Comments by the International Rehabilitation Council for Torture Victims (IRCT) on the GREEN PAPER on the future Common European Asylum System
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Comments by the International Rehabilitation Council for
Torture Victims (IRCT) on the GREEN PAPER on the future
Common European Asylum System
This paper aims to provide input to the questions raised in the European Commission’s
Green Paper. It reflects the main concerns of the International Rehabilitation Council for
Torture Victims (IRCT)1 who represents an important number of torture rehabilitation
centres providing specialized services to asylum seekers and refugees in European Union
Member States.
1. Council Directive 2005/85/EC ("the Asylum Procedures
Directive")2
Asylum procedures should take into consideration the special needs that survivors of torture
might have when presenting their cases. Ignoring these special circumstances, such as the
risk of re-victimization and difficulties in verifying the credibility of the claim, could lead to
asylum procedures that precisely ignore the group of applicants the asylum process is
intended to help.
Proper identification of torture survivors at an early stage, particularly at first instance,
through better quality decision-making processes, could reduce the amount of appeals,
resulting in cost and time savings and early recognition of individuals in need of protection.
Furthermore, greater consistency in Members States’ practice regarding decision-making
could help address one cause of secondary movement within the EU.
Article 10 (a). Guarantees for applicants for asylum
Recommendation
There is a need for special provisions to ensure that asylum seekers are aware, before
having their personal interview with the authorities, of the special protection granted to
them if they have been subjected to torture or ill-treatment.
Article 12.3. Personal interview
The IRCT is particularly concerned about this exception to the personal interview, which
could gravely undermine the reliability and fairness of asylum determinations. Indeed,
vulnerable persons, such as victims of torture and ill-treatment, may be unfit or unable to
be interviewed owing to the very fact that they have undergone torture or ill-treatment and
suffer from psychological trauma.
1
The International Rehabilitation Council for Torture Victims is a health-based global network created in 1985
which collaborates with more than 200 rehabilitation centres working with victims of torture worldwide. Torture
rehabilitation centres based in EU Member states have been working for more than a decade on the treatment of
people who have experienced torture, most frequently refugees and asylum seekers. They provide medical and
psychological care, often free of charge, social assistance to torture survivors and they train health personnel in
order to increase the quality of the treatment and rehabilitation services offered.
2
http://eur-lex.europa.eu/LexUriServ/site/en/oj/2005/l_326/l_32620051213en00130034.pdf
1The case law of the European Court for Human Rights and the UN Committee Against
Torture have stressed the need for an individual, thorough examination of all the relevant
facts in cases where there is a risk of refoulement.
Recommendation
There needs to be an obligation to require a medical or psychological certificate from a
competent and independent authority familiar with the psychological and physical effects of
torture and ill-treatment, in all the cases where the determining authority considers it
relevant to apply this exception.
Article 13 (b). Requirements for a personal interview
According to experts at torture rehabilitation centres throughout Europe, even fairly
competent speakers of a foreign language frequently revert to their mother tongue when
discussing torture as well as other painful and humiliating experiences.
Recommendation
It is important to amend this article in order to give the opportunity to applicants to be given
(and when possible, offered a choice of) a qualified and culturally sensitive interpreter able
to ensure communication in their mother tongue which will facilitate the task of giving a full
account of their traumatic experiences. As stated under article 10 (b), these services shall
be paid for out of public funds.
Article 23. Examination procedure
This article provides a list of indicative examples in which an examination procedure can be
accelerated. The IRCT is particularly concerned that individuals are often required to
recollect their traumatic experiences in the context of an accelerated procedure lacking
essential safeguards (i.e. presence of an interpreter or gender considerations), and believes
that such procedures may fail to adequately recognise torture survivors.
Recommendation
Sufficient time should be allotted to interview the alleged torture survivor. Investigators
should not expect to get the full story during the first interview. Trust is an essential
component of eliciting an accurate account of abuse. The individual needs to be given an
opportunity to request breaks, interrupt the interview at any time and be able to leave if the
stress becomes intolerable, with the option of a later appointment.
Article 23.4(g). Inconsistent or contradictory representations
This article defines inconsistent and contradictory representations as a negative sign
allowing for the application of the accelerated procedure.
It is clear that the consistency of an asylum seeker’s account and his/her power to convince
have become a central question in determining asylum status. This poses serious concerns
regarding torture survivors since an overwhelming amount of experience among medical
and rehabilitation professionals shows that otherwise “coherent” behaviour often transforms
into mental and physical agitation and inconsistency when an individual is asked to recount
a traumatic experience. The cause of inconsistent accounts can also be that a torture
survivor can recall accurately an event but there is some barrier to disclose the information,
or alternatively it may arise from a failure to recall a traumatic event in the same way on
successive occasions, which can be the result of the victim not “having made of sense” of
their traumatic experiences prior to the interview. Hence the process of a torture victim
recollecting their experiences is more akin to a process of therapy to reconstruct the
person’s experiences in a meaningful way rather than an unproblematic and objective
process of recollection. Common torture related symptoms of disorders such as brain
2trauma following beatings can result in impaired and inconsistent memory due to a series of
factors characteristic of sequels of torture. As a consequence the ability to articulate the
reasons for having become a refugee are often diminished.
Recommendation
The interview should allow the applicant to provide all the relevant information and to clarify
any apparent discrepancies, inconsistencies or omissions in his/her account. The EU
Directive should take the initiative to discourage national authorities from assessing in a
negative light asylum seeker’s accounts, based on the sole ground that they are
inconsistent.
Article 23.4 (i). Delay in applying
There can be numerous valid reasons for a delay in applying for asylum, such as trauma.
Research done on memory points out the specific difficulties that traumatised individuals or
victims of rape or torture may have in recounting their experiences. The European Court for
Human Rights in its case law underlines the need for flexibility in dealing with late
submissions in cases of traumatised or tortured victims. Similarly, the UN Committee
Against Torture has indicated that it is not uncommon for torture survivors in particular to
delay giving information.
Recommendation
Therefore, the lateness of an application, even without “reasonable cause” does not
necessarily have any bearing on the merits of the claim, and certainly should not be given
undue or decisive weight.
Articles 27 and 36.4. The safe third country concept
The IRCT is particularly concerned by the fact that the safe third country principle severely
increases the risk that refugees could be expelled or returned to a place where they would
be in danger of persecution. The principle provides a way to circumvent international law
and the principle of non-refoulement.
Article 27(b) is not duly implemented and often the principle is applied as designating a
country as safe for everyone. However, it is not necessarily true that just because a country
is generally considered safe, every asylum seeker will be free from persecution in that
country.
Although Article 36.4 does require Member States to lay down “modalities” for
implementing, the Directive itself fails to set up any explicit standards to ensure respect of
Member States’ most fundamental obligations. Therefore the principle often leads to non-
refoulement due to the less than stringent standards required of a “safe” country. The
various countries which use the principle do not necessarily apply the same interpretation
rules when deciding if a country should be designated as safe. Furthermore, some states
have granted safe third country status to states with questionable human rights records.
Recommendations
The IRCT urges Member States to provide relevant written safeguards to ensure compliance
with their obligations under international law and respect for the principle of non-
refoulement when transposing this provision.
There must also be an opportunity for the applicant to rebut the presumption of safety in the
particular circumstances of his/her case. IRCT therefore urges Member States to provide for
this when laying out their “modalities” for implementing Article 36, as provided for in
Paragraph 4.
3Special provision for interviews with torture survivors
The Reception Directive fails to adequately set the parameters and safeguards needed to
carry out an individual evaluation of a person who has been subjected to torture or ill-
treatment. This results in a distinct lack of a systematic screening procedure with clear and
fair rules and instructions for successfully identifying survivors of torture and ill-treatment.
Recommendation
The IRCT urges the EC to include a special procedure for the identification of survivors of
torture and ill-treatment which should include our recommendations contained below under
Article 17 of the Reception Conditions Directive.
2. Council Directive 2003/9/EC (the "Reception Conditions
Directive")3
Cross-cutting issues: Appropriate response to situations of vulnerability
The IRCT regrets the unfortunate formulation of Articles 17 and 20 which, by failing to
define key concepts, leads to a too vague interpretation of the obligations contained within
the articles. Therefore, to a certain extent, the minimum standards granted to torture
survivors are devoid of effective meaning. The EU should accept some responsibility in
better defining minimum standards and avoid deferring the issue of definition to Member
States, which risks placing the burden of decision onto those dealing directly with asylum
seekers such as general practitioners or immigration officers.
Article 17. Provisions for persons with special needs: general principle
Contrary to the other groups listed under “people with special needs”, survivors of torture
and ill-treatment – highly traumatised by their experiences – prove very difficult to identify.
Hence an accurate screening process is crucial to ensure identification and subsequent
allocation of special treatment to persons who have been subjected to torture and other
forms of ill-treatment.
Article 17 fails to adequately set the parameters and safeguards that should properly define
the application of the concept “individual evaluation”.
The IRCT has identified the following weaknesses in the common practices of “individual
evaluations” that affect the effective identification of torture survivors:
• Failure to take the initiative in identifying torture survivors. We note with
regret that there is a tendency to apply a simplistic approach to interviewing asylum
seekers, lacking expert insight into the thought processes of tortured and
traumatised individuals, which relies on the applicants to divulge their experiences.
People who have been tortured and who suffer from psychological wounds due to
traumatic events tend to remain silent about their past. They avoid talking about
their experiences since remembering the traumatic event is painful and they fear
that others cannot or will not understand them. The very fact of having to go
through fingerprinting, photographing or giving personal data to people in uniform in
a police building is a shock that can revive the asylum seekers’ innermost fears,
caused by the traumatic experience of torture. As a result, in the overwhelming
majority of cases, there is no reference to torture during the first interview with
asylum authorities, which hinders their recognition and the subsequent granting of
special protection and treatment.
3
http://eur-lex.europa.eu/LexUriServ/site/en/oj/2003/l_031/l_03120030206en00180025.pdf
4• Lack of systematic referral to medical staff. Acknowledgement of medical
problems should take place as early as possible in the asylum procedure. There is
however a lack of clear rules about how and when to refer an asylum seeker to a
specialised mental health professional (doctor, psychologist) for a medical and
psychological report. There is also a shortage of specialised practitioners or
psychologists participating in the medical screening.
• Downplaying of medical reports. The handling of expert evidence is of great
concern, as medical reports are frequently downplayed, ignored or even disputed by
authorities lacking relevant medical training. We observe a decreasing return on
applications for asylum, with the proportion of successful cases dwindling steadily
over the past 25 years, despite the fact that medical expertise is more and more
often requested.
• Absence of special provisions to ensure that asylum seekers are aware, before
having their personal interview with the authorities, of the special protection granted
to them if they have been subjected to torture.
Recommendations
Article 17 should be complemented by “Guidelines on how to conduct individual interviews
with persons who have been subjected to torture or ill-treatment”. Such guidelines should
be drafted in close collaboration with experts in the field and include the following elements:
• The interview should allow the applicant to provide all the relevant information and
to clarify any apparent discrepancies, inconsistencies or omissions in his/her account.
• The guidelines should promote the use of medico-legal reports drafted by experts
based on the guidelines provided by the Istanbul Protocol.4 Critical analysis of
medical reports should only come from an expert with similar experience (contra-
expertise). Decision-making authorities should not make medical observations, due
to lack of needed expertise.
• The issue of authority needs to be addressed much more explicitly in any guidelines
or directives, to account for the fact that torture survivors are likely to have a
genuine fear of authority, individuals representing authority, and physical settings
and procedures which may remind the torture survivor of their experiences of
torture.
• The guidelines should not only focus on how to deal with someone that claims to be
a torture survivor but also on how to recognise a torture survivor who fails to
explicitly claim to be one. This is to address the issue of barriers to disclosure.
• Provisions for the presence of an interpreter should be included. The interpreter’s
identity and ethnic, cultural and political affiliation are important considerations in
the choice of an interpreter.
• Gender issues: asylum applicants should be able to choose the gender of the
interviewer and, where necessary, the interpreter.
• Sufficient time should be allotted to interview the alleged torture survivor.
• All asylum seekers should be informed prior to the interview of the special protection
granted to them if they have been subjected to torture or ill-treatment.
4
The Istanbul Protocol Manual on the Effective Investigation and Documentation of Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (1999) is a comprehensive set of guidelines for medical and legal
experts to use in the investigation and documentation of torture.
5Article 20. Victims of torture and violence
While the Directive requires Member States to take into account the special situation of
vulnerable persons, it leaves too much leeway for the interpretation of such obligations,
which can easily lead to a deficient implementation of this Article.
The Directive indeed fails to provide a definition of the situations and cases in which
“necessary treatment” may be required. The Directive only refers to “if necessary”. The
Directive also fails to define “necessary treatment” and the services that it involves for
torture survivors. As a result of the lack of a specific definition, most of the traumatised
refugees end up being referred, if at all, to the same health services as any other asylum
seeker, which merely cover basic and urgent health needs. However, our experience
indicates that asylum seekers experience serious difficulties in accessing mainstream health
services due to difficulties in understanding health services administrative procedures and a
lack of language support. We also know that particular needs, especially mental health, are
being inadequately met.
We note that even the few countries that do provide the special services for survivors of
torture and ill-treatment called for by the Directive often fail to provide them in sufficient
quantity and quality to reach the levels of protection granted by the Directive. Most of the
countries have neither the necessary structures nor the resources to deal with more than a
very small number of these. The situation is extremely worrying due to the shortage or lack
of health professionals who are trained/prepared to cope with this special and sensitive
task. In fact, not only are there not enough available services, but often the existing
national health services (NHS) do not have the capacity and professional expertise to
properly help torture traumatised refugees.
Among the main concerns regarding the lack of NHS capacity to cope with the special needs
of torture survivors are the following: most service providers lack the training and skills to
recognise the after-effects of torture among refugees; lack of staff expertise regarding
mental health needs; lack of a holistic approach reflecting both health care needs as well as
specific socio-cultural issues; insufficient time granted for each consultation; and lack of
culturally sensitive translation facilities.
The IRCT notes with concern that there is a lack of specialised health institutions supported
by governments and mandated for the provision of specialised treatment for asylum seekers
and refugees who have experienced torture. There are relatively few (or in some countries a
total absence of) torture rehabilitation centres or programmes, and most of these are
limited primarily to large cities – the number of persons that have been or can be seen in
these centres is a tiny fraction of the number of torture survivors living in Europe. The cost
of not rehabilitating is huge both for the individual and for society at large. Integration will
not be successful if the aftermath of torture is not addressed.
An additional problem is that general practitioners and other health workers are often
unsure about asylum seekers' entitlements to health, how to deal with asylum seekers'
mental health problems, and where to make appropriate referrals. Indeed, once a potential
torture survivor has been identified, there is a distinct lack of clear instructions to
authorities regarding the referral system toward rehabilitation services. Often, asylum
seekers are referred to a specialised rehabilitation centre only after the pro-active
intervention of an NGO.
6Recommendations
• The Directive should provide minimum standards for what constitutes
“necessary treatment”. More safeguards need to be taken at this level in order to
ensure that survivors of torture receive the adequate treatment either through
specialised rehabilitation centres or through the NHS or a combination of both.
There are many issues involved in the rehabilitation of torture survivors and
ultimately their ability to reconstruct their lives in the host country. Necessary
treatment can only exist within a continual, interdisciplinary and holistic clinical
approach. In order to constructively confront torture-based trauma, a survivor must
not be “currently in crisis around other things”. Familial and cultural needs must be
taken into account in order to achieve necessary treatment. It is also very important
to allow time for relationships of trust to develop and to ensure that continuity of
service provision is available. Necessary treatment should also include treatment
without delay, as waiting several weeks or months to receive a service exacerbates
the problems people are experiencing and can lead to more serious and long-term
problems. It should also include a provision for ensuring that asylum seekers in
ongoing treatment are not dispersed until the treatment is ended.
“Necessary treatment” depends on the needs of the individual torture survivor, but
should be broadly defined to include:
o Medical screening
o Mental health treatment
o Psychological and psychotherapeutic services
o Social assistance
o Legal assistance
o Continual access to treatment
o Secondary preventative measures
o The provision of qualified culturally sensitive and specially trained interpreters
in those cases where there would otherwise be a lack of comprehension
o The option to choose a provider of the same gender as the client.
• Establishment of specialised services. In order to meet the requirements of the
Directive, the IRCT is of the opinion that specialist services for traumatised asylum
seekers within the Member States of the European Union must be expanded.
In our opinion, refugee survivors of torture require special treatment, which may be
delivered most appropriately through a specialist service. Because of the survivor’s
experiences it is imperative to create an independent accessible space that would
welcome survivors of torture who seek rehabilitation assistance. The only way to
ensure efficient treatment is through a holistic approach including qualified
interpreters and therapists. A traumatised person must have the security of
independent, impartial, unbiased and trained health and welfare professionals and
advocates. The services also need to carefully take into consideration the extent to
which any institution mirrors institutions in which they were ill-treated (uniforms,
locks, bars, etc.).
• Need to allocate financial resources. To make this Article effective, appropriate
financial resources must be made available by the governments. The implementation
of the Directive should not be borne solely by the rehabilitation centres’ funds.
7Governments should provide financial support to specialised organisations that are
providing the necessary treatment.
• Improved referral system. Access to treatment shall be automatic for identified
torture survivors. In order to achieve this, the set up of a clear referral system with
transparent criteria and rules is needed. If available, specialised rehabilitation
centres should be the first referral point.
There is a need to increase the flow of information between asylum/reception
authorities and torture survivors regarding the range of services available in their
countries in order to improve access for torture survivors to people who can help
them professionally. The asylum seeker should get professional medical treatment at
an early stage of the asylum procedure, which will help prevent re-traumatisation
and unnecessary loss of health.
Article 18. Minors
Recommendations
Besides the general recommendations made under Article 20, the IRCT’s specific
recommendations regarding minors are as follows:
• Health screening of children must be based on comprehensive child centred training
that can address needs arising out of any form of abuse.
• Legal provisions ensuring necessary protection/treatment of traumatised minors and
their mental well-being need to be issued.
• There is a need for a systematic screening procedure with clear rules and
instructions with the purpose of identifying minors with special needs, such as
victims of torture. Usually identification of minors with special needs occurs following
the intervention of NGOs. A functional screening system is vital when dealing with
traumatised minors since they normally are reluctant to seek treatment. Traumatised
minors usually come to the attention of specialist services when they cannot cope
any more or they are in crisis (risk of self-harm or harm to others).
• There should be an institutionalised referral system from authorities to rehabilitation
centres in order to ensure that the traumatised minor receives the necessary
treatment as a priority.
Article 24. Staff and resources
The IRCT notes that, in spite of the obligation to provide necessary training contained in this
article, very often asylum authorities and immigration officers lack the specific training
needed in order to be able to interview and identify persons who have been subjected to
torture or ill-treatment.
Due to the lack of specific training on the issue of torture sequels and mental health
problems, substantive details of the application often fail to be taken into account during the
individual interview and medical and other corroborative evidence is not sought. Asylum
authorities rarely receive any reliable feedback regarding the correctness of their
assessments. Many caseworkers appear to lack basic interviewing techniques and the
necessary intercultural skills and sensitiveness necessary to carry out these kinds of
interviews.
Moreover, listening to accounts of torture can be very stressful for the interviewer, who
needs special training, support and possibilities for de-briefing to cope with those feelings.
8Recommendations
• Training for asylum and immigration staff:
o The EU Directive should emphasise the importance of long-term, continuing
and compulsory training to ensure that torture victims are identified and
approached in a suitable manner from the outset.
o The interviewing authority needs to be aware of the long-term medical and
psychological effects of torture and how these influence the asylum seeker’s
ability to present their case.
o Training should also help caseworkers to refer asylum seekers to medical
experts when necessary and to give proper weight to the evidence in the
medical reports.
o Training would provide more practical questioning methods, with the aim of
“testing” for specific experiences, such as fear of authority or other signs of
trauma, whilst recognising that the deciding authority's good intentions are
not always obvious/visible to the applicant.
o Asylum officers should note that not all forms of torture result in physical
scars or injuries that are identifiable during medical examination or are visible
to an interviewing officer.
o Asylum officers should receive training on de-briefing techniques in order to
help them cope with the feelings that they may experience from listening to
accounts of torture.
• Training for health professionals engaged in care should become mandatory.
Health professionals should receive specific training on how to identify signs of torture
and ill-treatment. As recommended by the UN Committee Against Torture in its report
to France, the Istanbul Protocol of 1999 (Manual on the Effective Investigation and
Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment) should become an integral part of the training provided to physicians.
There is a need to enhance the capacity of health professionals to treat survivors of
torture and to raise the awareness of authorities regarding the special needs of torture
survivors and the different ways of adequately treating them. Health professionals
should gain basic knowledge on psychological trauma, the psychological damage
caused by gross human rights violations and torture and the different treatment
modalities. Minimum standards for these specialists will include knowledge on:
o Trauma
o The psychological damage caused by gross human rights violations and
torture
o Specific treatment for those with such special needs
o Cultural sensitivity and knowledge
o Human rights context (i.e. an understanding of patterns of human rights
violations in the particular country of origin).
3. Council Directive 2004/83/EC (the "Qualification Directive")5
Article 4. Assessment of facts and circumstances
The IRCT reminds Member States that under this Article they have the duty to assess, in co-
operation with the applicant, all relevant elements of the application, and take into account
all relevant country of origin information, statements and documentation presented by the
5
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32004L0083:EN:HTML
9applicant, and the individual position and circumstances of the applicant, as well as whether
the applicant has already been subject to persecution or serious harm. From this Article it
can be understood that previous persecution, torture or ill-treatment is an indication for
future persecution, torture or ill-treatment.
Medico-legal reports drafted by professionals can often be extremely useful in providing an
expert’s opinion on the degree to which medical and/or psychological findings correlate with
the applicant's allegations of abuse. Moreover, the reports facilitate the assessment of
asylum seekers’ claims by health professionals who are better qualified to utilise appropriate
interview techniques since the evaluation of individual cases requires a careful and thorough
clinical history and examination of physical and psychological evidence by clinicians who are
sensitive to cross-cultural issues, and who have country related information about torture
techniques and methods.
Recommendations
• The use of medico-legal reports should be promoted by the EU.
• Medical examinations and medico-legal reports should be based on the guidelines
provided by the Istanbul Protocol.
• Critical analysis of medical reports should only come from an expert with similar
experience (contra-expertise). Decision-making authorities should not make medical
observations, due to lack of needed expertise.
• Regulations concerning the role and use of medico-legal reports need to be
harmonised in consultation with recognised experts who regularly produce such
reports.
Financial solidarity: The European Refugee Fund (ERF)
Several centres that have received funding through the ERF have indicated that the
government incurred serious delays with the disbursement of the grants. After the signature
of the contract it took, in some cases, more than a year before the funds were received by
the centre and in some countries like Hungary NGOs that participated to the program in
2004-2005 are still awaiting the final payment of their grant for projects that were closed
more than a year ago. This obviously implies extremely negative consequences for the
organisations implementing ERF projects and discourages them from applying for this kind
of funding.
Recommendation
It is important that Member States take the necessary measures in order to enhance the
efficiency of ERF funds and avoid hampering the work done by implementing non-
governmental organisations.
Brussels, 18th July 2007
10You can also read
