Conflicting Principles and priorities in EU

Part one

It is a fact the EU is an evolving entity, in a continuous process of expansion and adaptation to various challenges, both internal and external.

The fact that, in time, EU has come in integrate various European states into the organization, has brought upon it the challenge of integration, so that these new states (mostly east European countries), might in time accede to the standards and principles that founded and regulate the life of the EU.

This also means that judiciary system that were vastly different had to be made to come together, and the effort to convince new member states to rise to expectation is still ongoing. The fact that this is not yet an accomplished thing leads to situation when abuses and interference with those principle and legal guidelines that regulate the EU are made possible, and sometimes the means to detect and prevent such abuse are scarce, or, worse, ignored.

One such problematic issue is the situation that arises when different EU member states take vastly different positions on issues that seem to fall under two different: the status of the political refugees within EU and the European understandings regarding the processes of extradition. When both positions have to be taken into consideration with regard to a single instance, conflicts arise.

The Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States aimed to expedite and facilitate the cooperation between European Union member states regarding fugitives and convicts that are evading punishments in their country of origin. As such, it is an instrument to ease the capture and extradition of convicted criminals in EU member states, regardless of their location in the EU.

On the other hand, we have the fundamental Geneva Convention relating to the Status of refugees that sets out the rights of individuals who are granted asylum.  This convention defines the refugee as follows: "A person who owing to a 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 and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.."

The convention also states the refugee’s right to be protected against forcible return, or refulgent.

The principle of non-refoulement

The purpose of the Convention is to assure protection to refugees, as defined in the Convention, by ensuring that they are not returned to their country or sent to any other territory where they could face persecution. Article 33 puts forward what has become known as the principle of non-refoulement: ‘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’. This protection does not apply however to persons who represent a security threat to their host country (Article 33(2)). The Geneva Convention does not exclude removal of asylum-seekers to safe third countries. Asylum-seekers unlawfully present in a state can be required to seek protection in another country, but those lawfully present cannot be expelled from its territory (Article 32).

This principle has become part of other international human rights treaties either explicitly (Convention against Torture, Article 3) or implicitly through the relevant jurisprudence (European Convention on Human Rights, Article 3 and International Covenant on Civil and Political Rights, Article 7) and, according to some scholars, also part of customary international law, making it universally binding. While in the Refugee Convention, the scope of the non-refoulement principle is limited to refugees, and exceptions to it (for reasons of national security) are permitted, these limitations do not exist in the other three treaties. States signatories of these international treaties are thus obliged not to return to their countries persons who may face torture or cruel, inhuman or degrading treatment or punishment. They are however not entitled to any other rights provided under the Refugee Convention since they are not refugees within its scope.

Even States that are not party to the 1951 Refugee Convention must respect the principle of non-refoulement. Therefore, States are obligated under the Convention and under customary international law to respect the principle of non-refoulement.

Here therefore lies the issue: What should European member states do when confronted with the request for extradition of a person that is granted the refugee status by a member country?

As example, on 1 January 2007, Romania joined the European Union. As a member country, it is now part of all the conventions agreed upon by the EU, and enjoy all its rights.

But does the fact that Romania joined the EU means that, all of a sudden, all the decisions of the Romanian courts are indeed just and unbiased? Are all those processes fair and impartial trials? Is the Romanian judiciary system a spotless example for the rest of the EU countries?

As a matter of fact, quite the contrary. Beside Bulgaria, Romania was deemed be the scrutinizing committees of the EU as the country with the most corrupt political and judiciary system in the EU!

It seems that since its ascension to the EU, Romania has not demonstrating convincingly that it can indeed protect the rights of its citizens and can avoid external influences (be those political, religious or of other kinds) into its courts and tribunals.

In fact, we may say that, obviously, every political refugee is a convict (or regarded as a convict) by the country he fled, and it protected, from. The fact that such a refugee ends up being convicted by the offending state does not suspend its status as refugee; does not make automatically a bona fide criminal.

Such a result only validates the decision of the ones that granted him refugee’s status. It shows that the decision indeed help to protect him from abusive treatments and actions that threaten his life.

If that person is granted the refugee status because it is persecuted in its country of origin, or if there are founded motives to believe that he will not benefit from a fair trial in its country, and then that country emits an European arrest warrant, one has to ask: which bears more weight in the evaluation of fundamental principles regarding human rights and the rule of law on the territory of the EU?

Clearly some clarification are needed, for otherwise the European union risks being perceived as only a formal protector of human rights, a façade that, in fact, hides behind it abusive judicial systems that are keen to continue to persecute its citizens under the mask of a reformed, democratic system.