Prieglobstis ir terorizmas: pabėgėlių teisių apsaugos problemos kovojant su terorizmu

Abstract

The Article deals with the main aspects of interrelationship between the two topics, on the outlook different in nature and legal regulation, namely:
- the way that measures of fight against terrorism and its prevention influence the regime of refugee protection,
- the legal means implied for states in the refugee protection documents to ensure that asylum is not misused by terrorists.
States have adopted a number of measures aiming to deal with a threat of terrorism or rather to prevent it. For instance, more and more asylum seekers are being detained indefinitely, on vague grounds and without adequate procedural safeguards. Also, states adopt measures restricting access of certain asylum seekers to the state territory or asylum procedures. There is a growing concern that some measures dealing with terrorism have a negative impact on protection of refugees, in particular influencing the compliance of states with their obligations under the principle of non-refoulement. The author presents an overview of evaluation of such state practice by international and regional human rights defense bodies.
The Working Document of the European Commission, adopted on 5 December 2001 acknowledged that automatic bars to accessing asylum procedure might, even for suspected criminals contravene the principle of non-refoulement. On the other hand, the document suggested the states to limit themselves to examination of exclusion clauses when it is prima facie established that someone falls under them. Such a position has been later reflected in certain EU documents (e.g. Proposal for a Council Directive on minimum standards on procedures in Member States for granting and withdrawing refugee status, which was revised in 2002) and is not in line with international standards of refugee status determination. The later require exclusion clauses to be applied only after ascertaining that someone is a refugee.
It is not infrequent that the 1951 Geneva Convention Relating to the Status of Refugees is criticized as being outdated and failing to respond to contemporary challenges of the world. To rebut such an understanding, the author therefore presents the analysis of certain Convention provisions, which provide an adequate response to some of these concerns. In this connection, the applicability to terrorist activities of refugee status exclusion clauses contained in the Article 1(F) of the Convention, as well as provisions on exceptions to protection against refoulement and expulsion, contained in the Articles 32 and 33(2) of the Convention are analyzed.
Though terrorism as such is not mentioned in the Article 1(F) of the 1951 Convention, depending on the circumstances may be considered falling under any of the categories of crimes listed in this article. The analysis in the article deals with the question, a matter of discussion for academicians and practitioners for already some time: can terrorists avoid the application of the Article 1(F) of the 1951 Convention by claiming political motives of their criminal acts? Little doubt remains today that terrorist activities fall under the category of serious non-political crimes. To illustrate, the practice of rejecting political motives in certain jurisdictions is presented in the article. The practice of terrorism has been explicitly recognized as being contrary to the principles and purposes of the United Nations. However, there is still no widely accepted state practice whereby the Article 1(F) of the Convention would be applicable to ordinary individuals, not holding significant positions.
The author concludes that the 1951 Convention provides sufficient guarantees to ensure that persons suspected or having committed terrorist acts are either screened out during the refugee status determination procedure or do not enjoy the protection against expulsion, if their criminal acts come to light or are being committed following the recognition as refugee. Nevertheless, it should be born in mind that any restrictions applied on the basis of the Convention, which is primarily a human rights and not criminal law instrument, should be applied narrowly, only as a last resort and be compatible with the object and purpose of the Convention.
Besides the analysis of refugee protection documents, application of other human rights instruments to persons who have committed or are suspected in having committed terrorist activities is touched upon in the article. The author contends that even though the Articles 32(1) and 33(2) of the 1951 Convention allow for expulsion of those who have committed terrorist acts, the prohibition of expulsion to the country where there is a risk of torture for such individual is absolute. This has been extensively confirmed in the jurisprudence of the European Human Rights Court.