PROTECTING REFUGEES

Turkey retains a geographic limitation to its ratification of the 1951 U.N. Convention on the Status of Refugees ("Refugee Convention"), which means that only those fleeing as a consequence of "events occurring in Europe"54 can be given refugee status. Regardless of any geographical limitation under the Refugee Convention, Turkey must still abide by the principle of non-refoulement (that no one may be returned to a country in which he may face persecution), which is binding in all cases.55 The non-refoulement obligation is one of the few articles in the Refugee convention towhich reservations cannot be made.56 Furthermore, Turkey is party to other human rights instruments which also prohibit refoulement of persons to countries where they are at risk of torture, cruel, inhuman or degrading treatment.

For more than a decade, the United Nations High Commissioner for Refugees (UNHCR) conducted refugee status determination of non-Europeans (mostly Iranians and Iraqis) independent of the government. UNHCR attempted to resettle in third countries those whom it determined to be refugees.

In November 1994, Turkey passed regulations on the treatment of asylum seekers. The regulations give the Turkish government the task of status determination of non-Europeans and lay down procedures to determine this status in accordance with the refugee definition in the Refugee Convention. Those who pass the test are referred to UNHCR for resettlement to a third country. The system as it currently stands is extremely hazardous for non-European refugees and various stages of the process put them at risk of refoulement.
First, asylum seekers who fail to access the procedures because they are apprehended at the borders and summarily deported are still at profound risk. Turkish officials on the Iran border have the discretion to summarily send back any foreigner apprehended in the two-kilometer zone separating Iran and Turkey.57 Of the tens of thousands of illegal aliens apprehended inside Turkey in recent years none was reported to have been apprised of their right to seek asylum in Turkey prior to expulsion. Recently arrived asylum seekers have been ill-treated in police custody, or even killed by security forces as they tried to cross the border.
Second, the 1994 regulations impose a number of preconditions for filing asylum applications, which are in practice difficult and sometimes impossible for asylum seekers to meet. These include time limits of a few days for registration, and presentation of valid identity documents. Applicants who do not meet the preconditions are liable to deportation. Since 1995, at least 570 such Iranian and Iraqi applicants in the process of being considered or recognized as refugees by UNHCR have been forcibly returned.58 In July 2000, the European Court of Human Rights condemned Turkey for attempting to deport an Iranian refugee without examining the merits of her asylum claim on the ground that she had failed to register with the police within five days of her arrival.59 UNHCR has indicated that this problem has been temporarily brought under control through the Turkish authorities' "regularization" of asylum seekers who entered the country illegally and failed to meet the preconditions, but who were subsequently recognized as refugees by UNHCR or are under consideration by UNHCR for refugee status.

Non-refoulement also requires that the host country institute effective procedures for determining which asylum applicants are entitled to protection. The Turkish government's system for examining asylum applications does not contain the minimum safeguards required by international law for fair and accurate refugee determination. Local police officers record the substance of claims with the assistance of interpreters who are often incompetent, and case decisions are made by officials of Interior and Foreign Affairs' Ministries who lack expertise and independence. There are no provisions for oral hearings or legal assistance. Applicants are not provided with a written notification of the reasons for their denial and appeal rights are ineffective or inaccessible.

Moreover if, at the end of this unsatisfactory process, an applicant is recognized by the Turkish authorities to fit the Convention's definition of refugee, they will not be classified as a refugee, but only as an "asylum-seeker." "Asylum seeker" status does not carry a guarantee against refoulement, but only qualification for a temporary residence permit so that the person can submit his or her case for consideration by UNHCR with a view to resettlement in another country. The asylum regulations authorize, in direct violation of the principle of non-refoulement, deportation of recognized "asylum seekers" who after "reasonable time" have not been resettled to a third country.

The 1994 Asylum Regulation only permits assessment of protection claims on the basis of the Refugee Convention and does not provide for separate procedures in line with Turkey's obligations under the U.N. Convention Against Torture (CAT) or the European Human Rights Convention. Turkish domestic courts have also neglected to invoke the provisions of these Conventions in hearings concerning threatened deportation.

Above and beyond the protection afforded by the Refugee Convention, Article 3 of CAT explicitly prohibits the forcible return of people to countries where they risk being tortured, and applies to any persons who, for whatever reason, are in danger of being subjected to torture in their country of origin.

The European Court of Human Rights case law has also established that expulsion of an alien by a State Party may give rise to an issue under Article 3 of the European Human Rights Convention, where that alien, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country.60 In this context, the Committee of Ministers of the Council of Europe has explicitly required governments of member states to ensure that an effective remedy "be provided for any asylum seeker, whose request for refugee status is rejected and who is subject to expulsion to a country about which that person presents an arguable claim that he or she would be subjected to torture or inhuman or degrading treatment or punishment."61

In its October 1999 Regular Report on Turkey, the E.U. Commission stated that the geographical reservation renders the asylum machinery "largely . . . ineffective." The report goes on to recommend that "a department specifically intended to handle asylum cases also needs to be set up. It would also have to be able to gather and evaluate figures on the number and origin of asylum seekers and on the reasons for refusal of asylum." By maintaining this anachronistic geographical limitation, Turkey puts itself at odds with the contemporary norm of refugee protection. This is particularly inappropriate since Turkey is a member of UNHCR's Executive Committee, which has urged State Parties to the Refugee Convention to "review such reservations with a view to their withdrawal."62

Accession Partnership Recommendation:

* The Turkish Government should remove the geographical restriction on the application of the Refugee Convention, and should be reminded of its obligation to uphold the principle of non-refoulement regardless of the geographical restriction. It should also establish without delay an independent advisory committee, composed of independent experts and representatives of the UNHCR and relevant non-governmental organizations, in order comprehensively to review refugee protection in Turkey and make recommendations on how the government could better discharge its international obligations toward refugees. Particular urgency should be given to amendments to asylum laws and refugee status determination procedures in order to ensure that they do not result in refoulement. These measures are not specified in the Report or the Calendar.