H.E. Dr. Walter Schwimmer
What is the Ostrich Protocol?
How the EU member states play ostrich when it comes to human rightsviolations inside EU?
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The Treaty on the European Union, in its current format also known as the Lisbon Treaty, as well as the EU Charter of Fundamental Rightsclaim to establish an area of freedom, security and justice, founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and the respect for human rights. That sounds perfect. After centuries of inhuman treatment of people very often by their own governments, culminating in the tyrannies of communism and Nazism in the 20th century, EU citizens should be able to feel safe from brutal attacks and illegal operations of a violent state, if not ….Ifthey are not refugees from another EU member state and they do not try to look for protection because they were subject in their own state to political persecution, inhuman treatment or even torture.
The Geneva Convention about status of and asylum for refugees, persons subject to political persecution, is one of the great international achievements in the field of human rights. The European Union as a successful project of peace, freedom and justice promises in Art.18 of its Charter that "the right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention.." But why is this guarantee denied when the asylum seeker comes from an EU country?
The EU Treaty consists not only of the main articles, but also of some so-called “protocols” which are “annexed” to the Treaty by the “high contracting parties”, i.e. the Member States. One of these Protocols is PROTOCOL (No 24)ON ASYLUM FOR NATIONALS OF MEMBER STATES OF THE EUROPEAN UNION which reads as follows:
“Thehigh contracting parties,
WHEREAS, in accordance with Article 6(1) of the Treaty on European Union, the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights,
WHEREAS pursuant to Article 6(3) of the Treaty on European Union, fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms, constitute part of the Union\’s law as general principles,
WHEREAS the Court of Justice of the European Union has jurisdiction to ensure that in the interpretation and application of Article 6, paragraphs (1) and (3) of the Treaty on European Union the law is observed by the European Union,
WHEREAS pursuant to Article 49 of the Treaty on European Union any European State, when applying to become a Member of the Union, must respect the values set out in Article 2 of the Treaty on European Union,
BEARING IN MIND that Article 7 of the Treaty on European Union establishes a mechanism for the suspension of certain rights in the event of a serious and persistent breach by a Member State of those values,
RECALLING that each national of a Member State, as a citizen of the Union, enjoys a special status and protection which shall be guaranteed by the Member States in accordance with the provisions of Part Two of the Treaty on the Functioning of the European Union,
BEARING IN MIND that the Treaties establish an area without internal frontiers and grant every citizen of the Union the right to move and reside freely within the territory of the Member States,
WISHING to prevent the institution of asylum being resorted to for purposes alien to those for which it is intended,
WHEREAS this Protocol respects the finality and the objectives of the Geneva Convention of 28 July 1951 relating to the status of refugees,
HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:
Given the level of protection of fundamental rights and freedoms by the Member States of the European Union, Member States shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters. Accordingly, any application for asylum made by a national of a Member State may be taken into consideration or declared admissible for processing by another Member State only in the following cases:
(a) if the Member State of which the applicant is a national proceeds after the entry into force of the Treaty of Amsterdam, availing itself of the provisions of Article 15 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, to take measures derogating in its territory from its obligations under that Convention;
(b) if the procedure referred to Article 7(1) of the Treaty on European Union has been initiated and until the Council, or, where appropriate, the European Council, takes a decision in respect thereof with regard to the Member State of which the applicant is a national;
(c) if the Council has adopted a decision in accordance with Article 7(1) of the Treaty on European Union in respect of the Member State of which the applicant is a national or if the European Council has adopted a decision in accordance with Article 7(2) of that Treaty in respect of the Member State of which the applicant is a national;
(d) if a Member State should so decide unilaterally in respect of the application of a national of another Member State; in that case the Council shall be immediately informed; the application shall be dealt with on the basis of the presumption that it is manifestly unfounded without affecting in any way, whatever the cases may be, the decision-making power of the Member State.”
After very nice introducing words about “fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedomsconstitute part of the Union\’s law as general principles … and any European State, when applying to become a Member of the Union, must respect the values set out in Article 2 of the Treaty on European Union,” the disgraceful truth comes at the end: whatever happened or could happen with the applicant in his country, “the application shall be dealt with on the basis of the presumption that it is manifestly unfounded”!
This Protocol (no 24) stands not only in contradiction to itself and the idea of the European Union and its fundamental documents, Treaty and Charter on Fundamental Rights, but is also a severe violation of international law. The Geneva Refugee Convention, the Universal Declaration of Human Rights and the European Convention on Human Rights have to be respected by the European Union which should not be "a superstate where international laws which have protected individuals for decades are discarded.” It is the disgraceful "ostrich protocol no.24" which should be discarded immediately by the European Council.
We certainly don\’t live in a perfect world. Despite the Universal Declaration of Human Rights of the United Nations, the European Convention on Human Rights of the Council of Europe, the Charter of Fundamental Rights of the European Union, Conventions against torture and inhuman treatment and other International binding covenants human rights violations, torture, illegal detentions, extrajudicial executions etc. are still part of the daily life of too many people. Millions of people are leaving their home country to escape from political persecution, police and military brutality and other unbelievable atrocities. To protect such people the international community set up already in 1951 the Geneva Refugee Convention, the key legal document in defining who is a refugee, their rights and the legal obligations of states, in particular to grant "asylum" to refugees. All member countries of the European Union are party to the Geneva Convention. In addition the EU Charter of Fundamental Rights states in its Art.18 that "the right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community". That looks like the Union is endorsing international obligations of its member states under the Geneva Convention. Therefore anybody subject to political persecution, police brutality, torture, inhuman or degrading treatment, illegal detention, unfair trial etc. should at least get asylum in an EU member country.Fortunately the description of the sad situation of millions of peopledoes not apply to the European Union and its member states. And certainly everybody should desire that this situation does not even apply to a single individual within the European Union. But, is there a guarantee? Or is it just wishful thinking that there will be this guarantee? Could it be that “the high contracting parties” and there representatives, i.e. the heads of state and government of the EU member states base their decisions on wishful thinking? Most likely not, therefore we have to ask what else could be the reasonfor them to “play ostrich” and put, metaphorically speaking, their heads into the sand for not seeing the human rights violation by a partner state in the Union? Among people who know the background of the evolving of Protocol no.24 it is also called the “Aznar Protocol”. As clearly stated by an expert of UNHCR, Karen Landgren, protocol no. 24 (and its assumption that “Member States shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters”)“is the product of a political deal, supported by Spain as the initiator and all those countries who needed the support of Spain in other EU matters”. That Protocol (no 24) had a purely political purpose is also demonstrated by the fact that it refers to nationals of a member state as citizens of the EU. That means that the protocol and therefore the automatic rejection of an asylum request does not apply to non-nationals of an EU member state who seek asylum because of persecution in a member state, for example stateless persons with residence in the EU. What is the reason for discrimination of EU citizens by the European Union? As described by Karen Landgren, Protocol (no24) is not based on legal ground but on pure political decision.
If one believes that political persecution, police brutality, torture, inhuman or degrading treatment, illegal detention, unfair trial could not happen on EU territory one should look to the judgments of the European Court of Human Rights and to the reports of Council of Europe’s Commission for the Prevention of Torture. The Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe adopted a report of MP Marieluise Beck, member of the German delegation to the Assembly, on “Threats to the Rule of Law in Council of Europe Member States” including also members of the European Union. The report, based on facts, realizes politically-motivated prosecutions of political opponents, journalists and civil society activists as well as cover-ups of crimes committed or instigated and organized by politicians! “Serious problems related to the rule of law exist in several member states”. Politically motivated prosecution happens according to the Beck-report and is certainly one of the main reasons to seek asylum. And those who uncover crimes committed or instigated and organized by politicians are obviously under danger in the country where this happens. As one cannot exclude that the same politicians who committed, instigated or organized the uncovered crimes have the power to issue an European warrant, the whistleblowers can be prosecuted on the basis of wrong or fabricated accusations throughout Europe easily and the European partner states are obliged to help, to help the perpetrators. But this is exactly what asylum if well founded should avoid. But currently asylum for an EU citizen is excluded by the Ostrich Protocol. Of course, there were legal remedies, such as appeal to the European Court of Justice or the European Court of Human Rights. But everybody knows very well that these remedies take time, long time. In the meantime the asylum applicant may be extradited to the country of his persecution with unknown consequences.
Among 28 EU member states it was only Belgium who rejected such a deal at the cost of politically persecuted citizens and declared that it will fulfill its obligations under the 1951 Geneva Convention and the 1967 New York Protocol and will carry out an individual examination of any asylum request of a citizen of another EU member state! With this official declaration (no.56) Belgium indirectly confirmed that protocol no.24 is a violation of International law!
As a consequence the Council of the EU should discard Protocol (no24) immediately. The European Commission, the European Ombudsman and the European Parliament are called upon to support this request. Of course, an application for asylum of an EU citizen will (hopefully) always be an extraordinary, special case. Therefore it may need a special procedure and also special consequences. Instead of forcing member states to ignore their international obligations asylum applications of EU citizens (and permanent residents) should be dealt with at EU level, e.g. by the Commissioner for Justice and Home Affairs or even better by an independent body or committee and when they are well founded asylum should be granted for the whole EU territory. But in such cases the Commission should automatically open an investigation of the situation in the country the applicant is coming from in order to avoid similar cases for the future. Such a procedure would be appropriate for the “area of freedom, security and justice, founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and the respect for human rights”.
First published by www.moderndiplomacy.eu
H.E. DR. WALTER SCHWIMMER
Vice Chair of the MD’s Advisory Board
Former Secretary General of the Council of Europe
Chairman of the International Coordinating Committee of the World Public Forum – Dialogue of Civilizations