Thursday, 10 August 2006

Brief Comment on Draft Law on Amendments to Refugee Law




“What was born wretched gets no improvement over time.”
Valtazar Bogisic

The Refugee Law (hereinafter: the Law), as well as a draft Law on Amendments to the Refugee Law (the Amendments), contain a number of essential flaws, rendering inappropriate the attempted link between the title(s) and the regulated matter, and making them incompatible with the entire domestic and international legislation. 

Contrary to the 1951 Convention Relating to the Status of Refugees with the 1967 Protocol on the Status of Refugees, binding for Serbia, the Article 1 of the Amendments (to the same Article of the Law) maintains the incomplete definition of the term “refugee”, with additional deficient alterations. The target group is still defined in a slightly discriminatory manner (“Serbs and citizens of other ethnicities”) as a certain category within the entire refugee population (referring to the internationally recognized meaning of that term), the category that emerged from the precisely defined time and geographical area (“period 1991-1998… from the former Yugoslav republics”). This kind of temporal and geographical limitation in determining the refugee status was eliminated by the mentioned Protocol, and it is absolutely unacceptable as a criterion for defining a refugee in the legislations of the Protocol signatories.

Despite the inappropriately chosen name of the Refugee Law, the legislator has undoubtedly intended to regulate the issue of the so-called “post-Dayton” refugees promptly and as efficiently as possible, by adopting such a lex specialis. However, we can not ignore the fact that these parts of the Law and the draft Amendments, as domestic legislation, contravene the ratified international agreements and the clear obligation of Serbia to implement them. In cases of collision, the applicable international law prevails over domestic law, so that the effect of the most important part of the Law and the Amendments, definition of the target group, is at least theoretically predisposed to remain without effect. The term “refugee”, in present circumstances, needs to be consistently defined according to the accepted international standards.

The Amendments seem to be significantly more restrictive in the parts related to the access to rights for refugees, i. e. duties/obligations of the competent bodies that ought to make those rights available. For example, the Article 6 of the Amendments (to the Article 8 of the Law) introduces the optional approach to the provision of temporary accommodation and aid for the refugees in collective centers. Introducing such a loose structure as “may be provided” when defining the activities performed by the competent state bodies with the aim to assist refugees, opens the possibility of official and lawful neglect of a significant number of vulnerable persons. Furthermore, the Article 14 of the Amendments (to the Article 16 of the Law) introduces more restrictive approach to providing financial and other forms of aid to refugees by reducing or terminating the assistance if one of the conditions for assisting a refugee and/or one of his/her family members is not fulfilled. While the suggested solution has somewhat legitimate aim, the problem is a wide definition of a refugee’s household member. Having in mind the existential importance of the assistance, the formal requirements related to the wide family members, in practice, could result in negative consequences. Although the restrictive approach may be well-founded, it is necessary to reduce a number of persons directly influencing the provision of assistance, limiting them only to the refugee’s nucleus family members.

The draft Amendments have not tackled the important Article 18 of the Law related to the termination of the rights determined by the Law (refugee status), although it contravenes entirely to the clear provisions of the Convention and that major problems have been identified during its implementation. This refers, inter alia, to the practice of patterned termination of the refugee status (both before first and second instances) in the course of 2005, based on unjustified allegations that a refugee has not reported certain changes of the status significantly influencing the exercising of the rights; for example, alleging that a person has returned (even without the intention of staying permanently) to the country of origin. Bearing in mind the shortcomings of this and other related Articles, it would be necessary to establish unambiguous criteria for the refugee status termination in accordance with the Convention and without the possibility of unlimited discretion right.

The Article 15 of the Amendments (to the Article 19 of the Law) does not coincide with the fundamental purpose of the refugee law. This Article stipulates the regulation of housing needs for “refugee(s) and their household members who have acquired the citizenship of the Republic of Serbia for the purpose of their integration [italic added]”. Given that the refugee status, in accordance with the existing principles of the refugee law, ceases by acquiring new citizenship, the sustainability of dual status (refugees with citizenship) and preferential treatment of a certain group of citizens of the Republic of Serbia raise doubts. Establishing prima facie general presumption on the need of positive discrimination for the entire category of citizens of Serbia and/or their family members in relation to other socially vulnerable citizens might become risky in practice. The same objective could be reached by adopting a separate law with more appropriate contents and title. Such a law could offer to refugees more favourable solution in respect to “the immovable property gained with the purpose of solving housing needs of refugees from… donations”, unlike the present, inadequately formulated Article 16 of the Amendments stipulating the uncompromising primacy of the state ownership of the property and the forms of further use/transfer of the right.

The Amendments do not concur with the purpose of the original Law and maintain its shortcomings. Therefore, the idea of “amending” the out-of-date Refugee Law should be discarded, thus avoiding the waste of time and resources. Adopting new laws that would adequately regulate the issues of concern, especially the detailed Law on Asylum and another law on social housing, would be the only reasonable approach to the whole matter and the ground for its successful regulation.




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