NEW EU-COMPATIBLE ASYLUM LEGISLATION IN BULGARIA
Bulgaria recently introduced its first asylum law. Other reports from Bulgaria (see article below) suggest that the law is part of a major effort by this EU-candidate country towards meeting EU demands in the field of migration control. The following contribution by Antoanela Pavlova, a legal assistant with the Bulgarian Helsinki Committee, summarises and analyses the new asylum legislation.
As with all human rights legislation, asylum legislation is fairly new for Bulgaria. The ratification of the major international human rights instruments virtually started with the beginning of the changes in the political system in the country. The problem of asylum in particular was specifically addressed in the last Bulgarian Constitution, enacted in 1991. Article 27(2) of this Constitution provides for granting asylum to "foreigners persecuted for their opinions or their activity in the defence of internationally recognised rights and freedoms". Article 27(3) provides for a special law to regulate the procedure for granting refugee status. Article 98(10) of the Constitution states that the President of the Republic can "grant asylum".
The 1951 Convention was ratified a year later- on 22 April 1992 and entered into force since 1 April 1993, but the Refugee Law specifically provided for in the Constitution was not voted and enacted until 1 August 1999. Instead, an Ordinance for Granting and Regulation of Refugee Status (4 October, 1994) regulated the rights and obligations of the refugees and the actual procedure for granting refugee status.
Thus, theoretically, there are two separate ways to get asylum in Bulgaria: to apply for a refugee status according to the 1951 Convention or to petition to the presidency. The second option is in the discretion of the president, the procedure is not regulated by law and does not provide an adequate protection to asylum seekers. The positive aspect of the Ordinance was that it explicitly included the refugee definition of the 1951 Convention. However the tendency towards restricting the number and categories of applicants existed from the very beginning.
What was brought in by the new Refugee Law? The difficult economic situation, the relatively small number of applicants and the lack of a clear state policy toward asylum resulted in a law which, despite the long period of its preparation and the large number of consultants, is rather imperfect.
The refugee definition initially in the draft law was more restrictive than the one provided in the Convention. Fortunately, as a result of discussion with representatives of United Nations High Commissioner for Refugees and Bulgarian NGOs, the definition in the final version fully corresponds to the Convention. This is not the case however with the so-called exclusion clauses, provided in Article(1) 13 of the law, and some other grounds for refusal, provided in Articles 13(2) and 14. The Bulgarian Helsinki Committee particularly objected to the provisions, arguing that it would result in the rejection of asylum seekers who deserve protection according to the 1951 Convention. Thus, refugee status is denied to a foreigner who:
- "holds a permit for permanent stay" in Bulgaria or in another safe country (Article 13(1), p.6);
- "having had ample time and opportunity earlier to submit an application, submits the application in order to forestall an impending administrative measure such as withdrawal of right to temporary residence", "coercive leading off to border", "expulsion", or "extradition" (Article 13(2), p.9);
- "flagrantly fails to comply with substantive legal obligations relating to the procedure for granting refugee status"(Article 13(2), p.10);
- "has legally entered and temporarily stayed in the country and within the course of 72 hours failed to declare before a state authority that he is a refugee." (Article 14, p.6);
- "has illegally entered the country and has failed to state forthwith before a competent authority his wish to be granted refugee status..." (Article 14, p.7).
The Bulgarian Helsinki Committee considers that a refugee rejected under one of the above provisions of the Refugee Law is deprived of protection contrary to the 1951 Convention relating to the Status of Refugees and thus contrary to the international obligations undertaken by Bulgaria in ratifying this Convention. From a legal point of view the situation is interesting, because, according to Article 5(4) of the Bulgarian Constitution, international treaties, which are ratified, published and in force are part of national law and prevail upon domestic law in cases of contradiction. In cases of appeal of such decisions, they should normally be overruled by the Supreme Administrative Court. The contradiction however must be proven in the court. Although there have been some remarkable decisions issued by the Supreme Administrative Court in the last two years, the judiciary on the whole remains very conservative.
The facts that the asylum applicant, according to the new law, has only seven days to appeal, (in the previous legislation the timeline was fourteen days), and that there is no system of legal aid established in Bulgaria, except for criminal cases, also put in jeopardy basic human rights of the applicants for refugee status in Bulgaria. Today the only chance for refugees is the legal aid provided by NGOs and, partially, by the UNHCR Branch Office in Bulgaria.
After the initial declarations in favour of building respect for refugees’ rights, and establishing fair and efficient procedures, the state started to adopt a clearly restrictive policy, aiming to limit the number of foreigners residing in the country.
In practice, access to the procedure is denied on a regular basis, although such restrictions are not reflected in the legislation. The lack of legal aid is a very substantial problem here too.
The government gladly accepted the Western European concepts of "safe country of origin" and "first country of asylum" and developed them in the new Refugee Law. The creation of the list of "safe" countries is currently in progress. Although these practices are not by themselves contrary to the 1951 Convention, the experience shows that this list is likely to be used to severely limit the number of applicants and the number of granted applications. This may also become a substantial problem, because the mechanisms for preventing expulsion or extradition from the country are imperfect, according to the principle of non-refoulement . According to their obligation to protect refugees’ rights, the Bulgarian state should have made sure that rejected applicants' life and liberty are not going to be exposed to any risk upon their return to a third country or to their country of origin. Up to now this has not been done.
The new Refugee Law contains numerous new elements. For the first time, it provides for an accelerated procedure and summary rejection of "manifestly unfounded" claims. Also for the first time, it provides for asylum examination procedures to be carried out at border check points. This could further undermine asylum seekers' access to a fair examination of their claims. For the time being, the possibilities for monitoring the situation at border check points and for providing legal aid to the applicants are still being negotiated. The time-limit for appealing a negative decision in the accelerated procedure at the border is only twenty four hours, and NGOs are seriously concerned that this will make it very difficult for applicants to react in time against breaches of their rights.
On the whole, however, the new Refugee Law is a positive development in Bulgarian asylum legislation. Many rights of refugees are clearly stated: many problems which existed in the previous period have been solved. But Bulgaria must make sure that this positive development is not going to be jeopardised in the future and that a fair balance between the country’s interest and human rights protection is found.
Antoanela Pavlova, Sofia
Contact: Bulgarian Helsinki Committee, 5, Angel Kanchev Str, BG-1000 Sofia, Bulgaria; e-mail: peregrine@aster.net