asylum procedures; Restrictive or wrong interpretation of the refugee definition of the Refugee Convention; Forcible removal of refugees or asylum-seekers in violation of the principle of non-refoulement. ECtHR, Bozano v. France, 1996

6 Refugee definition The 1951 Convention relating to the Status of Refugees defines as refugee a person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality [or former habitual residence] and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country [or return to that country] Article 1A(2)

7 Exclusion from international refugee protection Article 1F of the 1951 Refugee Convention: The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.

8 Extradition and Asylum Asylum-seekers/refugees: Not exempt from operation of criminal law No general bar to extradition of asylum-seekers or refugees in all circumstances But: Principle of non-refoulement fully applies in the context of extradition (obligation not to subject any person to torture or to inhuman or degrading treatment or punishment under article 3 of ECHR).

9 Non-refoulement Article 33 - Prohibition of expulsion or return ("refoulement") 1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

10 Principle of non-refoulement Article 33(1) of the 1951 Convention Prohibits return to a risk of persecution Applicable to all forms of return or rejection at the border Applicable to refugees until refugee status ceases Applicable to asylum-seekers for entire duration of refugee status determination procedure Exceptions to non-refoulement protection Only in circumstances of Article 33(2) of the 1951 Convention Protection against return under international human rights law continues to apply

11 Extradition request concerning refugees Principle of non-refoulement under international refugee law Article 33(1) of the 1951 Convention mandatory bar to extradition to a country where there is a risk of persecution Exceptions provided for in Article 33(2) may apply Refoulement protection under international human rights law applies in all circumstances e.g. Art 3 ECHR, Art 3 UNCAT, Art 6 and 7 ICCPR

12 Refugees (cont d) If indications that refugee Was wrongly recognized cancellation proceedings Engaged in conduct within the exclusion provisions of Article1F(a) or (c) of the 1951 Convention revocation proceedings Final determination on cancellation/revocation of refugee status before decision on extradition

13 Extradition requests concerning asylum-seekers Extradition request from country of origin Protection against refoulement under Article 33(1) of the 1951 Convention for the entire duration of the asylum procedure Refugee claim must be determined by asylum authorities in fair and efficient asylum procedure (confidentiality sharing of information without putting the person or relatives at risk) Extradition request Not a bar to admissibility into asylum procedure Not as such a ground for rejection of asylum claim

14 Asylum-seekers (cont d) In the asylum procedure, need to examine Inclusion: well-founded fear of persecution? If included, does an exclusion ground apply? War crimes, crimes against humanity, crimes against peace Serious non-political crimes Crimes contrary to the purposes and principles of the UN Final determination on eligibility for refugee status before decision on extradition can be made Not a bar to admissibility into asylum procedure Not as such a ground for rejection of asylum claim

15 Asylum-seekers (cont d) Extradition request from country other than country of origin Requested State has obligation to ensure Respect for principle of non-refoulement Access to fair and efficient asylum procedure Wanted person may be extradited if Established that no risk of persecution and Asylum claim will be examined in line with standards required under 1951 Convention

16 Asylum-seekers (cont d) If indications that a claim is manifestly unfounded (abusive) Accelerated As. Procedures (no defin) can apply but there are safeguards (CM Guidelines) (ECtHR, IM v France) Some asylum-seekers may have valid reasons for submitting an asylum application after an extradition request Need to examine circumstances of the case credibility assessment -Prioritize examination of claim to avoid long procedures - Ask for explanations Determination of the merits of the claim

17 Diplomatic assurances Undertaking by the requesting State that the wanted person will not be Sentenced to death Subjected to torture or other serious harm Acceptable only if suitable and reliable means to eliminate risk

18 Diplomatic assurances (cont d) Wanted person is a refugee: Assurances by country of origin should be given no weight risk of persecution already established! Assurances by other country suitable and reliable? Wanted person is an asylum-seeker: Assurances by country of origin assess in light of all circumstances, as part of refugee status determination Assurances by other country suitable and reliable?

19 Hierarchy of obligations Duty to extradite (e.g. under extradition treaty), vs Obligation not to return a person to a risk of persecution, torture, other irreparable harm If conflict of obligations: Non-refoulement obligations under international refugee and human rights law take precedence (Art 103 UN Charter together with Articles 55 and 56 of the UN Charter) Due to nature of obligations (prevalence of Charter obligations over those stemming from other international instruments )

20 Non-refoulement in the extradition process Refusal grounds in extradition law Political offence exemption Discrimination clause (e.g. Art 3(2) of the European Convention on Extradition) Speciality Risk of torture or other human rights violations Person a refugee or asylum-seeker

21 Article 3(2) European Convention on Extradition Extradition shall not be granted if the requested party has substantial grounds for believing that a request for extradition has been made for the purpose of prosecuting or punishing a person on account of his [or her] race, religion, nationality or political opinion, or that that person s position may be prejudiced for any of these reasons.

22 Conclusions Extradition important tool in fight against impunity International protection obligations form part of legal framework governing extradition Where extradition and asylum intersect, ensure: Rigorous assessment of wanted person s eligibility for international refugee protection Due consideration for protection needs of refugees and asylum-seekers Full respect for principle of non-refoulement

23 UNHCR s Recommendations If an asylum claim is manifestly unfounded, the State could channel it to an accelerated procedure but there are safeguards (CM Guidelines on human rights protection in the context of accelerated asylum procedures) An asylum-seeker should be protected against extradition for the entire duration of the asylum proceedings. States should adopt national legislation which regulates the relationship between extradition and asylum procedures. Extradition and asylum should be conducted in separate procedures but can be conducted in parallel.

24 Recommendations States should accede to the 1951 Refugee Convention and its 1967 protocol without reservation (Andorra, San Marino, Turkey). States should set up accessible, fair, and efficient asylum procedures. States should conduct refugee status determination in a manner that is consistent with international refugee law. States are bound to ensure compliance with their non-refoulement obligation under international human rights law.

25 Thank you!