Background Information on the Situation in Romania in the Context of the "Safe Third Country" Concept
|Publisher||UN High Commissioner for Refugees (UNHCR)|
|Publication Date||17 May 1995|
|Cite as||UN High Commissioner for Refugees (UNHCR), Background Information on the Situation in Romania in the Context of the "Safe Third Country" Concept, 17 May 1995, available at: http://www.refworld.org/docid/3ae6b31d33.html [accessed 9 December 2016]|
1. The Office of the United Nations High Commissioner for Refugees (UNHCR) considers the notion of safe, or first, country of asylum as a useful basis for agreements between States. Such agreements provide for the return of refugees and asylum seekers to countries where they have had or could have sought asylum and where their safety would not be jeopardized, either within that country or by an act of refoulement. The Office is concerned to ensure that refugees receive effective and adequate protection in a country of asylum, and welcomes and promotes cooperation among States to this end.
2. The Office has identified some factors for consideration in determining whether the return of a refugee or an asylum seeker to a particular country should take place. These factors, which include both formal aspects and the practice of the State concerned, are: ratification of and compliance with the international refugee instruments, in particular compliance with the principle of non-refoulement; ratification of and compliance with international and regional human rights instruments; readiness to permit asylum seekers to remain while their claims are being examined; adherence to recognized basic human rights standards for the treatment of asylum seekers and refugees; and, notably, the State's willingness and practice to accept returned asylum seekers and refugees, consider their asylum claims in a fair manner and provide effective and adequate protection.
3. Romania acceded to the 1951 Convention and 1967 Protocol relating to the Status of Refugees in August 1991. It ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms in June 1994. A draft refugee law was in initiated by the Ministry of the Interior at the end of 1991 but is yet to be debated by Parliament. In the meantime, a refugee status determination procedure is provided for in Governmental Instructions jointly issued in September 1992 by the Ministries of Foreign Affairs, Interior, Justice and Labour and Social Protection. These are the four main Ministries involved in the Romanian Committee for Migration Problems (RCMP), the interministerial body responsible for refugee and migration affairs in Romania which was created in 1991. Romania has taken various other steps towards implementing the provisions of the 1951 Convention, including guaranteeing to refugees the right to free pre-university education and to wage-earning employment.
4. The 1991 Constitution of Romania provides that international human rights treaties to which Romania is a State Party have direct effect in domestic law and therefore in principle the rights of refugees and asylum seekers should be fully protected in Romania. However, in the absence of national refugee legislation and an appropriate refugee status determination procedure, such constitutional rights are not easily exercised and there is no assurance for the time being that Romania will grant effective protection to all persons who claim to be in need of international protection.
5. Under the Governmental Instructions issued to regulate Romania's implementation of the 1951 Convention until national refugee legislation is enacted, any asylum seeker can apply, in writing, for the protection of the Romanian State either at one of Romania's diplomatic or consular offices or upon arrival at the border or once inside the territory of Romania. The Office notes, however, that these Instructions are not always followed in practice. The Office is aware of instances where access to Romanian territory or to the asylum procedure has been denied to asylum seekers without proper travel documents or valid visas including those returned by third countries. In cases where asylum seekers managed to contact UNHCR from Otopeni International Airport they have frequently alleged that their asylum requests were ignored by the authorities. When the Office has subsequently intervened, access has nearly always been granted, although this can take some time. Interpretation is not provided and asylum seekers may therefore experience difficulty in making their fears known to the authorities.
6. The procedure is thus not necessarily accessible and even after access is granted it may take up to two months before an asylum application is registered, during which time undocumented asylum seekers or those without valid visas are liable to arrest by the authorities according to Article 65 of the Law on Romania's State Frontier (Law No. 56 of 1992) which makes "illegal border crossing of the State frontier to enter or leave the country" an offence punishable by three months' to two years' imprisonment. Likewise, Romania's Penal Code provides for punishment by three months' to three years' imprisonment for "forgery of official documents" or for "the act of presenting oneself by use of false identification." Asylum seekers are not properly interviewed after registration and consideration of the well-foundedness of their claim is summary. Those who are rejected at first instance are not provided with any substantive reasons for the rejection and are thus denied any meaningful possibility of an appeal. If they do appeal, the appeal is heard by the same body which made the original determination. The interim refugee status determination procedure has thus procedural flaws which are not in conformity with recognized international standards. At the other end of the spectrum, the Office notes that a significant number of asylum seekers have been waiting for determination of their refugee status for as long as two to three years.
7. The Office recognizes the many other pressing priorities of the Romanian Government. In the face of enormous social and economic difficulties inherent in a restructuring process, effective management of the refugee problem is not an easy task. The situation is further complicated by the fact that Romania. like many other countries in Central and Eastern Europe, is being used by asylum seekers rather as a transit stop than as a country where they wish to seek protection and stay.
8. The Office has urged the Romanian Government to establish appropriate registration, reception, status determination and integration structures and procedures. Until this happens, the Office is concerned that the delay in or denial of access to the asylum procedure and the serious shortcomings of the procedure itself may expose persons genuinely in need of international protection to a risk of return to a place where their life or freedom would be endangered.
9. As a result of the above considerations, the Office would recommend that the return of asylum seekers and refugees to Romania, on the basis of their stay or transit there, be carried out on the basis of bilateral readmission negotiations aimed at obtaining from the Romanian authorities assurances that they agree to readmit the person(s) in question, consider their asylum claim(s) in a fair procedure and provide adequate protection. In the absence of such assurances from the competent Romanian authorities, the Office would, at present, advise against the return to Romania, on the basis of their stay or transit there, of asylum seekers and refugees who have arrived in third countries.
UNHCR Geneva, 17 May 1995