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Asylum procedures
The Istanbul Protocol in asylum procedures (1)
International bodies, such as the Committee against Torture and the European Court of Human Rights, place importance on medico-legal reports in the processing of claims for asylum. Despite this fact, there has thus far not been a significant increase in the use of thorough and well-documented medical examinations of asylum seekers. Practice shows that instead of viewing inaccuracies and inconsistencies as signs of possible medical complications due to acts of persecution, asylum claims are often rejected for being considered “inconsistent” and for that reason “manifestly unfounded”.
The Istanbul Protocol was drafted in the context of proceedings, in which one possible outcome was the bringing to justice of perpetrators. However, the medical aspects and considerations are useful within asylum procedures as well, and the Protocol makes an explicit reference to asylum determination procedures where it states that “the documentation methods contained in this manual are also applicable to other contexts, including [...] political asylum evaluations [...]" (2).
The value of the Istanbul Protocol for asylum procedures is threefold. First, it provides for guidelines regarding the circumstances in which an alleged victim of torture should and can be interviewed. Furthermore, the Protocol provides for guidelines for the performance of medical examinations and for their documentation. Lastly, it refers to the fact that medical examinations and reports help to assess the consistency between the medical findings and the account of torture, ill-treatment or trauma made by the asylum seeker in his claim for protection.
An early identification and documentation of medical complaints following torture or ill-treatment should, other things equal, result in: improved quality of the decision-making process based on increased and more professional information, and a decrease in subsequent procedures to correct previous incomplete asylum determination procedures. Positive side effects include the prevention of unnecessary health loss of the asylum seeker and possibly increased quality decision-making on the return of rejected asylum seekers.
The work of rehabilitation centres and medical groups on asylum claims
Several rehabilitation centres, organisations and medical groups make use of the Istanbul Protocol in their work with asylum seekers:
• The Medical Foundation in the UK holds extensive experience with regard to the use of the Istanbul Protocol in asylum proceedings. Many torture survivors are referred to the Medical Foundation by solicitors or legal representatives for a medico-legal report documenting any torture they have suffered. Doctors, community mental health teams, and refugee community organisations also refer cases. The Istanbul Protocol is scrupulously observed by Medical Foundation doctors who are trained in the correct way of presenting their findings in accordance with the Protocol. In 2005 the Medical Foundation produced 668 medico-legal reports.
An indication of the weight the British Home Office attaches to Medical Foundation reports is that any proposed negative decision taken with regard to an applicant who has presented one has to be endorsed by a senior official. In addition, a Home Office policy instruction states: "Where an applicant submits a report from the Medical Foundation which supports his account of torture, the fact that the applicant has been tortured should be accepted unless there are significant reasons for rejecting that conclusion despite the content of the report."
• The Medical Examination Group (MEG) at the Amnesty International Dutch Section was founded in 1977 and consists of 40 physicians. They carry out medical examinations of asylum seekers who claim to have experienced torture or ill-treatment in their country of origin. MEG doctors examine the physical/psychological complaints and sequelae of the alleged torture/ill-treatment. They are asked to give their interpretation as to the probable relationship of the physical and psychological findings to possible torture or ill-treatment. The medical examination is carried out at the request of the asylum lawyer and results in a report which can be brought into the asylum procedure. In this way medical examination can help the asylum seeker to substantiate his or her asylum claim.
MEG doctors work on a voluntary basis. They carry out the examinations in their own practice or clinic. When carrying out the examination and drafting the report, the doctors follow the MEG guidelines, which are based on the Istanbul Protocol. MEG doctors are offered trainings, amongst other things on the subjects of recognition and documentation of torture scars and interviewing traumatised persons.
Applications for medical examination are assessed by the Refugee Department of Amnesty International (Dutch section). The applicant must have been the victim of severe human rights violations and his or her asylum story must be credible in the light of Amnesty’s information on the specific country of origin.
Each year, the MEG receives about 100 applications, which result in 50-60 medical examinations. Most of the examinations take place after rejection of the asylum request. In approximately 50% of these cases, the asylum seeker is granted asylum in the end.
• Other groups and rehabilitation centres which hold experience in the field include the Centre for the Care of Survivors of Torture (CCST) in Ireland.
• Physicians for Human Rights USA carries out research and advocacy on the health and human rights conditions of refugee populations and has recently published a report called From Persecution to Prison: The Health Consequences of Detention for Asylum Seekers on the health consequences of detention for asylum seekers. Click here to download and read a summary of the report.
The CARE FULL initiative
Amnesty International in the Netherlands, Pharos and the Dutch Council for Refugees have in the course of 2006 conducted a project called “the CARE FULL initiative” which addresses (1) the relevance of medico-legal reports in asylum procedures (2) the promotion and the implementation of the Istanbul Protocol in EU countries, emphasising the relevance of the Protocol for asylum procedures.
With regard to this project the three organisations have published a reference book “Care Full – Medico-legal reports and the Istanbul Protocol in asylum procedures”. This book contains a.o. the results of a comparative research in 10 EU countries on the question whether and, if so, how medical evidence of torture influences national asylum procedures. It also contains the results of medical research on the different aspects of traumatisation and its effects on memory, concentration etc. as well as the effects of shame and guilt feelings on the possibilities of hearing and interviewing asylum seekers who are victims of torture.
An Expert Meeting was held in Amsterdam on the 14-15 November on the role and use of medical examinations and medico-legal reports in the asylum procedures within the EU. Medical and legal experts and representatives of professional organisations from different EU Member States discussed the different national laws, policies and practices with regard to medical aspects in asylum procedures. The aim of the meeting was to formulate common basic principles and recommendations regarding the use and role of medico-legal reports in asylum procedures. The meeting was intended as the starting point of a lobby campaign to enhance the role and use of medico-legal reports in asylum procedures throughout Europe.
For further information on the project, please contact Erick Vloeberghs (e.vloeberghs@pharos.nl) or Bernadette Hoekstra (Bhoekstra@vluchtelingenwerk.nl) of the Dutch Council for Refugees.
Read also the project's newsletter.
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(1) Amnesty International, Dutch Section; Care full – Medico-legal reports and the Istanbul Protocol in Asylum Procedures
(2) The Istanbul Protocol, introduction par. I
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