The Charter of Fundamental Rights of the European Union entered into force on December 7, 2000. Several of the protections established in the Charter of Fundamental Rights are relevant to protecting refugee women from sexual assault. Like international human rights instruments, the Charter of Fundamental Rights includes several general provisions that may be construed to prohibit sexual violence against women. Article 1 of the Charter states that, “[h]human dignity is inviolable. It must be respected and protected.” Furthermore, the Charter asserts that everyone has a right to life, the right to respect for his or her physical and mental integrity and the right to liberty and security of person. The Charter also prohibits torture or inhuman or degrading treatment or punishment and slavery or servitude. The Charter also establishes a right to asylum. This provision, laid out in Article 18 of the Charter, is an important innovation. For example, while the Universal Declaration of Human Rights states that everyone has a right to seek and to enjoy asylum from persecution, it does not establish an actual right to receive asylum. Furthermore, although the Convention Relating to the Status of Refugees enumerates a series of rights to which those who qualify as refugees are entitled, it does not establish a right to asylum. Instead, the Convention requires in Article 33 that, “[n]o Contracting State shall expel or return (“refouler”) a refugee…to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” On the other hand, Article 18 of the Charter of Fundamental Rights of the European Union states that, “[t]he right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community.”

Policy Relating to Sexual Violence Against Refugees

European Parliament

The European Parliament has also taken steps to develop human rights standards, including both recommendations aimed at promoting human rights in non-European countries and common standards for EU members and candidates for membership. On 16 March 2000, the European Parliament issued a resolution on the Annual Report on International Human Rights and European Union Human Rights Policy from 1999. Several of the Parliament’s recommendations refer to either establishing common refugee and asylum policies or to combating sexual violence.

For example, the Parliament, “[i]nsists that protection of abused women seeking asylum should constitute a part of the common asylum policy of EU Member States; that women who are victims of a system of permanent oppression on grounds of gender in their home countries are eligible for asylum in the European Union, subject to the fair assessment of each individual application; and that provision should be made for rehabilitation and support for female asylum seekers who are victims of violence.” From European Parliament, European Parliament resolution on the Annual Report on International Human Rights and European Union Human Rights Policy, 1999, 51 (A5-0060/2000) (16 March 2000). Furthermore, the Parliament calls on the European Union to establish common policy measures on procedural arrangements for refugees and asylum seekers and on the Council and Commission to “step up their efforts to establish common definitions and strategies at EU level on asylum seekers and refugees.” From European Parliament, European Parliament resolution on the Annual Report on International Human Rights and European Union Human Rights Policy, 1999, 67 (A5-0060/2000) (16 March 2000).

The resolution also includes a series of recommendations aimed at protecting women from sexual and gender-based violence, including urging all states to ratify and implement the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); urging all states to formulate and implement national action plans for the elimination of violence against women; calling on governments to promote research and to establish indicators to gauge violence against women, its scope, type and characteristics; stressing that full protection must be insured for rape victims who testify at international tribunals; calling on governments to adopt measures to ensure that women in detention are not subject to rape, sexual abuse or other forms of humiliation; recommending enhanced EU support for NGOs working for women’s human rights, for an end to trafficking and for the rehabilitation of victims; recommending that funding be entered in the Financial Perspectives of the Union for measures designed to tackle violence against women and trafficking in women, “including for information campaigns, targeting potential victims of trafficking, in Central and Eastern Europe and elsewhere” From European Parliament, European Parliament resolution on the Annual Report on International Human Rights and European Union Human Rights Policy, 1999, 54 (A5-0060/2000) (16 March 2000) and urging all governments to “provide practical and effective support for victims of trafficking, including protection, shelter, access to healthcare, psychological care, sufficient income, counseling on asylum, work and education.” From European Parliament, European Parliament resolution on the Annual Report on International Human Rights and European Union Human Rights Policy, 1999, 51 (A5-0060/2000) (16 March 2000). Adapted from European Parliament, European Parliament resolution on the Annual Report on International Human Rights and European Union Human Rights Policy, 1999 (A5-0060/2000) (16 March 2000).

European Commission

On 3 April 2001, the Commission of the European Communities issued its Proposal for a Council Directive laying down minimum standards on the reception of applicants for asylum in Member States. These minimum standards constitute one of a series of steps taken to design a common asylum policy for the European Union. The Proposal includes minimum standards both for the treatment of victims of sexual violence and for protecting refugees from sexual assault.

In Chapter III, Article 16, referring to the provision of housing to refugees and asylum applicants, the Commission indicates that Member States should ensure that applicants housed in accommodation centers and premises set up for the purpose of housing applicants while determining their right to legally enter the territory of a Member State should be protected from sexual assault. This includes separating men and women who do not belong to the same family.

Chapter VI of the Proposals sets forth provisions for persons with special needs, including victims of sexual abuse of exploitation. The Proposal establishes that Member States shall take the situation of people with special needs into consideration when promulgating national legislation and regulations implementing provisions relevant to material reception conditions, psychological and health care.

In Chapter IV referring to policies on health and psychological care, the Commission proposes that, depending upon the circumstances in which an applicant is found, Member States shall ensure that applicants and their accompanying family members have access to emergency health care, primary health care provided by a general practitioner as well as psychological and health care that cannot be postponed. In particular, Member States shall meet the special medical and psychological needs of victims of rape and gender-based violence.

“According to the conclusions of the Council meeting of 30 November and 1 December 2000 regarding reception conditions: ‘The host Member State should provide special medical help for asylum seekers who have been the victims of torture, rape or other serious acts of violence.’” If necessary, Member States shall ensure that victims of rape or other gender-based violence are accommodated “in special centres for traumatised persons or have access to special rehabilitation programmes. Special mental health care shall be provided for persons suffering from post-traumatic stress when it is needed.” From Commission of the European Communities, Proposal for a Council Directive laying down minimum standards on the reception of applicants for asylum in the Member States, 42 (3 April 2001). (PDF, 53 pages).

The European Commission has recognized that the persecution against women on account of one of the five grounds enumerated in the Convention Relating to the Status of Refugees (race, religion, nationality, membership of a particular social group or political opinion) may be effected through the use of sexual or gender-based violence. In the Commission of the European Communities’ Proposal for a Counsel Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection, the Commission maintains that that the true motive for the persecution should not be obscured by the form of the persecution. Some sexual and gender-based violence may be perpetrated against a woman because of her race, religion, nationality or political opinion. Other gender-specific violence may be perpetrated against a woman purely due to her gender. The Commission also recognizes the need for specific guidelines for protecting refugee women and children. However, these guidelines have not yet been developed. Adapted from Commission of the European Communities, Proposal for a Council Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection, 16 (COM(2001) 510/F) (12 September 2001). (PDF, 65 pages). Commission of the European Communities, Proposal for a Council Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection, 16 (COM(2001) 510/F) (30 October 2001). (PDF, 10 pages)http://europa.eu.int/eur-lex/pri/en/oj/dat/2002/ce051/ce05120020226en03250334.pdf

The Commission further states that the phrase “membership of a particular social group” should be interpreted broadly so as to include a wide range of groups that may be considered “inferior” or “second-class citizens” in their countries of origin. The application of this provision should encompass situations in which the government of the country of origin condones persecution effected by private actors. This may include situations where women are subject to domestic violence, including sexual violence, and are unable to seek redress in their own country because of their status as women or a particular subgroup thereof. Adapted from Commission of the European Communities, Proposal for a Council Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection, 22 (COM(2001) 510/F) (12 September 2001). (PDF, 65 pages).

The European Union has also taken the needs of sexual violence survivors into consideration in formulating its procedures for granting and withdrawing refugee status. The Commission of the European Communities issued its Proposal on a Council Directive on minimum standards on procedures in member states for granting and withdrawing refugee status on 20 September 2000. Article 8 of the proposed procedures provides that before a decision is taken by the responsible authorities on an application for asylum, the applicant for asylum and all adult dependents must be given an opportunity for a personal interview. The Commission’s proposal establishes that Member States shall ensure that personal interviews are conducted by an interviewer and an interpreter of a sex chosen by the interviewee “if there are reasons to believe that the person concerned finds it otherwise difficult to present the grounds for his application in a comprehensive manner owing to the experiences he has undergone or to his cultural origin.” From Commission of the European Communities, Proposal on a Council Directive on minimum standards on procedures in member states for granting and withdrawing refugee status, 35 (COM(2000) 578 final) (20 September 2000). (PDF, 56 pages). The Commission explains that this last paragraph “provides for a minimum standard on an appropriate course of action in situations where there are reasons to believe that an interviewee has inhibitions in presenting the grounds for the asylum application in a comprehensive manner. The Article refers to persons and not asylum applicants as it may also concern dependants. It is applicable to the situation of any applicant or person, male or female, minor or adult, who has been a victim of torture or sexual abuse and finds it difficult to present the grounds for the application owing to these experiences, unless an interviewer and an interpreter of the sex chosen by the interviewee are assigned to conducting the personal interview.” From Commission of the European Communities, Proposal on a Council Directive on minimum standards on procedures in member states for granting and withdrawing refugee status, 14 (COM(2000) 578/F) (20 September 2000). (PDF, 56 pages). The Council of the European Union continues to amend the proposal on a Council Directive on minimum standards on procedures in member states for granting and withdrawing refugee status. The most recent amendment was issued on 19 November 2003.