Brev til FNs Menneskerettighetskomité
FNs Menneskerettighetskomité skal ta opp Norge 24. og 25. oktober og vil deretter komme med anbefalinger til hvordan forpliktelsene etter FNs konvensjon om sivile og politiske rettigheter bedre kan oppfylles. Helsingforskomiteen har sammen med andre norske frivillige organisasjoner skrevet brev til komiteen. Brevet omhandler blant annet Dublin-returer, rettshjelp, barnets beste i utlendingsforvaltningen, behandlingen av asylsøkerbarn og systemet for bistand til torturofre. Brevet er en oppfølging av en større rapport som organisasjonene sendte til FN-komiteen tidligere i år.
Norwegian NGO-forum for Human Rights on behalf of
Human Rights Committee of the Norwegian Bar Association
Human Rights Committee of the Norwegian Psychologist Association
International Commission of Jurists Norway
Juss-Buss Legal Aid Clinic
Norwegian Helsinki Committee
Norwegian Organization for Asylum Seekers
Norwegian People’s Aid
Save the Children Norway
Norwegian Tibet Committee
Oslo, 8 September 2011
UN Human Rights Committee
c/o Office of the High Commissioner for Human Rights
Attention Kate Fox, firstname.lastname@example.org
Dear Madams and Sirs,
On the occasion of the review of Norway’s Sixth Periodic ICCPR report we have already submitted an alternative report to you.
Having reviewed the List of Issues adopted as well as Norway’s replies to it , (referred to as “reply” below), we maintain that the information and points of view of our alternative report of December 2010 remain relevant. The said report has already been distributed to the Committee Members in hardcopy. In addition, we also take this opportunity to submit some more comments and recommendations below. They are primarily organized with reference to the List of Issues (LoI) .
Issue 4 - Coercion and restraint in mental health care
We agree with Norway’s reply that there have been several statistical studies about the level of coercion and restraint in mental-health-care during the last years. And it is correct that Norway has a high level of coercion compared to other countries against which it is reasonable to compare. But the means of coercion and restraint are not described concretely enough in the studies: Involuntary admission is most studied and is best documented. There are much less data and statistics on seclusion (shielding), isolation, the use of belts and involuntary medication.
There have been some civil cases before Norwegian courts where patients have accused specialists in mental-health-care institutions of unjustified coercive treatment. It is assessed by organizations working with mental health issues that there would be many more such cases had legal aid been more readily available.
Issue 8 - Dublin regulation
Norway applies the Dublin II Regulation ”on the expectation that other Member States comply with their international obligation” . In our view, recent developments and increased knowledge about the asylum systems in some of the other Member States show that the Dublin II Regulation should be applied with more care and not automatically be applied on the assumption that the other Member States comply with their obligations.
Below follow three examples to highlight this. First, the European Court of Human Right’s judgment M.S.S. v Belgium & Greece provides a clear example of Member States not complying with international obligations. We refer to our alternative report from December 2010 for more details. Second, in July 2011, the European Council on Refugees and Exiles (ECRE) published an overview of detention and reception conditions in selected EU States. The overview is not exhaustive, but provides an overview over publicly available information on detention and reception conditions in selected countries . What appears in the overview is that in certain States the conditions in detention are so deplorable that they might amount to inhuman and/or degrading treatment. There are also examples where asylum seekers are kept in detention, often under difficult conditions, during the whole asylum procedure. Third, concern has been raised about the conditions in Italy both by civil society in Norway as well as in other European States . In Germany, administrative courts have issued suspension orders in several cases regarding return to Italy. The same has been done by the European Court of Human Rights. The situation for vulnerable groups is particularly worrying, as the services provided regularly are insufficient and do not meet the basic needs of vulnerable groups.
We are aware of the ongoing discussions within the EU regarding a possible suspension mechanism in a revised Dublin agreement. However, the discussions are progressing slowly and in the meantime this remains a pressing concern.
Norway implemented the EU’s return directive on December 24, 2010. With the implementation of this directive situations might occur where the Norwegian authorities could choose whether to apply the return directive or to apply the Dublin II Regulation. These situations might occur when a person has had its asylum application denied in another Dublin - State and at the same time is illegal in Norway. From the way it has been presented by the Norwegian authorities, Norway would then have the option to either start a return process according to the Return directive or apply the Dublin II Regulation. If the Return directive is applied, it is of great importance that the principle of non-refoulement is respected.
Recommendation for questions to the State party: How will Norway ensure in individual cases, that people are not sent back to situations in the other Schengen Member States that could amount to cruel, inhuman or degrading treatment? In particular, what will the Norwegian government do to secure that vulnerable persons are not being returned to a situation where they lack access to basic services?
How will Norway proceed in situations where both the EU return directive and the Dublin II regulation are applicable, bearing in mind that there is not yet a fully common asylum system in Europe and that there are large diversities regarding the assessment of asylum applications between the European countries?
Issue 12 –The use of pre-trial detention for children
According to the most recent statistics, from 2005 to 2009 there was a considerable increase in the number of incarcerations of children below 18 years of age in pre-trial detention . The length of detention varies, but there are examples of children having spent - 9 - nine months in pre-trial detention. Until 2010 all children in pretrial detention were placed in regular prisons. From that year two prison cells designed for children became available, but these are only used for pre-trial detention when not occupied by sentenced children. In regular prisons children in pre-trial detention are held together with adults.
Recommendations for questions to the State party: What will the state do to reduce the incidence of pre-trial imprisonment of children?
Issue 13 - The defendant’s access to evidence
In our alternative report, page 45, we pointed out some shortcomings with respect to the de facto access to of the defense to “all documents in the Police’s possession”. In reply, the State has cited section 242 in the Criminal Procedure Act and the procedure for deciding on whether special circumstances, such as the need to protect the fundamental rights of others or a vital public interest, apply. It is correct that such rules and procedures apply. The law says that the prosecuting authority shall make the case documents (“the documents relating to the case”) available to the defense upon request. This however, does not fully guarantee that all material evidence in the prosecutor’s or police’s possession for or against the accused becomes available to the defense.
The decision of whether or not a document is “a case document” is made by the prosecution or the police. Documents which the police find not interesting from their point of view will be called 0- documents, and will not always be in the file received by defense. The Supreme Court has decided, in the “Nokas –case”, that the defense has the formal right to receive also the 0-documents. This is however, not always respected by the police in practice. Decisions by the Police to classify a document as a 0-document and to not make it available to defense is in practice exempt from review, as the defense will only exceptionally be aware of such decisions. 0-documents will typically contain information about investigative efforts that did not result in evidence against the accused. From the perspective of defense, such non-findings may be very relevant.
There are also examples of cases where access to case documents has been made unduly difficult .
Furthermore, the prosecution is not obliged to inform about room or communication control in a case unless it has resulted in evidence that will be used or unless the defense specifically asks for such information. Again, non-findings that may be interesting to the defense are not automatically made available to it.
Recommendations for questions to the State party: The Committee could ask about the rules applying to 0-documents as well as the access of lawyers to information about room or communication control in cases, and how these rules might be reviewed to provide full access of the defense to all evidence in a case.
Issue 14 - Legal aid
When considering whether a legal aid applicant fulfills the financial requirements of the Legal Aid Act, the actual ability of the applicant to cover the expenses of legal aid is not assessed. Only the annual gross income is taken into consideration. The income limits are quite high in themselves. However, the applicant’s burden of child maintenance, housing costs, debt burden, and medical expenses etc. are not taken into account. The actual cost of legal assistance is not considered at all; the income limit is the same whether the legal aid required is a simple one-hour legal advice or a large court case. Especially as the cost of legal services is very high in Norway, and can amount to 150 000 – 200 000 NOK for a three day trial, this practice does not ensure that all citizens enjoy efficient access to legal assistance.
Legal aid (out of court) is only given to any person regardless of income in certain areas of law for instance to parents in child custody cases, to victims of certain violent or threatening acts and to a select groups of asylum seekers and only at the two levels of administrative procedure, as specified by the Legal Aid Act.
Legal aid given to those with a particularly low income is ensured in some additional areas of law, for instance eviction from own housing, termination of employment and division of the family unit.
In all other cases, legal aid is as a main rule not given, even in important cases within fields of law like discrimination, access to housing, debt, social security, other employment rights, prison law, and most areas of immigration law. In cases regarding human rights violations, at the pre-trial stage, for domestic courts and in the application stage for international human right bodies, legal aid is generally not available.
Decisions regarding legal aid applications are not made by an independent body, but by a government body on the basis of instructions from the Ministry of Justice. In the cases that legal aid is given, the amount awarded is very small and follows a pre-defined number of hours that usually ranges from 2 to 7 hours. In the low number of hours awarded, lawyers must also perform several administrative tasks, leaving even less time for actual legal assistance.
A recent government policy report on legal aid, published in 2009, briefly mentions the human right obligations on provision of legal aid to ensure efficient access to justice, but it does not contain a policy which will ensure that these obligations are met. Knowledge on human rights obligations in legal aid cases, both among policy makers and in the legal aid administration, is poor.
The government does not consider outreach legal aid work to be a state responsibility even if several recent research reports have confirmed that the most indigent, who often are not aware of their rights and who in many cases are reluctant to contact a lawyer by themselves, have inefficient access to justice.
Recommendations for questions to the State party: Does the state party consider that there are effective remedies for any alleged violation of the Covenant? What will the State party do to ensure effective access to domestic remedies?
Issue 19 - Care for unaccompanied minor asylum seekers
All children living in Norway are covered by provisions of the Norwegian Child Welfare Act. The Directorate of Immigration (UDI) has care responsibility for applicants aged 15 to 18, while the Child Welfare Service (Bufdir) is responsible for those under 15. The Child Welfare Service assumed responsibility for the care of unaccompanied asylum-seeking minors below the age of 15 as of December 2007. On 30 May 2008 a new chapter of the Child Welfare Act was introduced – Chapter 5 A – affecting unaccompanied minor asylum seekers. This new chapter governs care centres for unaccompanied minors who seek asylum in Norway. However, we are still concerned about the fact that a distinction is drawn between children below and above the age of 15. Unaccompanied minors between the ages of 15 and 18 are subject to discrimination in as far as they are not given the same rights to care, pursuant to the Child Welfare Act, as other children. According to Section 1-1 of the Act of 17 July 1992 relating to Child Welfare Services, the Act applies to all children residing in the realm. Despite repeated criticism from the UNCRC and urgent requests to transfer responsibility for the care of unaccompanied minors between the ages of 15 and 18 to the child welfare system, the responsibility for the care of these children still rests with the immigration authorities. It is unacceptable that the authorities have not started and not allocated sufficient resources for such a transfer.
Recommendation for question to the State party: How does the State party assess the consideration of non-discrimination with regard to unaccompanied minors’ right to care? When will the State party grant unaccompanied minors between the ages of 15 and 18 the same rights and access to care as all other children in Norway, and especially why is there no progress plan to quickly include these children in the child welfare system?
Issue 19 - Deportation of parents
In the experience of several Norwegian organisations, the best interest of the child is not sufficiently considered in the decisions from the Norwegian immigration authorities regarding expulsion and deportation of parents with children in Norway. The main consideration of the government in these cases is to ensure the effectiveness of the immigration policy, rather than the best interest of the child. The assessments of how children are influenced typically contain standard phrases instead of individual considerations. It is also a problem that factors which have been decisive in the considerations are not always stated in the written decisions from the immigration authorities.
The Norwegian Supreme Court and the European Court of Human Rights have both found that the threshold for deportation of parents is too low. Furthermore, the consideration of the seriousness of the reason for deportation is mostly based on the maximum penalty applicable for the type of crime committed, rather than the seriousness of the criminal act in question. This leads to a skewed consideration, where crimes which are in fact less serious are given greater weight against the impact a deportation will have on the child. Under the immigration law there are no other sanctions than expulsion, even if fines could be a more appropriate reaction for less serious violations. We welcome that the state is now considering the introduction of other types of reactions.
Recommendation for questions to the State party: How are experts generally involved in assessing the anticipated effect on a child of expulsion of a parent in any given case and does Norway plan to introduce such expertise involvement for every child concerned? Which measures are taken to allow each child, as far as possible, to express its opinion? Will Norway soon put in place alternative reactions for violations of the Immigration act, other than expulsion? Will Norway consider alternative reactions for violations of the penal code other than expulsion where the best interest of the child is a consideration?
Issue 19 – Dublin II Returns of minors and the best interest of the child
We are also concerned about how minors, both accompanied and unaccompanied, are protected when Norwegian authorities return a minor to another Schengen Member State according to the Dublin II Regulation. Our particular concern at present is Italy. We refer to our comment under LoI para. 8, above. We know that several persons who have been treated as minors in Norway have been treated as adults in Italy after return . In these situations there has been a lack of follow-up from the Norwegian authorities in order to certify that the minor is also treated as a minor in the other Dublin State.
Recommendation for questions to the State party: What is Norway doing and what will Norway do to ensure that minors returned under the Dublin II regulation are treated as minors in the State to which they are returned?
Allow us also to mention some issues with reference to the 6th Report of Norway, as contained in document CCPR/C/NOR/6 that could be highly relevant to the examination:
Re: State party report paras.109 – 111: The Istanbul Protocol
In the report the state party refers to the implementation of the Istanbul protocol in the asylum procedures. It remains unclear how this in fact is done. There is no regular training of health personnel or others in the documentation of torture, and it is still being discussed what procedures and measures must be in place in order for documentation of torture to be possible. It would be useful to inquire more concretely into this, that is, what is the ongoing training with regard to the protocol, who benefits from this, is this training evaluated, does it result in torture victims being referred for further examinations with a view to document consequences of torture, physical as well as psychological?
Furthermore, it would be of value to discuss the availability of medical forensic expertise to conduct such work, and how services from health personnel involved in torture documentation may be financed. It would be additionally interesting to clarify which services are available to asylum seekers who have been victims of torture, also from a perspective of health needs.
Today it is very difficult to be referred to doctors who have the capacity and competence to assess consequences of torture. Such medical services are not sufficiently organized and the few reports that are written based on such examinations, to be used both in the asylum procedure and for health care purposes, have been obtained by the initiative of the asylum seekers him- or herself, with assistance from NGOs or individuals.
The training on torture and consequences of torture to the staff involved in asylum interviews should be strengthened, especially the medial expertise required. These issues could need some further clarification from the State parties.
Re: State party report paras. 112 – 115: Health care for torture victims
Questions can also be raised on the availability of specialized health care services to persons who have been subjected to torture before arrival in Norway. The regional centres referred to in the State report have very limited clinical obligations. Most services to torture victims including rehabilitation are as a rule taken care of by the general health system. It would be of interest, to know more whether this is considered sufficient or whether one should contemplate, in addition to the mainstream services, to establish specialized services to those needing a comprehensive, multi-professional and long term care and treatment. An evaluation of the provision of services to torture victims, as it functions today could be encouraged. Today no specialized services focusing on the consequences of torture and other forms of severe violence are in place.
Re: State party report para. 116: OPCAT Ratification
It would be important to ask when it is foreseen that the OP CAT in fact will be ratified by Norway.
Re: National Human Rights Institution
Following a review of Norway’s NIHR it is clear that Norway has to take measures in order to retain its A-status. It would be interesting to raise with Norway which plans and visions exists to meet this challenge and to improve human rights protection, promotion and information in Norway.