05 October 2014 Published in Law Written by  Elvis Shakjiri

Roma "victims" of the visa liberalization

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The aim of this paper is to show that the Macedonian Roma are unlawfully not allowed to leave Macedonian borders and they are subject to discriminatory practices and limitation of their rights. Macedonian authorities have to find a proper solution of the problem with the asylum seekers that does not confront the basic human rights and dignity.

The research paper is organized in four sections: Firstly, I am presenting the factual background of the situation in Macedonia regarding the visa-liberalization and the measures taken by the Macedonian government and the European Union. Secondly, I write about the freedom of movement, the concept, legal frame (national and international), state obligations and the violations that are done towards Roma. In the next part I analyze the asylum seekers from international perspective and the usage of the term fake-asylum seekers. In the last part I describe the concept and the negative aspects of ethnic profiling and discrimination in Macedonian borders (including national and international legal frames).

           

Factual Background

Starting from 19 December 2009,[1] Macedonian citizens are allowed to travel without visa in the 25 EU counties. According to the decision the citizens who possess biometric passport can travel without visa. Their stay should not exceed 90 days within the period of 180 days counting from the date of first entry. With the beginning of visa liberalization the first cases of asylum seeking began in the countries of EU mostly in Sweden and Belgium. The Prime Minister of Belgium and the State Secretary for Migration of Sweden stated that their countries are faced with a high number of asylum seekers from Macedonia.

In the recent period we have witnessed of the frequent cases, when Roma have not been allowed to leave the country.  The Balkan countries were pushed several times by EU to take measures in order to prevent the wave of asylum seekers. The Macedonian government started to make campaigns in Roma settlements explaining that they do not have chances to get asylum because Macedonia is considered as a country of safe origin. Shortly after this the ambassadors started to visit Roma settlements but the number of asylum seekers has not decreased. At the end Macedonian government decided to take repressive measures for those who will transport the “potential” asylum seekers.

The Belgium Prime minister in one of the visits in Macedonia said “My country does not give political asylum to economic refugees, so there is no sense in traveling to Belgium from Macedonia for the purpose of seeking political refugee status”.[2]

In 2007 the Macedonian Parliament adopted several amendments to the law of travel documents which were again amended in 2008. This law created the conditions for issuance of the new biometric passports, which started in 2007.

Firstly the Act for Travel documents was completed with a new Article to provide a reason for denying the request to issue a passport and visa cancelation. The Article 36 states that “the person who is forcibly returned or expelled from another state for conduct contrary to the regulations can be denied for issuing a passport or visa”.

After that the government changed the criminal law. They added a new Article 418, which states that those who abuse the visa regime with the member states of the European Union for acquisition or achieving of social, economic or other rights, contrary to European Union, law will be charged with a sentence of minimum four years.  After all these changing of the Laws it was obvious that the state will begin ethnic profiling and not allowing Roma to leave the state because they were potential asylum seekers.

The Roma NGO ARKA documented all these cases but none of them was reported in the relevant institutions. The Roma MP Samka Ibraimoski in 2012 submitted an initiative to the Constitutional Court that the country violates the right for freedom, but the Constitutional Court did not make any decision about this. The ombudsman claimed that even though many Roma claim that they were not allowed to leave the country, no one submitted a complaint to this institution so they cannot start a procedure without any evidence.

Macedonian authorities reacted promptly creating a monitoring committee for implementation of the visa liberalization.

In one of the first actions, “two travel companies were closed over irregularities in their management”.[3] In May 2011, “the Macedonian authorities announced a series of new measures aimed at “suppressing the ongoing trend of asylum seeking”.[4] To the European Commision was submitted a document which distinguishes some measures such as: preventive, operative and general. “”Among the general measures is the strengthening of inter-institutional cooperation and cooperation with EU member states. The “preventive measures” include so called socio-economic measures aimed to improve the living conditions of vulnerable groups, and awareness raising. The “operative” or, better, repressive measures are not described with the same detail. They include enhanced border controls and investigations into a possible involvement of travel agencies in the increase of the number of asylum applications filed by Macedonian nationals.””[5]

This factual background leads to at least three problems in terms of human rights: freedom of movement, ethnic profiling (discrimination) and asylum seekers.

 

Freedom of movement  

Freedom of movement, i.e. the right to leave one’s country of nationality, is recognized as a human right by the most international human rights bodies and conventions such as: the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the European Convention of Human Rights. The right for freedom of movement is incorporated in the domestic law highest legal act, in the, the Constitution of the Republic of Macedonia.

The European Court of Human Rights in the judgment Baumann v. France[6] “has recognized that the of movement as set out in Article 2 (1) and to of Protocol No.4 is meant to guarantee a person’s right to liberty of movement within a territory and to leave that territory, implying a right to leave for a country of persons choice as long as he or she is admitted in the country”. On the same judgment the Court in paragraph 36 noted that “Therefore, any measures that infringes this right or restricts its exercise will be prohibited unless it is considered “necessary in a democratic society” in the pursuit of the legitimate aims listed in Article 2 (3) of Protocol No.4”.[7] It is stated in the same paragraph that if the person is denied to use his identity document that would have permitted to leave the country, than his or her rights of freedom of movement are violated.

In the Macedonian Constitution the right of freedom of movement is recognized in Article 27 “Every citizen of the Republic of Macedonia has the right of free movement on the territory of the Republic and freely to choose his/her place of residence. Every citizen has the right to leave the territory of the Republic and to return to the Republic. The exercise of these rights may be restricted by law only in cases where it is necessary for the protection of the security of the Republic, criminal investigation or protection of people’s health”.[8]

As we could read from the previous paragraph the European Court noted that the freedom of movement can be restricted in cases that are “necessary in democratic society”, which according to our Constitution those possible grounds are: protection of the security of the Republic, criminal investigation or protection of people’s health.

The legitimate aim for restricting the right of freedom of movement used by the Minister of Interior is that these people are “harming the national and foreign relations”.[9]

On 29 December 2010, the Macedonian Parliament adopted a new Law on Border Surveillance taking some elements of the Shengen Borders Code and implementing on the domestic law. This concerns “among others the distinction between “minimum”, which concern Macedonian citizens as well as every person enjoying “the Community right of freedom of movement” and “detailed checks” which concern third country nationals along with the introduction of entry and exit criteria”.[10] Article 15 of this law “conveys the Macedonian border police extensive powers to control persons entering or exiting Macedonia. Under paragraph 4 of this article, they are entitled to conduct random checks on passengers aimed to determine that they do not pose any threats to the public, national security, public policy, international relations or public health”.[11]

This paragraph has been used to legitimate the issuance of travel bans against Macedonian nationals who were suspected to have the intention to apply for asylum in the EU. As Minister Jankulovska “explained in her reply to an oral question of an opposition MP, in December 2011, these persons are considered to harm national interests”.[12]

“ … if there are indications that a citizen has the intention to travel to a Member State of the European Union with the purpose of abusing the right to asylum, he cannot be allowed to leave Macedonia, everything is regulated by the Law on Border Surveillance, which was adopted by this Assembly (...), (...) read article 15 paragraph 4 of this specific law.”[13]

The European Roma Rights Center in 2013 conducted a research documenting 74 cases from Roma who were prevented to leave the country as well 24 case from Roma whose passports were confiscated by the police officials. In their research they found that “90 % of Roma were asked to justify their reasons for traveling, 30 % were told explicitly by the border officials that they cannot pass the border due to their ethnicity, 10 % were refused because of not fulfilling the legal requirements to leave Macedonia (requirements that ERRC found that were unlawful)”.[14]

According to the summary prepared by the Office of the High Commissioner for Human Rights “the CoE referred to the CoE-Commissioner’s concerns relating to measures to control emigration. Between 2009, when visa-free travel was granted to EU member states, and 2012, about 7,000 citizens, mainly Roma, were not allowed to leave the country and had their travel documents confiscated. Such measures interfered with the internationally established right to leave a country and undermine the right to seek asylum”.[15] The Council noted that leaving the country is indicator of the lack in guaranteeing the economic and social rights of Roma. Moreover the Council is concerned that many Roma were not allowed to exit the country to visit their family members in the neighboring non-EU countries.

The Schengen agreement in Article 13 states the conditions for refusal of entry in the EU countries. We can conclude that this Article applies for those countries that are neighboring with EU country. In this case they can apply this rule between the Serbian and the Hungarian border. Macedonia does not have the right to apply this Article at the Macedonian and Serbian border because they are not EU countries. It is important here to mention that Macedonia and Serbia have an agreement that the citizens from both countries can travel from one country to another country with personal ID (without passport). But there were cases when Roma tried to pass the border with ID and they were repeatedly sent back. In some cases the border police were putting two lines in the passport of Roma and wrote with two letters “AZ” (asylum).[16] The Roma whose passports were marked were also criminally prosecuted by the Ministry of Interior.

 

Ethnic profiling

There is no internationally agreed definition of ethnic profiling,  “but it is generally interpreted to mean the police practice of stopping someone for questioning or searching on the basis of their ethnic ‘racial’ appearance and not because of their behavior or because they match an individual suspect description.”[17] The ethnic profiling is used by police officers deciding whom to stop, search, questioning and asking for identity papers. Ethnic profiling may be result of police officers who are racist or when they are instructed by the head of the police (subordination as in the case of Macedonia ordered by the Minister of Interior).

Ethnic profiling constitutes discrimination and moreover violates the basic human rights. By relying on ethnic, racial, or religious stereotypes, “ethnic profiling breaches one of the most fundamental principles of law – that each person must be treated as an individual, not as a member of a group”.[18] 

The ECHR in Article 14 prohibits discrimination on any ground and guarantees the full and equal enjoyment of the rights.   There are also two provisions for non-discrimination that provide means of implementations in the (ICCPR, 1966) and (ICESCR, 1996). The clause on non-discrimination is found in Article 26 of the ICCPR: “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.[19] Additional body of UN for equal rights jurisprudence is the “CEDAW” convention.

Prevention of discrimination is described as prevention of any action that denies to groups or individuals the equal treatment that they wish to achieve. In the General Comment of the Human rights committee discrimination is understood “to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on equal footing, of all rights and freedoms”.[20]       We can conclude from this definition that discrimination has to contain some elements such as: difference in treatment, has a certain effect and is based on some prohibited ground.

Macedonia is obliged to respect and fulfill these rights because it is part of the signatories of the ICCPR Convention, but moreover non-discrimination clause is found in the Constitution of Macedonian and in the Law for anti-discrimination.

In the Macedonian case many Roma asked for asylum in the European countries but it does not mean that every Roma who wants to leave the country would ask for asylum. At the border the police officers are making ethnic profiling just towards Roma interrogating them and asking from them additional documents in order to prove their intention of traveling. Roma travelers in Macedonian border are not treated as individuals but rather as members of a certain ethnic group. The European Court of Human Rights stated that “Profiling constitutes unlawful discrimination and it perpetuates and reinforces discriminatory attitudes and behavior of xenophobia”.[21] The European Law also proclaims that “border guards shall not discriminate against persons on grounds of sex, racial or ethnic origin, religion of belief, disability, age or sexual orientation”.[22] Ethnic profiling has some negative aspects on the person who is stopped at the border because of his ethnicity and moreover there are harmful effects when ethnic profiling repeatedly occurs for four years in the Macedonian border. Negative aspects are described as “frightening, humiliating or even traumatic practice”.[23] Since the ethnic profiling occurred in the Macedonian border the relation and trust between Roma community and the police decreased.

This kind of measures towards Roma is against the recommendation of the European Parliament to the Council of Europe regarding the ethnic profiling

“Whereas unjustified travel restrictions and intrusive control practices could negatively affect vital economic, scientific, cultural and social exchanges with third countries; accordingly, underlines the importance of minimizing the risk of certain groups, communities or nationalities being subject to discriminatory practices or measures that cannot be objectively justified” (H).[24]

The Article 6 of the Schengen agreement which refers to conduct of border checks states that “while carrying out border checks, border guards shall not discriminate against persons on grounds of sex, racial or ethnic origin, religion of belief, disability, age or sexual orientation”.[25]

The damage caused by ethnic profiling is immense, and goes far beyond the individuals who experience stop and search to impact negatively on their families and friends who, as a result, develop distrust in policing practices.

In one case reported by ERRC a man claimed “I have nothing against (these measures), but it is absurd to be returned, because you have different name and skin color. And it is even more absurd, because my destination was Belgrade, Serbia, which is not even a member of the EU”.[26]

 

Asylum seekers

In 1951 the Refugee Convention was adopted in order to define who is a refugee and what are their rights and the obligations of the states. The Convention defines refugee as “someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for a reasons of race, religion, nationality, membership of a particular social group, or political opinion”.[27]

The Universal Declaration of Human Rights in Article 14 recognizes the right of seeking and enjoying in other countries the right of asylum. 

Gammeltoft Hansen in the European Journal of Migration and Law[28] argues that “the right to seek” is equal to (the right to an asylum process) that is maintained and established in Article 14 of the Declaration. He also argues that UDHR is a declaration and not a Convention; therefore it cannot be binding as such. For these reasons this Article was established in the UN Refugee Convention from 1951.

Proffesor Lautherpacht describes the phraseology in Article 14 as “artificial to the point of flippancy”[29], and he says that the declaration will at least “call for appropriate and effective procedures for seeking asylum”.[30]

The “right to enjoy” asylum is interpreted by British delegate as “the right of every state to offer refuge and to resist all demands from extradition”.[31]

Macedonia is considered as a “safe country of origin” by some EU countries[32] meaning that Macedonia does not normally produce refugees, therefore all applications for asylum should be processed faster. This is done with aim Roma not to enjoy the welfare for a long period. I argue that this is wrong because the countries that accept asylum seekers must proceed each case individually and not as a group. Even though Macedonia is safe country of origin they have to take into consideration that Roma are the most marginalized and discriminated group in Macedonia, and they are with high risk to be evicted by their homes. Macedonia in 2001 was faced with war (ethnic conflict) between Macedonians and Albanians. Most of the Roma took part in the Macedonian army they stood against Albanians, and half of the Roma population live with Albanians in the western part of the country. After finishing the war many Roma could not come back in these cities where predominantly Albanians live, Roma are seen as their enemies.

The Minister of Interior in Macedonia in her speech in the Parliament said that “those who are suspected to be so called false asylum seekers would not only be refused to exit the country, but also their passport will be stamped”.[33] These stamps will be put in order to be easier for the police officers in the border to recognize and to prevent them from “abusing the visa liberalization and damaging Macedonia’s image”.[34] Additionally the country introduced new measures such as deprivation of their passport for one year against the “fake asylum seekers” who are forcibly returned from Macedonia after not succeeding to get the asylum in another country.

We can conclude that Macedonian government illegally takes the passport of the persons who are returned from other countries because they did not succeed to get asylum or as the Macedonian government defines them as “fake asylum seekers”. There is one argument that supports my statement for the illegal actions and the illegitimate use of “fake asylum” by the Government.

The foreign Secretary General of UN Kofi Annan claims that “there is no such thing as a bogus/fake asylum seeker. Everybody has a right to seek asylum in another country. People who do not qualify for protection as refugees will not receive refugee and may be deported, but just because someone does not receive refugee status does not mean they are bogus/fake asylum seekers”. Moreover Annan claims “let us remember that a bogus/fake asylum-seeker is not equivalent to a criminal; and that an unsuccessful asylum application is not equivalent to a bogus/fake one”.[35]

Macedonian craziness went far beyond adopting an amendment to the criminal code. Article 418-e of the Macedonian Penal code: Abuse of the visa- free regime with the member states of the European Union and of the Schengen Agreement:

“Whosoever recruits, instigates, organizes, shelters or transports persons to a member state of the European Union or of the Schengen Agreement in order to acquire or exercise social, economic or other rights, contrary to the law of the European Union, to the regulations of the member states of the European Union and of the Schengen Agreement and to the international law shall be sentenced to minimum four years of imprisonment.”[36]

Introducing this law aimed to punish the travel agencies who transport “potential asylum seekers”, but how these agencies would know who of the passengers would ask asylum in the foreign country? There were few travel companies who were closed down because they were suspected to transport asylum seekers.

 

Conclusion

The former Human Rights Commissioner, Thomas Hammaberg, in its comment[37] wrote that Roma are denied to leave the country on the simple assumption that they are “potential asylum seekers”. This kind of actions by the Government led to further stigmatization towards Roma, calling EU to avoid any discriminatory treatment of those who seek asylum. Moreover Thomas claims that “The increase in asylum applications in some countries is a symptom rather than the core problem. It represents another sign that Europe has failed to break the cycle of anti-Gypsyism, discrimination and marginalization of Roma populations. It should be seen as a reminder that serious action is overdue”.[38]

Macedonian Government introduced and uses unlawful measures against the Roma minority such as: ethnic profiling in the borders, penalties for those who were returned back from the foreign countries (taking passports, fines), strengthening the exit controls in the borders.

The country including the media helped increasing the stigma over Roma people who want to escape the bad social difficulties and discrimination in the country. Strengthening the exit controls with the aim to stop the “potential asylum seekers” is against the recognized right for freedom of movement and to seek an asylum.

As I mentioned in the paper the Schengen entry conditions are matter of the countries that are part of the European Union, and they cannot transfer these conditions to the third countries such as Macedonia (Balkan countries who were granted with visa liberalization).

At the end I would like to conclude that European Union should not push Macedonian authorities to go against their laws and putting Roma minority in conflict with Macedonian country because it violates their human rights. I think that this is done by the European Union with only reason that they do not want to accept and to confront that Roma are faced by poverty and discrimination.

The analysis is copyrighted, unauthorized publishing, text reproduction, distribution, and text copy is prohibited without prior consent by the author.


[1] Council of the European Union, Brussels 30.11.2009.

http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/jha/111561.pdf (last access 09.06.2014).

[2] Belgian PM Yves Leterme in Official Visit to Skopje, 08.03.2010 (last access 09.06.2014).

http://romarights.files.wordpress.com/2012/07/chachipe_visa_liberalisation_report_270612.pdf

[3] Belgium PM to Take on Balkans Asylum  Issue, Balkan Insight, 08.03.2010 (last access 09.06.2014).

http://romarights.files.wordpress.com/2012/07/chachipe_visa_liberalisation_report_270612.pdf

[4] Ministry of Foreign affairs/ Measures and activities of the Government of the RM.

[5] Chacipe, Selective Freedoms, The visa liberalization and restrictions on the right to travel in the Balkans, page 34, 2011. (last access 06.09.2014).

[6] Application no. 33592/96, ECtHR, Judgment of 22 May, 2001, at para 61.

[7]OSJI, International Standards on Ethnic Profiling: Standards and Decisions from the European system, page 25, 2013.

[8] Constitution of Republic of Macedonia, 17 November 1991, effective 20 November 1991. Two amendments were added on 6 January 1992.

[9] Chacipe, Selective Freedoms, The visa liberalization and restrictions on the right to travel in the Balkans, page 33, 2011. (last access 06.09.2014). http://romarights.files.wordpress.com/2012/07/chachipe_visa_liberalisation_report_270612.pdf

[10] Ibid, Article 15 and 16.

[11] Article 15, Law on border Surveillance, Official Gazette of the Republic of Macedonia, Nr.171/10, 30.02.10.

[12] Ibid.

[13] http://romarights.files.wordpress.com/2012/07/chachipe_visa_liberalisation_report_270612.pdf (last access 06.09.2014).

[14] Research by ERRC, 26.04.2014. (last access 06.06.2014).
http://www.errc.org/article/errc-challenges-discrimination-of-roma-at-the-border-before-the-constitutional-court-of-macedonia/4248

[15] CoE, p. 6. See also CoE-Commissioner, pp. 23-25.

[16] http://romalitico.files.wordpress.com/2013/11/azil2-e1383648991504.png (last access 09.06.2014).

[17] Ehtnic profiling, criminal justice and minority populations, Dr. Jo Goodley, page 1.

[18] Open Justice Initiative, Ethnic profiling in the EU, page 1, 2009.

http://www.opensocietyfoundations.org/sites/default/files/profiling_20090526.pdf

[19] UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171, available at: http://www.refworld.org/docid/3ae6b3aa0.html [accessed 9 June 2014].

[20] Human Rights Committee, General Comment No.18.

[21] Human Rights Digests: European Standards on Ethnic profiling page 4.

[22] Regulation (EC) No. 562/2006 of the European Parliament and of the Council of March 15, 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code), Article 6 (2).

[23] R.T. Shuford, “Civil Rights in the Next Millennium: Any Way You Slice It: Why Racial Profiling Is Wrong,” St. Louis University Public Law Review 18 (1999): 371–385, at 373.

[24] European Parliament, P6_TA (2009)0314 (H).

[25] Schengen agreement, Article 6, paragraph 3.

[26] Chacipe, Selective Freedoms, The visa liberalization and restrictions on the right to travel in the Balkans, page 41, 2011. (last access 06.09.2014). http://romarights.files.wordpress.com/2012/07/chachipe_visa_liberalisation_report_270612.pdf

[27] Text of the 1951 Convention relating to the status of refugees, Resolution 2198 (XXI) adopted by United Nations General Asembly, A (2).

[28] Thomas Gammeltoft, European Journal of Migration and law (10), page 441, 2008.

[29] Lauterpacht, The Universal Declaration of Human Rights, 25 Brit. Y.B Int’L, L 354, 374 (1948).

[30] Ibid.

[31] Philip L. Martin, Equal Rights Amendment, Vol 17, page 27, 1973.

[32] Tanjug.Tacno, 30.04.2014.
 http://www.tanjug.rs/news/127363/german-government-declares-serbia-safe-country-of-origin.htm (last access 09.06.2014)

[33] Chacipe, Selective Freedoms, The visa liberalization and restrictions on the right to travel in the Balkans, page 36, 2011. (last access 06.09.2014). http://romarights.files.wordpress.com/2012/07/chachipe_visa_liberalisation_report_270612.pdf

[34] Ibid.

[35] UNHCR, “The facts, Asylum in the UK, 2013”. (last access 07.06.2014)
 http://www.unhcr.org.uk/about-us/the-uk-and-asylum.html

[36] Official Gazette of the Republic of Macedonia, Nr. 135/11, 3.10.11, p. 15. Article 418-e

[37] The Council of Europe Commissioner’s, Human rights comment, 22.11.2011.

http://commissioner.cws.coe.int/tiki-view_blog_post.php?postId=193 (last access 09.06.2014).

[38] Thomas Hammarberg: The right to leave one’s country should be applied without discrimination, Human Rights

Comment, 22.11.11 (last access 07.06.2014).
http://commissioner.cws.coe.int/tiki-view_blog_post.php?postId=193

 

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