Guidelines Relating to the Eligibility of Slovak Roma Asylum Seekers

1. This paper alms to analyze the conditions faced by Slovak Roma, and apply UNHCR criteria for assessing refugee status. Roma asylum claims must therefore be evaluated in a broader political context. The question that needs to be addressed here is whether asylum claims from Romany applicants could he considered as rooted in the 1951 Geneva convention, or whether the claims may be dismissed as economically motivated.

1. Introduction

2. After the fall of communism in the Slovak Republic, Roma (more commonly known as "Gypsies") experienced a marked deterioration of their social, cultural and economic situation. The Romany population in Slovakia tends to suffer disproportionately from higher rates of poverty, unemployment, crime and disease.1[1] Prejudice against Roma among, the population is deep-rooted,2[2] and as in the neighboring countries, they are the least integrated minority in the country. Despite earlier attempts during communism to urbanize Roma,3[3] they remain marginalized socially and physically, and often live 2-3 kilometers outside of a village in camps or settlements in derelict housing without running water or sometimes even electricity. Roma infant mortality in eastern Slovakia stood at 27.2% in 1995.4[4] Many Roma families live entirely on social welfare or unemployment benefits. As recently reported by the US State Department, "Roma faced societal discrimination, and the police failed to provide adequate protection against continued attacks on Roma by skinheads."5[5]

3. The so-called "Roma issue" is not new in Slovakia. The Roma have been living on Slovak territory for centuries, and throughout their entire history, the Roma, whose culture and way of life are and have been significantly different, have been persecuted and discriminated against.6[6] The state policy towards Roma after the Second World War was either openly or indirectly assimilatory. In 1958 legislation was passed regarding "the permanent residence of nomadic peoples, under which still nomadic (primarily Vlach) Roma were forcibly settled in state housing. " They were not allowed to have folk ensembles, sports clubs or Romany literature. State policy treated Roma as a socially backward element of society and aimed at eliminating Roma settlements and special social support. From the mid-70's onward the state adopted a policy of "minimizing the unhealthy segments of the population, " on which basis financial compensation was offered to Romany women who consented to sterilization,7[7] which by 1988 reached 2000 per year.8[8] One major handicap in the struggle against discrimination is the disproportionately high (mostly petty) crime rate among Roma, which contributes to a vicious circle of perpetuating their negative stereotype. Despite the declining economic situation for Roma, they are certainly the population with the best prospect of becoming the largest national minority in Slovakia by the first quarter of the 21st century.

2. Main Problems Faced by the Romany Minority in Slovakia

2.1 Social and Economic Issues

The economic and social difficulties related to the transformation process begun after 1989 in Slovakia have had a significant impact on the Roma. Interestingly, many Roma feel nostalgic about the communist regime, under which their social and economic welfare was more actively supported by the state. This despite the fact that the regime in its attempt to assimilate the Roma neglected any ethnic differentiation - Roma could not refer to themselves as such, and official documents described them as a "socially and culturally retarded part of the Slovak population.9[9]9" The previous communist regime forced Roma to abandon their nomadic lifestyle, and designated villages where they were forced to settle. As many Roma men were smiths and craftsmen who traveled to follow available work, this resulted in a gradual dissipation of these skills. Roma were given state benefits depending on the number of their children. Their parents, however, did not promote their education, and the government placed relatively little pressure on parents to send Romany children to school. From this arose a vicious circle: poor education, no employment, teenage parents, children neglected, remedial or no education, and little incentive or insight for improving their situation. After various waves of economic reforms since 1989, the socio-economic situation of the majority of the Roma population worsened both relatively and absolutely. The Roma community today for the most part is so impoverished and state funding available to them so limited, that aside from a few small-scale educational projects, little has been done to improve their lot.1[10]

2.1.1 Population

According to Slovak census data from 31 December 1994, out of a total population in Slovakia of 5,356,207 citizens, 83,988 (1.6%) declared themselves to be Romany.1[11] Unofficial estimates put the figure at over 300,000.1[12] Since their nomadic way of life was legislated out of existence, their level of urbanization rose rapidly between 1970 and 1990 from 30. 8% to 47%.1[13] The majority of Roma in Slovakia reside in the eastern region of the country, where there are an estimated 300 Roma settlements, some with populations of up to 2000.1[14]

The Roma population is by no means homogenous, nor are they all living in the same conditions. Roma in Slovakia first may be divided into two groups: Slovak Romany and Hungarian Romany (living primarily along the southern borders of Slovakia), evidenced mostly by the degree to which each of these languages has influenced the Romany mothertongue. Arriving between the 16th & 18th centuries, their culture is essentially similar, and their basic means of livelihood is seasonal agricultural work on local farms. In the past, many were smiths, reworking used materials and making nails, horseshoes, chains, pots and other miscellaneous items.1[15] Most Roma who have not lost their jobs since 1989 work in manual employment: construction, logging, railroad, mining or simply street cleaning. Apart from these older Roma groups, a newer group of Romanies is the 'Vlach1[16]" Romanies, who came to Slovakia in the second half of the 19th century as nomads, and have minimal contact with the older Romani groups. Because of their talent for trade, they are more prosperous than the other Roma, and tend to live in cities and the wealthier counties of southern Slovakia.1[17]

2.1.2 Education

While there have been occasional and isolated attempts to take new approaches, the Slovak educational unified system neglects cultural specificities of Roma children often resulting in alienation by the curriculum. In addition, many Roma household lack any sort of academic tradition, and parents do not encourage, and often discourage their children from attending school. Of those Roma participating in a recent survey, 70.5% only had some primary education, 0.9% finished secondary or trade school, and 0.9% attended high school.1[18] Fifty-nine percent of Slovak Roma fail to complete primary school.1[19] The result is that only less than one percent reach secondary school or university.

More significantly, as many Roma children lack proficiency in Slovak and receive no encouragement from their parents, they are often sent to special schools or schools for the mentally handicapped, further exacerbating their marginalization in the educational system.

2.1.3 Employment

Due to generally poor education and lack of professional qualification Roma find it difficult to compete successfully in the labor market. The official number of unemployed Roma by the end of 1996 was 62,532.2[20] Because estimates of the total number of working age Roma varies greatly, and because an unknown number have been removed from the employment registration, the unemployment level cannot be broken down into a precise percentage. In several eastern communities the level has been nearly 100%. It is estimated that in some regions the Romany unemployment level reaches 80%, compared to the national average of 14%.2[21] Perhaps more significantly, a large number of Roma are not registered in regional labor offices, do not receive unemployment benefits, and fall below the official basic social support level.2[22]

2.1.4 Housing/Residence

One of the chief goals of the former communist regime's assimilationist approach to Romany issues was urbanization,2[23] the consequences of which are strongly felt today. By these policies, Roma previously accustomed to living in their own communities were forced to move to cities and villages and abandon for the most part their traditional way of life. The forced socio-cultural integration2[24] of Roma almost brought the traditional social hierarchy of Roma communities to an end. As their cultural lifestyle was not compatible with such urbanization, some demolished their new living space. This in turn exacerbated resentment at the seemingly favorable treatment granted to Roma.

Roma are now discouraged from moving towards urban employment centers through the use of location-specific residence permits. Further, their reputation for abusing flats and housing leads to discriminatory practices by local housing authorities. Roma are expelled from their homes or live under the threat of expulsion by local and regional authorities, and have difficulties registering their permanent residence.

Slovakia's chronic housing shortage combined with local initiatives to remove from town centers those delinquent in rent (many Roma) make life all the more difficult for many Roma. Slovak authorities have begun to crack down on individuals and families without legitimate local residence permits for the flats in which they live. This is one method of removing them from urban centers. Those already living on the outskirts of towns and villages are often without electricity, water or both. Sanitation services in such settlements are minimal. It is not uncommon for three-room apartments to be occupied by three Roma families, each with more than six members. Others are forced by the circumstances to squat in abandoned apartments which are either condemned or are publicly-owned buildings awaiting sale to private bidders.2[25]

In Slovakia, official permanent residence determines where social benefits may be enjoyed: education, social welfare, etc. (See section 5 of this report). Every Slovak citizen must have an official identity card which certifies his or her legal domicile in a particular municipality. While this may appear consistent with Europe-wide standards, in practice the procedure is complicated by requirements for difficult to procure documents: landlord's approval, health certificates, etc. Landlords assume an obligation under Slovak law to find substitute housing in case of eviction, and many are reluctant to assume such responsibility on behalf of a Roma tenant, who are difficult to relocate. Without such permission, it is not possible to register in a given city, placing a formidable obstacle for Roma desiring to move to urban job-centers. This despite Article 23(l) which guarantees freedom of movement and residence. Roma have been illegally blocked by city administrations from resettling, even when they have obtained the necessary documents.2[26] Significantly, the recent Government Resolution identifies "problems of permanent residence registration" as one faced by Roma.2[27] Methods of solving these problems are not yet articulated, however (see Section 4 of this report).

3. Discrimination

Whether Roma are marginalized from main-stream Slovak society is not questioned by many. The more relevant questions are to what extent this is caused by or leads to discrimination. Certainly, dialogue between the Roma and the majority population and government is limited, foremost by a lack of a coherent voice from the Roma themselves. While Roma in many respects have preserved their customs and way of life, this has come at a great price with respect to their acceptance by the majority population. For many in the rest of the population, the gypsy identity is boiled down to laziness, high rates of reproduction and criminality, with the occasional musician thrown in for good measure. As an easily-identifiable ethnic group, discrimination is made all the easier, and the battle over whether these stereotypes are self-perpetuated by the Roma themselves has been raging for ages. Discriminatory hehaviors and practices are often difficult to monitor and document, and even harder to prove in court.

The fact remains that there are major differences in the levels of education, prosperity, health, and welfare between the Roma and their fellow citizens. Conversely, the majority views the Roma as long enjoying positive discrimination under the communist regime, jumping to the front of the queue for hard-to-obtain flats, for example, and lack any sympathy for the Romas' present socio-economic situation, purported to be mostly self-inflicted. In the context of the 1951 Convention discriminatory measures per se do not amount to persecution, unless they lead to consequences of a substantial prejudicial nature for the persons affected.

3.1. Racially-motivated acts

Anti-Roma discrimination and racially-motivated violence in Slovakia has increased significantly over the last two years.2[28] Roma, as well as some foreigners in Slovakia, are often the object of physical violence at the hands of skinheads and in some instances also police officers. Police have often failed to investigate and detain the alleged perpetrators of racially-motivated attacks. Such instances have been minimalized, and not recognized as having a racial motivation. Legal remedies are often beyond their grip, as many lawyers are reluctant to take such undesirable and indigent clients2[29]

According to official figures, there were 19 racially motivated assaults in Slovakia in 1996, the majority of them against Roma. Other sources place the figure much higher. The US State Department reported that skinheads were responsible for the deaths of three Roma in 1995-6.3[30] It must be noted that police in practice rarely add the charge of racial motivation, even in connection with a skinhead attack on Roma. Roma face difficulties reporting such crimes to the police and the courts, and so turn to international and non-governmental organizations.

On April 2, 1997, the Slovak President issued the following statement on expressions of violence in Slovakia:

"Slovak President Michal Kovac monitors with concern the growing expressions of violence in our country, particularly violence evoked by differences in opinions and racial intolerance. Recently, groups of skinheads repeatedly attacked our Romany fellow-citizens, causing, death or inflicting serious bodily harm upon innocent people. Public appearances, evoking symbols of the Nazi regime, joined the expressions of violence. In the second case, it is probably an unawareness of modern history, including all the evil the Nazi regime, which, motivated by political and racial hatred, caused to millions of its victims. Imitating symbols of that era, young people obviously do not know what are they doing. However, acts of violence against the Romany minority must be seen through general savagery of manners, reflecting everyday life and, unfortunately, intolerant attitudes and hostile feeling, cultivated at public rallies organized by some political parties. The Slovak President is convinced that the police will take adequate steps against criminal offenders, abetted by hate and intolerance3[31] However, the most of all he trusts that our public will lift up its voice against such negative phenomena in our society and that its attitude will contribute to favorable development in relations between citizens and groups of inhabitants in our country."

Examples of well-documented racially-motivated attacks include one that occurred in July 1995, when some 30 skinheads rampaged through the central Slovak town of Ziar nad Hronom, physically and verbally attacking, Roma inhabitants at random. The evening culminated with the severe burning of one 18-year old Roma, Mario Goral, who died I I days later of his injuries.

Other incidents have attracted the attention of human rights monitors, and the US State Department. In April 1996, three serious incidents took place: A Roma house was set on fire killing Jozef Miklos and injuring three other Roma in the town of Hontianske, Nemce. According, to witnesses, the mayor was unwilling to call the police to intervene; a Roma man suffered burns when three men threw a bottle of flaming liquid into his house in Zaliste after having assaulted him and four other Roma; and in Topolcany a group of skinheads attacked mentally disabled Romani children from an orphanage attending a hockey game, yelling "we will kill all gypsies."3[32]

3.2. Skinheads

Numbering a few hundred,3[33] Slovak skinheads have been physically and verbally abusing Roma since the end of the communist regime, and official responses to these attacks have been minimal, and in some cases, inflammatory.3[34] Physical attacks have taken place throughout Slovakia. Skinhead attacks against Roma are a serious and growing problem, and police remain reluctant to take action.3[35]

Skinheads have been associated with the deaths of several Roma (described in part in section 3.1), the most publicized being the above-mentioned murder of Rom Mario Goral in 1995. Several other Roma have been murdered by skinheads, most recently a Romani man was beaten to death by skinheads in August 1997 in his home in Banska Bystrica.3[36] According to information from the local Roma community, in the past five years in the town of Prievidza alone, skinheads attacked Roma on 54 occasions, but charges were only once brought against alleged perpetrators.

While it is commonly accepted that skinhead violence is on the increase in Slovakia, Slovak authorities remain reluctant to acknowledge the phenomenon, often characterizing skinhead attacks as "bar-room brawls." Perhaps most symbolic is the attendance at a skinhead funeral by Jan Slota, the Head of the Slovak National Party, a member of the ruling coalition.

3.3. Police

In general, recourse to protection from the police is not considered by Roma nor Roma experts to be a plausible alternative: police are perceived -- correctly in some instances -- to at least passively and even actively cooperate with hatred groups such as skinheads, and use counter charges to pressure Roma victims of police brutality to drop their complaints. Roma experience unequal treatment before the law as well as disproportionate abuse and discrimination by authorities. In any case, the police have failed to protect the Roma community adequately. Roma often complain that the police are slow to react -- or do not react at all -- in cases where Roma were victims of violence and other crimes.

In one documented case a Rom alleged that he was beaten by police and forced to sign a confession that he had committed a murder. He was sentenced to 18 months' imprisonment but later released. In addition, medical doctors and investigators have been accused of cooperating with the police by refusing to describe accurately the injuries involved in a skinhead attack or a police beating, as reported by the US State Department in 1996.

According to para. 65 of the UNHCR Handbook:

"Persecution is normally related to action by the authorities of a country. It may also emanate from sections of the population that do not respect the standards established by the laws of the country concerned.... Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection."

Slovak authorities have in many cases proven unable or unwilling to offer effective protection.

4. Enjoyment of Citizenship Rights

Another factor to consider in assessing a claim is whether the asylum seeker possesses a citizen's identity card. Possession of an international travel document issued by the Slovak Republic is not sufficient evidence that the holder enjoys the rights associated with Slovak citizenship. For full entitlement to social and economic rights and benefits, the Slovak citizen must be in possession of a citizen's identity card ("obciansky priukaz"), The international travel document, or passport, does not serve as a substitute, To obtain the identity card, the citizen must have a "permanent domicile." Briefly, this means that a citizen, in order to register with the local municipality and receive an identification card, must show, inter alia, that she owns the residence or has permission from a landlord to live on the premises. According to Slovak law, the landlord thereby assumes the duty to provide alternative housing should he desire to sever the lease. Another provision is that there has to be a minimum amount of living space for each inhabitant of a flat. For Roma, these requirements can be difficult to meet. Failure to meet these requirements means they cannot receive an identification card, and as almost all citizenship rights are tied to possession of the identification card, lack of a permanent domicile means that the citizen may be denied his civil, political, social and economic rights. Rights affected include voting, petition, association, travel within the country, marriage, birth & death registration, employment and legal payment of taxes. This holds true even if the citizen possesses a valid Slovak passport, as the Slovak passport is only required for travel out of the country, and does not serve as a valid alternative proof of permanent domicile in Slovakia necessary to enjoy the above-mentioned rights. An undetermined number of Roma refused Czech citizenship and are considered as Slovak citizens, but without identity cards, these persons in effect have no citizenship rights.3[37]

5. The Legal Framework & Government Measures

Three trends have been identified characterizing the relationship of Roma to the Slovak state. In the first place, competent authorities often deny that the rights of Roma have been violated, even if there is convincing, evidence that violations have indeed taken place. Secondly, there are presently exclusionary legal, administrative and social practices that prevent Roma from joining the mainstream of Slovak society and keep them marginalized. Finally, there are long-term historical patterns, daily consciously or unconsciously reenacted, whereby the Slovak state intervenes as a caretaker state, effectively demoralizing Roma through paternalism and pressure toward a kind of neutralized conformity.3[38]

The government continues to provide funding for cultural, educational, broadcasting and publishing activities for the major ethnic minorities, but at greatly reduced levels,3[39] with the Romany issue remaining low on the political agenda. While the Slovak Constitution provides for fundamental civil and political rights, the legal framework for the protection of civil and political, let alone minority, fights is severely flawed. While it exists on paper, in practice little defense from official incursions on so-called constitutional rights is legally guaranteed. For example, so-called constitutional rights may be modified by simple parliamentary majority (50%), thus enabling the limitation of constitutionally-guaranteed freedoms (adopted by two-thirds majority). In addition, the present government has exhibited a tendency to ignore rulings of the Constitutional Court it finds unfavorable.4[40] The legal status of persons belonging to national, ethnic or linguistic minorities is guaranteed in Articles 33 and 34 of the Constitution. As stated repeatedly by the present government, minority rights are recognized neither by Slovak legislation nor by international documents ratified by the Slovak Republic.4[41] This could be regarded as the assumption behind the current approach: Respond to specific problems -- housing or unemployment - rather than address the minority as a whole.

"The Principles of the Government Policy Towards the Roma," no. 153, 9 April 1991 ("Principles") prepared by the former government in 1991 was the first attempt at a comprehensive approach and it set out the following principles: 1) Equality of Roma with other national communities living on the territory of the Slovak Republic-, 2) Equal treatment in the social sphere, giving Roma equal rights as state citizens terms of social security; and 3) The Slovak government canceled the central control of solutions to Roma problems implemented during the communist era and transferred these powers and responsibilities to city councils.

In the cultural sphere, the Principles made it possible to earmark financial means to support the higher culture activities of Romany cultural unions, folklore ensembles, periodicals and radio & television broadcasts. There are some new initiatives in the Slovak Republic which could improve the situation of the Roma in the future: the Department of Romany Culture in Nitra, with a pedagogical orientation, Also, the Foundation for Romany Children was founded in 1991 to support talented Romany students. The government-supported Romathan Theater in Kosice has been in operation for several years. However, programs directed at less-educated Roma are lacking, such as health information, legal assistance and popular culture magazines and programming. Concerning higher education, the Principles were more successful, leading to the establishment of a Department of Romany Culture in Nitra, postgraduate study of Romany language in Presov, among others.4[42] Nevertheless, less than one percent of Romani children continue on to gymnasium, and naturally therefore the number in high schools is even lower. The implementation of the principles itself is a long-term process, and little has actually been done to combat the problem at the root of all others: prejudice against Roma among the majority population.

Local initiatives have not always been to the benefit of Roma, and at times have threatened to curtail their fundamental rights and freedoms. For example, on 1 June 1993 an ordinance on the decrease of crime was adopted by the village of Spisske podhradie. This ordinance referred explicitly to "citizens of Roma origin and other suspicious persons." This broadly discriminatory ordinance -- supported by representatives of ten other villages and towns in the Spis region -- forbade these persons from leaving their homes at night and allowed members of the city police to enter private houses of Roma citizens. The implementation of the ordinance was halted by the district attorney, and on 15 June 1993 the National Council of the Slovak Republic declared it void. There have been more recent initiatives taken by local governments with similar negative consequences. In the towns of Nagov and Rokytovce, their respective councils in June and July 1997 passed ordinances "forbidding Roma to enter the respective towns. In case they do, citizens are entitled to remove them."4[43] These ordinances are yet to be challenged by central authorities.

As reported by the media, high officials and even the prime minister have made statements recognized by the general populace as anti-Roma. For example, Jan Slota, leader of the coalition partner Slovak National Party gained notoriety for his racist statements.4[44] Vladimir Meciar, the present Prime Minister of Slovakia, referring to the higher birthrate among Roma among Roma than among "whites," Meciar in September 1993 told a crowd in Spisska Nova Ves in central Slovakia that:

"...the prospect is that this ratio will be changing to the benefit of Romanies. That is why if we don't deal with them now, then they will deal with us in time... Another thing we ought to take into consideration is an extended reproduction of the socially unadaptable population.... Already children are giving birth to children -- poorly adaptable mentally, badly adaptable socially, with serious health problems, who are simply a great burden on this society."4[45]

Perhaps due to the inadequacy and failure of local initiatives, the decentralized approach has been put aside by the central government in favor of another centralized approach. The 1996 "Resolution of the Government of the Slovak Republic to the Proposals and Measures in Order to Solve the Problems of Citizens in Need of Special Care" ("Resolution") attempts to delineate centralized strategy to resolving problems faced by "citizens in need of special care,"4[46] generally understood to refer to Roma, but on paper also addresses other needy persons in society. The Resolution describes various problems associated particularly with Roma, followed by measures to address these issues. Issues addressed by the Resolution are: 1) Pre-schooling and Schooling of children; 2) Employment; 3) Housing; 4) Education; 5) Hygiene & Health; 6) Negative Social Behavior-, and 7) Organization and Material Support. While this Resolution is ambitious in identifying "problems," it has met with much criticism from human rights and Roma activists. The tone of the text is revealing. Romani families are " not interested in solving their own housing problems." Pregnant Romani women lead a "bad way of life." Roma are responsible for "the devastation of houses." Areas of Slovakia are characterized by "backward Roma, high unemployment, high criminality, etc." Roma are referred to as "socially unadaptable." As pointed out by the European Roma Rights Center, many of the remedies for these social problems tend towards exclusion: "alternative classes," "special teaching," and "special classes" emphasizing "traditional crafts." As pointed out by one international human rights organization, "Roma are to receive basket-weaving classes in exchange for their unemployment."4[47]477The government, adverse to measures that appear to confer "minority rights," identifies specific problems and solutions, but backs away from taking a comprehensive approach to the Roma minority itself

Despite the fact that Roma groups are almost uniformly criticizing this resolution as not taking into account the full range of Roma organizations, characterizing it as patronizing and unrealistic, inter alia, the Slovak government is going ahead with plans for its implementation, and recently adopted a program in November 19974[48] to implement the Resolution. Some Sk 1. 6 billion (USD 53.3. million) have been earmarked to finance these measures through 2002. Mr. Jozef Kalman, Vice-chairman of the Slovak Government for Social Development, National Issues and European Integration, and the Chairman of the Government Council for National Minorities, heads one of two government bodies dealing with Roma questions ("Council"). This body makes recommendations for government approval. The second structure is the Plenipotentiary of the Slovak Government for the Solution of Problems for Citizens who Require Special Help, headed by Branislav Balaz, Ministry of Labor, Social Affairs and Families.

One criticism of the Principles (and the Constitution) that also holds true for subsequent measures is that the publishing of legislative materials creates only a precondition for the improvement of conditions for Roma, and is not in itself an improvement. Plans for improving the "Roma problem" are more effective in conveying an impression that concrete steps are being taken, rather than actually taking them. Empowerment of the Roma themselves is another approach absent from the various government proposals and programs. In these centralized approaches, Roma are rarely directly given the means to address their own problems, as all approaches involve significant official intermediary administration. Given the relatively weak political situation of Roma, regular mechanisms for incorporating feedback and initiatives from the Roma are wanting. Some Roma from some political parties are consulted from time to time, while those from parties not considered friendly to the government may be left off of planning committees.

6. Roma Organizations

The number of active Romany political parties in Slovakia today numbers between 13-15, although the number of significantly active parties is less than five. These parties have little influence on policy making, and none have been represented in the National Council of the Slovak Republic since 1993. Cooperation among the parties is minimal, and in fact competition among the parties muffles the effects of any initiatives taken by any single party. Appointed spokespersons for the Roma community have had little success, as they lack a mandate from the Roma at large.

The Party of Roma Intelligentsia for Coexistence appealed to Slovak Parliament to take steps to avoid ethnic and racial conflicts, and circulated a petition alleging that the human rights of ethnic minorities in Slovakia are violated. Social tension has led to racially motivated attacks with Roma as the main target. Moreover, there is a growing tendency to establish "cultural, language and social ghettos. " Participants called for a referendum on direct presidential elections and for lifting parliamentary immunity from Jan Slota, leader of the Slovak National Party, and subject him to legal proceedings for his racist statements. About 50-60,000 have already signed a petition calling for the removal of his immunity.

There are reportedly between 30 and 40 non-governmental Roma organizations. However, most of these are registered on paper only, and have little to do with the improvement of conditions for the Romany population as a whole. Reflecting the lack of development in the NGO sector as a whole, only a handful of organizations is devoting the majority of its activities to improving the lot of Roma in Slovakia, and the assistance tends to be localized rather than country-wide.

While there have been various international initiatives aimed at easing the plight of Roma in Slovakia, the day to day life of Roma has for the most part remained untouched.

7. Analysing the Basis for the Claim of Persecution

On the basis of the foregoing information, while there should not be prima facie acceptance of status, it is clear that Slovak Roma may well be able to substantiate refugee claims based on severe discrimination on ethnic grounds. The fact that the reasons for their departure from the Slovak Republic also include economic elements does not mean that their refugee claims hold no merit. As stated in para 63 of the UNHCR Handbook "The distinction between an economic migrant and a refugee is, however, sometimes blurred in the same way as the distinction between economic and political measures in an applicant's country of origin is not always clear. Behind economic measures affecting a person's livelihood there may be racial, religious or political alms or intentions directed against a particular group. Where economic measures destroy the economic existence of a particular section of the population (e.g. withdrawal of trading rights from, or discriminatory or excessive taxation of, a specific ethnic or religious group), the victims may according to the circumstances become refugees on leaving the country."

Asylum claims of Slovak Roma must be assessed individually to establish if the discrimination experienced amounts to persecution. Such an assessment should be made based on the nature of the discriminatory treatment encountered, the persistence of such discriminatory actions, and the severity of the consequences on the applicant or on his or her family members. Where the consequences threaten the applicant's right to life and liberty, this would be considered as severe, similarly, where the applicant's right to earn his or her livelihood is seriously threatened, this would also be considered as severe. In this context, the lack of an identity card is not itself sufficient to be considered as persecution, but this together with other discriminatory acts may cumulatively amount to persecution if the consequences affect the applicant or his/her family members severely.

Where it is assessed that the discriminatory actions amount to persecution, unless otherwise proven, it may be assumed that there is a lack of protection by the authorities and inability of the individual to access remedial measures. In examining this issue, whether and how the applicant had sought remedial measures may well be less important than the reasonableness of the applicant not having pursued such measures. As indicated in this paper, legal and political attempts to improve the situation of the group have been more formal than real and seem to have resulted in increased marginalization of the group as well as intensified public resentment against them. In addition, as stated in paragraph 5, despite the "guarantees" for minority groups contained in Arts. 33 and 34 of the Constitution, the present Government has stated "repeatedly" that "minority rights are recognized neither by Slovak legislation nor by international documents ratified by the Slovak Republic." Furthermore, "the present government has exhibited a tendency to ignore rulings of the Constitutional Court it finds unfavourable. "

8. Treatment of Rejected Roma Asylum Seekers

Before returning a rejected Roma asylum seeker to the Slovak Republic, the government should take into account the residency issues discussed in this paper. If the persons in question sold their home or apartment, for example, they may no longer possess the permanent domicile necessary to renew the citizens identity card. Returns should be monitored, and the personal data of asylum seekers transmitted to Slovak authorities only after a final negative decision is taken.

UNHCR Position Paper regarding Treatment of Asylum-Seekers originating from Eastern Slavonia

I. Introduction

1. Continued movements of ethnic Serbs out of Eastern Slavonia to the Federal Republic of Yugoslavia and elsewhere abroad have triggered a request to UNHCR to provide guidance on how to deal with asylum applications which have been or may be lodged by these asylum-seekers. It has been observed that many of those seeking asylum have travelled holding valid Croatian passports. Some have also transited through Belgrade, prior to proceeding to their final destinations abroad.

2. UNHCR believes that the automatic grant of refugee status, without an examination of the individual facts underlying each claim, is not justified by the factual situation, is I\nappropriate and would create the risk of accelerating movements. Nevertheless, harassment, discrimination and inequalities as regards property and other issues do characterize the every-day life of many Serbs in Eastern Slavonia. It is a judgement to be made in each case whether such harassment and discrimination are so severe on a cumulative basis as to amount to "persecution" and, hence, warrant the grant of refugee status. UNHCR encourages States, when carrying out an individual analysis of asylum claims, to look carefully at whether instances of cumulative discrimination, in a situation where the country of origin has been negligent in taking remedial action or may be seen as having condoned or encouraged such discriminatory action, should be interpreted as persecution within the terms of the 1951 Convention.

II. Background

3. The Basic Agreement on the Region of Eastern Slavonia, Baranja and Western Sirmium ("Erdut Agreement") was signed on 12 November 1995 by the Croatian Government and local Serb leaders (and witnessed by the U.S. Ambassador and the United Nations Mediator). The Erdut Agreement called on the UN Security Council to establish a United Nations Transitional Administration to govern the region during a transitional period, following which what is today called the "Croatian Danubian region" would revert to full Croatian authority.

4. The Erdut Agreement also set out the undertakings of the Croatian Government vis-à-vis Croatian citizens of Serb ethnicity and recommended, inter alia, that the following tasks be undertaken during the transitional period: the demilitarization of the region, respect for the rights of the inhabitants to remain in the region or to return to their former home areas, resolution of property issues and the holding of local elections. It was hoped that full implementation of the Erdut Agreement, including respect for the right of Serbs to remain in the Croatian Danubian region or return to former home areas, would build confidence in the process of peaceful transition and thereby limit the number of people leaving the region. The United Nations Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium (UNTAES) concluded its mission on 15 January 1998.

III. Population Movements during the Period of UNTAES' Administration

5. While all observers agree that UNTAES accomplished its mission with distinction, it is equally true that there were movements of people out of Eastern Slavonia during the period of international administration, albeit in smaller numbers than initially anticipated. Throughout 1997, for example, there were movements of ethnic Serbs out of Eastern Slavonia, principally into the Federal Republic of Yugoslavia, but also to Bosnia and Herzegovina and other countries abroad. At the same time, some 9,000 to 10,000 displaced Serbs from Eastern Slavonia moved back to their homes in other areas of Croatia. The largest number of movements from Eastern Slavonia abroad were witnessed between November 1996 and February 1997. During this period, UNTAES Border Monitors registered over 30,000 individuals leaving to the Federal Republic of Yugoslavia. It was later observed, however, that many of those departing either returned to Eastern Slavonia and/or maintained their house/dwelling or direct family links there. This indicated a desire to set the stage for long-term departure while remaining present and able to monitor developments.

6. Movements in late 1996 and early 1997 can be attributed to a number of factors which created a general state of apprehension and uncertainty:

• Uncertainty about whether UNTAES would extend its mandate for a second year.

• The fact that Serb displaced persons had been unable to return to former home areas owing to the lack of return mechanisms and restrictions on travel into and out of the region.

• The predominant view among the population that fair and equal elections (which did take place in March 1997) would not take place.

• Alarming rumours that the Federal Republic of Yugoslavia would close all bridge links with the region.

7. The March 1997 elections marked a sharp decline in the number of departures to the Federal Republic of Yugoslavia. Most adults were allowed to vote in the elections. The Serb party won 11 municipalities in Eastern Slavonia. In addition, most residents and displaced persons received their Croatian documentation and the tension and anxiety of the Serb population substantially lessened.

8. During 1997, the Government of Croatia also took a number of additional positive steps. A mechanism was established in an agreement between the Government of Croatia, UNTAES and UNHCR to facilitate the so-called two-way return process into the Croatian Danubian region and out of the region to other parts of Croatia (Joint Working Group Agreement on Returns). On 7 October 1997, the Government of Croatia launched a Program on the Establishment of Trust, Accelerated Return, and Normalization of Living Conditions in the War Affected Regions of the Republic of Croatia. Amongst its stated goals are the creation of a general climate of tolerance and security; the realization of equality of all citizens ( ... ); and the speedy and organized return of all Croatian citizens to those regions of Croatia from which they were expelled or displaced. Nevertheless, movements from the Croatian Danubian region, principally to the Federal Republic of Yugoslavia, continued on a small scale throughout the year. The above measures were essentially targeted at the Croatian Danubian region by the authorities and failed to result in an increase of repatriation to Croatia, notably from the Federal Republic of Yugoslavia. The Government has repeatedly stated that any organized repatriation movements of ethnic Serbs into Croatia should occur on a small scale so as not to generate fear in the Croat community or lead to disturbances. As a result, no concrete measures have been introduced to facilitate repatriation of ethnic Serb refugees from abroad.

III. More Recent Population Movements

9. As the date of the conclusion of UNTAES mandate drew near, however, departures increased in November and December 1997 and in January 1998. These departures may be explained by a number of factors which, in combination, have worked to create a general state of apprehension and anxiety, and led the local Croatian Serb population to believe that the authorities are discriminating against them and are not genuinely committed to protecting their rights. A significant factor is the full assumption of Croatian sovereignty over the Croatian Danubian region at the end of the UNTAES mandate on 15 January 1998. It had already been anticipated that completion of the UNTAES mandate would inevitably lead to some departures.

10. Amongst other factors underpinning the most recent movements are insufficient progress in addressing the legal (especially property and tenancy rights issues), procedural and financial obstacles standing in the way of the two-way return process out of the Croatian Danubian Region to other parts of Croatia; the increasingly precarious situation of Serb displaced persons in the Croatian Danubian region combined with growing concerns about security, and uncertainty about the application of the Amnesty Law.

A. Housing and the Two-Way Return Process

11. The authorities have failed to demonstrate their commitment to facilitating the return of Serbs out of the Croatian Danubian region to other parts of Croatia. The Joint Working Group (JWG) Agreement on Return led initially to positive results by resolving the so-called "easy cases" (e.g. situations of family reunion or of people returning to their own unoccupied inhabitable dwellings). Little concrete progress has been made, however, in resolving the so-called "difficult cases" (e.g. return to damaged or destroyed property, or return to occupied property). Applications for return often take months to process. Faced with delays in addressing their concerns and seeing the prospects of returning under the JWG Agreement on Return as increasingly remote, a growing number of families belonging to the "difficult" categories opted to leave the Danubian region to the Federal Republic of Yugoslavia or to return unassisted ("spontaneous returns") to other parts of Croatia and stay with friends or relatives. Despite commitments to the international community by the Government of Croatia that such spontaneous returnees would enjoy treatment comparable to that of those returning formally under the JWG procedures, spontaneous returnees to other parts of Croatia have been facing the most serious administrative obstacles. In addition, despite having returned to their former home areas, such spontaneous returnees see the possibility of rebuilding their damaged property or repossessing their presently occupied homes as increasingly remote.

12. Serbs leaving the Danubian region to reoccupy their homes in other parts of the country have met, inter alia, the following obstacles directly attributable to the authorities: no official action to resolve the problem of temporary occupancy of homes in favour of the original owner; delays in providing financial assistance to which they are entitled, as well as necessary personal documentation; and inefficiency of the judicial system in addressing claims lodged by them. Spontaneous returnees have been plagued the most by these obstacles, although they have been also experienced by people whose return had been formally cleared under the JWG procedure.

13. Commenting on progress in the two-way return process formally initiated in April 1997, the Report of the Secretary-General on the United Nations Transitional Administration for Eastern Slavonia, Baranja and Western Sirmium. of 22 January 1998 noted that "while some progress has been made in facilitating the return of displaced persons to their homes, the process has been increasingly limited by continued legal and financial obstacles to the return of occupied property to its legal owners, delays in providing Government funding for the reconstruction of houses owned by Serb citizens and uncertain economic and social conditions in areas of potential return." (S/1998/59, para. 14) The Secretary-General also observed that, "Despite repeated calls by the Security Council, no progress has been achieved in establishing concrete mechanisms for returns to occupied property, or in resolving the issue of lost tenancy rights for Serb citizens." (S/1998/59, para. 14)

14. Energetic and effective action by the Croatian authorities on the above issues is therefore deemed necessary to speed up the two-way return process and restore the confidence of the ethnic Serb community. The Secretary-General reported that "so far most of those leaving the region are displaced persons with outstanding property claims which were not addressed by the Government. In many instances, liens have been placed by courts against properties elsewhere in Croatia owned by Serb displaced persons who are currently residing in Croat houses in the region, thus making it impossible to sell these properties while their cases are pending." (S/1998/59, para. 15) In a joint letter to the President of the National Committee for the Establishment of Trust of 19 December 1997, UNHCR Chief of Mission Robinson and Transitional Administrator Walker also noted that, "Although some assessments of damaged homes in other parts of Croatia are taking place, only a handful of displaced persons from the UNTAES region have been given cash grants for reconstruction of slightly damaged homes and there has been no progress on more seriously damaged homes." The letter went on to express concern that the actual deadline and procedures for regional reconstruction applications are unclear and cause further uncertainty about this process.

B. Security

15. Ethnic Serbs, both in the Croatian Danubian region and elsewhere in the country, are also increasingly concerned about threats to their security. Return movements which have occurred out of the Croatian Danubian region to other parts of the country have not been without incident. The UNHCR Field Office in Knin reported a number of incidents which occurred in the period from 30 December 1997 to 15 January 1998. For example, two inhabitable houses of Serb returnees exploded in the village of Crno near Zadar. An elderly Serb woman was attacked by Bosnian settlers who wished to move into her house in the village of Zagrovic near Knin. On 25 January, the HINA news agency reported that the Serb community had issued a statement on attacks on Serb returnees and elderly people who remained in the areas of Banovina and Lika (former UN Sector North).

16. The situation of Serb displaced persons still in the Croatian Danubian region has been described as "precarious" in the report of the Secretary-General and is deemed to be serious in light of the numerous documented incidents of harassment and evictions by Croat displaced persons wishing to reoccupy their homes. Serb displaced persons in particular feel pressure to leave their present accommodation to make way for former Croat inhabitants. Illegal evictions of Serb displaced persons or refugees occupying houses or apartments emerged as a major threat to public order during the first two weeks of 1998. Increased tension and a higher number of security incidents, the majority of which occurred over the weekend of 17 and 18 January, were reported. The worst of these was an incident in Grabovac (near Beli Manastir in Baranja) where a 77 year old Serb displaced person was shot to death.

17. On 10 January 1998. UN Transitional Administrator Walker made a statement to the press expressing deep concern over spontaneous attempts by Croat displaced persons entering the Croatian Danubian region and retaking possession of their pre-war homes. Government authorities reacted energetically to these evictions by issuing regulations and orders to the police and other relevant authorities. Police also received instructions to intervene if the verbal harassment of owners against occupants were to be considered threatening. On 16 January 1997, President Tudjman made a statement to the effect that the authorities would "not allow any acts of individuals who would jeopardize state politics and the interest of peace and that "nobody, including the rightful owner, is allowed to take law into his own hands and evict tenants without proper procedures. "Meeting on 19 January 1998, the Defence and National Security Council chaired by President Tudjman "strongly condemned the incidents."

18. According to the report of the Secretary-General, "Despite assurances provided by Government officials to UNTAES that Serb displaced persons will be able to stay in the houses they are now occupying, many Serb displaced in the region have been harassed by Croat house owners telling them that they must vacate the houses by 15 January 1998." (S/1998/59) Hate mail, telephone harassment and personal intimidation of Serbs by Croats increased following the easing of access to the region. In a much-publicized case, a 67 year old Serb woman in Tovarnik suffered a broken rib and nose on 28 January at the hands of a relative of the owner of the house which she was occupying. On 23 January 1998, a Commission established in line with Article 11 of the Erdut Agreement expressed concern that "certain events -- threats, harassment and evictions -- could jeopardize the continuation of the peaceful reintegration of the region and fully supported the efforts of the Government of Croatia to maintain the stability in the region, noting specific action to avoid evictions."

C. Discriminatory Practices

19. Cases of obstruction in issuing citizenship, pension and birth registration documents have been reported, mainly at the local level. Furthermore, despite the statements and actions of the Croatian authorities to address the legitimate security and other concerns of the local Serb population, many Serbs feel that the authorities are more keen on addressing the situation of Croat displaced persons than their own. This perception was confirmed by the promulgation of an Executive Order on Renting Apartments under the Ownership of the Republic of Croatia in the Croatian Danubian Region of 22 January 1998. The order came into effect of 27 January 1998 and would allow the mainly Croat occupants of State-owned apartments in Eastern Slavonia to reclaim their property by 15 March 1998. The current Serb occupants would have to leave within 8 days to temporary accommodation in areas where they lived before the war or other parts of Croatia. The Executive Order, which UNHCR has learned will be abolished on 12 February 1998, drew sharp criticism from international representatives in Zagreb as well as from Serb leaders who described its terms as being "selective" and "discriminatory.

D. Availability of National Protection

20. The Secretary-General's report also referred to "the number of reports involving allegations of misbehaviour and unprofessional conduct by some police officers" (S/1998/59, para. 17). As mentioned earlier, Government authorities reacted energetically to evictions in the Croatian Danubian region by issuing regulations and orders to the police and other relevant authorities. Police also received instructions to intervene if the verbal harassment of owners against occupants were to be considered threatening and did so on a number of occasions. Yet Croatian Serbs are convinced that the authorities have, at best, been negligent in providing protection and meeting their concerns and, at worst, have tolerated acts of harassment by civilians and official inaction to meet their legitimate security and other concerns.

E. Amnesty Legislation

21. Uncertainty about the implementation of the Amnesty Law has continued to cause anxiety among local residents. To allay these concerns, the Minister of Justice publicly restated that there are no "secret war criminal lists." Notwithstanding, the Government has yet to conclude investigations of alleged war crimes with the participation of the local Serbs and the United Nations. This situation has contributed to the sense of insecurity felt by some inhabitants of the Croatian Danubian region. In the context of refugee status determination, however, the commission, inter alia, of war crimes could be grounds for exclusion from refugee status.

IV. Conclusions and Recommendations

22. In light of the above considerations, UNHCR is of the opinion that, while not everybody leaving the Croatian Danubian region at this time has a valid claim to refugee status, some may indeed have a "well founded fear of persecution" within the terms of the 1951 Convention. As stated earlier, UNHCR believes that the automatic grant of refugee status, without an examination of the individual facts underlying each claim, is not justified by the factual situation, is inappropriate and would create the risk of accelerating movements. Nevertheless, harassment, discrimination and inequalities as regards property and other issues do characterize the every-day life of many Serbs in the Croatian Danubian area (and elsewhere in Croatia) and may be indicative of a wider and more deeply ingrained discrimination which may be attributable to the State.

23. It is a judgement to be made in each case whether such harassment and discrimination are so severe on a cumulative basis as to amount to "persecution" and, hence, warrant the grant of refugee status. UNHCR encourages States, when carrying out an individual analysis of asylum claims, to look carefully at whether instances of cumulative discrimination, in a situation where the country of origin has been negligent in taking remedial action or may be seen as having condoned or encouraged such discriminatory action, should be interpreted as persecution within the terms of the 1951 Convention.

24. UNHCR believes that many of those departing the Croatian Danubian region in possession of Croatian passports would face material and other hardship upon return, particularly if they have abandoned their previous dwellings in the region, but not necessarily face official obstacles to return. If ethnic Serb asylum-seekers from the Danubian region were occupying accommodation in the region which did not belong to them, they would have no accommodation to return to, nor could they return to their own homes in other parts of Croatia when such property is already occupied by ethnic Croat displaced persons or Bosnian Croat refugees. Return would therefore probably entail accommodation in collective centres, until such time as the Croatian authorities take action to resolve the many difficult issues highlighted in this note.

25. Bearing in mind the considerations contained in paragraph 24, UNHCR is of the opinion that, if asylum claims have been properly assessed taking into account cumulative persecution and bearing in mind that non-State agents can be agents of persecution in the sense of the 1951 Convention, rejected cases could be returned safely to Croatia. At this time, it is felt that the fact of their departure and attempt to claim refugee status would have no ramifications upon return.

UNHCR, 11 February 1998

In reaction to this and many other incidents, Marek Balaz, a Romani spokesman from the town of Prievidza. has said that if the state does not do something about skinheads in Slovakia, there will be a danger of civil war. Pravda reported on 31 December 1996. In a letter addressed to the government on 27 December, Roma announced that they will create militia to protect their families from attacks. They said they are prepared to die rather than give up their civic and human rights.