Open Letter of the European Roma Rights Center to the German Government

12 October 1996

In recent weeks, the European Roma Rights Center has become concerned about pending deportations of Romani individuals to republics of the former Yugoslavia, particularly to Bosnia and the Federal Republic of Yugoslavia (FRY).

According to a decision taken at a meeting of regional German interior ministers which was held on September 19, 1996, individual states (Länder) in the federation may begin the deportation and repatriation of refugees from Bosnia after October 1, 1996. The Interior Ministries of Baden-Württemberg, Bavaria, Berlin and Lower Saxony have announced their intention of taking advantage of the decision and beginning the process as soon as possible. On October 9, the first Bosnian to forcefully leave Germany after the Bosnian war was sent back by the authorities of Bavaria.

The concerns of the ERRC related to the restrictions of due process for de facto refugees are reinforced by a policy directive dated September 24 from the Berlin Interior Ministry. This directive instructs the Berlin police to ignore court injunctions and to carry out deportations regardless of whether appeal procedures for an extension of legal stay are in process according to Paragraph 123 of the Verwaltungsgerichtsordnung.

The ERRC is concerned that Germany may be in violation of international law if it does not ensure that every individual on its territory has the right to apply for asylum or for a residence permit. Every case must be considered individually, according to strictly observed and well-publicized asylum procedure. Every person, including all Roma whose place of origin is in the former Yugoslavia should enjoy the right to have his or her case heard before a competent tribunal. No collective deportations should be tolerated in a democratic society.

The ERRC believes that however expensive asylum procedure may be, no one should be deprived of access to it. However, as a mechanism, asylum affords an individual only a very limited opportunity for access to justice and humane treatment. The de facto refugees in Germany whose special protection expired in the wake of the Dayton agreement should have more options today than asylum and deportation. The thousands of persons who currently find themselves in Germany have suffered from all the difficulties of forced migration in the context of war. As a group they have a lot in common. But each one of them should be given a choice: to return and take part in the reconstruction of post-war Bosnian society, or to remain and be permitted to work in a country which has already been a host for a number of years, and in which various circumstances may have arisen which would render a deportation inhumane (health problems, children's education, etc).

This is our principled position. It refers to all persons who have arrived in Germany from Bosnia in the last five years. The high cost which Germany may have to pay to ensure a fundamental individual right and a humane solution should not be a legitimate obstacle in a country based on the rule of law. All persons, of all ethnic backgrounds and life histories, should be provided access to justice.

However, we believe that the Roma who have come to Germany from the former Yugoslavia, particularly from Bosnia and the Federal Republic of Yugoslavia (Serbia and Montenegro), ARE A SPECIAL CASE. Persons belonging to this group are more likely to be eligible for asylum or residence permit than non-Roma. It is our opinion that persons of this category face additional threats to their fundamental rights if they are sent back to specific places in the former Yugoslavia.

The Bosnian Romani population suffered war crimes similar to the rest of the civilian population in the war areas. Independent research currently being conducted by the ERRC suggests that Roma were targeted on ethnic grounds and became victims of war crimes during 1992–95. The ERRC has evidence that a whole Romani community was massacred in the Zvornik area in April 1992. The Bosnian Helsinki Committee also has stated that at least 500 Roma were killed in the towns of Zvornik, Bihać and Sarajevo, and that Roma were systematically subjected to ethnic cleansing, as in the case of Banja Luka. The victimization of Roma during the war in Bosnia has yet to be acknowledged by the international community.

While the refugees from Bosnia justifiably are receiving and will continue to receive attention by the international community, refugees from the FRY, and especially draft deserters are not regarded as a threatened group. But they are. Some of them, if deported, may face imprisonment or various forms of ill-treatment. The Human Rights Law Center based in Belgrade publicized abundant evidence on forced mobilization of military age men by the FRY authorities. In many cases, evidence exists that those mobilized during the years of the war were sent to Serbian-held territories of Bosnia and to Eastern Slavonia in Croatia. It is our belief that all Romani men in military age and their families who fled from the FRY in the period 1991–1995 deserve political asylum.

As yet none of the new states on the territory of the former Yugoslavia have demonstrated a willingness to accept Roma; many Roma report that they are not welcome to return to Bosnia. None of the new states which came in place of the former Yugoslavia represents itself as an ethnic homeland for Roma, and the strong ethnic divisions tend to stream all aid toward the main ethnic groups, excluding the Roma.

Following a fact-finding mission to Bosnia in May 1996, the Council of Europe stated that Roma „...risk finding themselves in the last position when looking for accommodation, jobs and a decent position in society." Returning persons from such a vulnerable minority in the beginning of winter will almost surely result in discrimination against them in the spheres of housing, labor, and other services. The post-war crisis in Bosnia will therefore only intensify discrimination which Roma would face if the situation were normal.

In the FRY, there is now an active skinhead movement in Serbia, targeting Roma on ethnic grounds. Most recently, 3 skinheads attacked Roma in the town of Kraljevo in southwestern Serbia. Following the attack, Roma associations from around Serbia met in Kraljevo on September 18 to call the government's attention to „a growing number of skinhead attacks against them." The Parliamentary Assembly of the Council of Europe stated, in Recommendation 1203 (1993) on Gypsies in Europe, Article 11, section xv, that „It should be acknowledged that the fact of becoming victim of a pogrom, or of having reasonable fear of becoming the victim of a pogrom, against which the authorities refuse or prove unable to provide protection can, in individual cases, constitute a well-founded fear of persecution for being a member of a social group, as indicated in the 1951 United Nations Convention relating to the Status of Refugees."

The ERRC is aware of at least one case of a Romani individual, Mr. Rifet Hasimović, who will be deported to Republika Srpska. Mr. Hasimović has received orders to leave Germany, in contradiction of statements by the German Interior Ministers that no one will be required to return to Republika Srpska. Mr. Hasimović's place of residence prior to the war was Bijeljina. He reports that his house has been confiscated by the Bosnian Serb army, whose headquarters are there.

That orders to leave Germany have been sent to Mr. Hasimović also contradicts statements by the ministers that only individuals without families will be deported. Mr. Hasimović presently lives with his wife and children in Berlin. Cases such as that of Mr. Hasimović, as well as other cases which the ERRC is aware of, suggest that the decision to return Romani individuals to Bosnia may not be being weighed properly against the right of the individuals concerned to enjoy asylum and their right to respect for home and family life.

Indeed, it seems evident that at least two German states, Bavaria and Berlin, have decided to interpret the decisions of the Interior Minister Conference significantly more radically than the spirit in which the decision was originally drafted. For instance, Interior Minister Kanther gave assurances that only Bosnians from the 22 areas specified by the UNHCR would be part of „Phase 1" of the procedure (October l, 1996–May l, 1997). However, the Berlin policy directive states only that „above all" (vorrangig) Bosnians from the 22 areas should be „forced back" (zwangsweise zurückgeführt). Deportations of Bosnians to Republika Srpska are not explicitly prohibited by the directive.

It is therefore the position of the European Roma Rights Center that:
 

1. At this stage, and at least during the next six months, no one should be returned to Bosnia or the FRY against his or her will.
2. The right of appeal of deportation orders should be available to all persons currently in Germany.
3. All individuals who fear persecution on the territories of the former Yugoslavia should be given the chance to apply for asylum and should be provided access to a full and legitimate asylum procedure according to the 1951 Geneva Convention Relating to the Status of Refugees. Asylum seekers and de facto refugees facing deportation have the right to fully inform themselves of their rights and of procedures available to them. They additionally should have the right to legal counsel. Information should be made available by the authorities, in a language understandable by the individual concerned, on how to contact local NGOs assisting with asylum issues, or issues concerning their social or ethnic group.
4. Appeals of all decisions by the asylum authorities should result in automatic suspension of deportation orders until a decision has been reached.
5. When assessing the safety of conditions on the ground for Roma in Bosnia and the FRY, persecution by non-state parties should be recognized as a legitimate ground for asylum, if that persecution is not criminalized and prosecuted by the authorities in the home country.
6. Roma are more vulnerable than other groups from Bosnia and the FRY. This consideration should be integrated not only in asylum policy to the fullest extent possible, but also in the decision-making for residence permits in Germany on grounds other than political persecution. Recognition of the special status of Roma involves: acknowledgment and concomitant policy decisions at a national level that Roma are more likely than other groups to suffer human rights abuses if deported to republics on the territory of the former Yugoslavia; a concerted effort by local authorities in determining whether individuals applying for asylum or other residence are Roma; close work with local Romani and human rights NGOs.
7. Repeated assertions by leading German politicians that „Germany is not a land of immigration" foster anti-foreigner sentiment, damage the moral atmosphere and lead directly to politically expedient measures such as group deportations or the threat of group deportations. Germany should acknowledge that foreigners who have been in the country for a period of over five years may be able to demonstrate that they have founded a life in Germany and are entitled to integration and a progressive accruing of rights in Germany.