Refugees’ rights get court nod
FUGITIVE: HAS RIGHT TO APPEAL
Fundamental rights protected despite serious crime.
The Constitutional Court has upheld the constitutionality of the Refugees Act that bans individuals who have committed serious crimes from being eligible for refugee status. But in doing so, the court has highlighted how their fundamental rights can still be protected even without refugee status.
The case concerns an application for refugee status made by Dobrosav Gavric, a Serbian national who used to work as a police officer in Serbia.
In the ’90s, Slobodan Milosevic, the former president of Serbia, employed a paramilitary unit known as Arkan Tigers, led by Zeljo Ražnatovic, commonly known as Arkan. He became a powerful underworld figure.
On January 15, 2000, Arkan and two of his bodyguards were assassinated in a hotel in Belgrade, Serbia. Gavric was charged with the murders. In 2008, he was sentenced to 30 years imprisonment in his absence.
In 2007, Gavric entered South Africa using a fake passport and name. The authorities became aware of his real identity when he became the victim of a shooting incident in 2011. He was subsequently charged and arrested for possession of drugs and for fraud for using falsified documents.
In January 2012, Gavric applied for refugee status on the basis that he feared being killed by Arkan’s supporters. However, the Refugee Office rejected his application as the Refugees Act prohibits a person from being eligible if there is reason to believe they have committed a serious crime.
Gavric approached the Constitutional Court and argued the Act infringes his rights to dignity, life, equality and freedom and security. He argued that the Act was unconstitutional because it violated a key principle of refugee law which prohibits a person from being returned to a country where they are at risk of their rights being violated.
The Constitutional Court pointed out, however, that international refugee laws include a similar prohibition to the one in the Refugees Act. The court explained the two main reasons for this prohibition: “It protects refugee status from being abused by those who are undeserving; and it ensures that those who have committed serious crimes do not escape prosecution.”
Also, Gavric’s argument that the key principle of refugee law would be violated if he did not get refugee status was incorrect, the court said. Even if a person was not eligible for refugee status, they could apply to a court for their extradition to be stayed. The constitution prohibits the state from extraditing people who will be at risk of facing torture or the death penalty.
The court then had to decide whether the Act allows a person to have the decision reviewed when their application for refugee status has been rejected because they have committed a serious crime.
The court pointed out that asylum seekers and refugees often have little knowledge of the law and its application involved complex questions. Also, there were potentially drastic consequences for a person whose application had been rejected, such a being at risk of persecution.
The court found the Act must be interpreted in a way that protects the rights of refugees. A person whose application has been rejected because they committed a serious crime may appeal the decision to the Refugee Appeal Board.
It also had to determine whether the exclusion provision applied to him: was there reason to believe he had committed a serious crime? And was the crime of a “non-political” nature?
The court found that there was a “reasonable likelihood” that Gavric had committed a crime because he had been convicted by a lower court in Serbia and its Supreme Court.
The court therefore found that the exclusion provision applied and Gavric was not entitled to refugee status.
The ruling effectively means that a person whose refugee application has been rejected because they committed a serious crime still has the right to appeal that decision.
Edited and republished from Groundup.org.za