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Decision of Economic Court of the Commonwealth of Independent States

of September 11, 1996 No. C-1/14-96

Economic Court of the Commonwealth of Independent States in structure:

the chairman - the chairman of Economic Court Dashuk L. A.,

judges of Economic Court of the Apostle D.D., Bekenov of R. A. Vylkov I. K., Kerimbayeva A. Sh., Makhmudova L. Sh., Miroshnik V. I., Safiullina D. N., Simonyana G.V., Tolibov H.,

in case of Madudina T. I. secretary.,

with participation: general adviser of Economic Court Fisenko I. V.,

having considered case on request of the Executive Secretariat of the Commonwealth of Independent States on interpretation in proceeding in open court,

established:

On June 10, 1996 the Executive Secretariat of the Commonwealth of Independent States sent to Economic Court inquiry for interpretation of the concepts "refugee", "migrant", "displaced person" in relation to the Agreement on the help to refugees and displaced persons, the prisoner on September 24, 1993 in Moscow.

The letter of the President of the Republic of Kazakhstan N. A. Nazarbayev in which the question of discrepancies in interpretation of the concepts "refugee", "migrant", "displaced person" of official organs of the Commonwealth and mass media of the Commonwealth of Independent States is brought up formed the basis of the address. That circumstance that persons which were disposed from the Republic of Kazakhstan on arrival to the Russian Federation or the Azerbaijan Republic are quite often considered by Interstate statistical committee of the Commonwealth of Independent States as refugees and displaced persons though actually them are not is given as example. It creates misunderstanding and artificial difficulties in relations between the State Parties of the Commonwealth of Independent States.

Having heard, the judge-speaker Bekenov R. A., having analyzed the conclusion of the General adviser of Economic Court Fisenko I. V. and having researched the documents which are available in case, the Economic Court comes to the following conclusions.

Articles 1 and 2 of the Agreement on the help to refugees and displaced persons of September 24, 1993 contain determination of the concepts "refugee" and "displaced person". The concept "migrant" of the Agreement is not used and not determined.

The specified Agreement was signed on September 24, 1993 by the Azerbaijan Republic, the Republic of Armenia, the Republic of Belarus, the Republic of Kazakhstan, the Kyrgyz Republic, the Russian Federation, the Republic of Tajikistan, Turkmenistan, the Republic of Uzbekistan. According to Article 12 this Agreement is subject to ratification and becomes effective after delivery on storage to depositary of the third ratification letter, and for the states ratifying it is later, - in day of delivery by them on storage of the instruments of ratification. According to data of depositary, the Agreement became effective on November 21, 1994; participants it at the time of decision are five states which handed over instruments of ratification: The Republic of Uzbekistan (since July 15, 1994), the Republic of Armenia (since September 1, 1994), the Republic of Tajikistan (since November 21, 1994), the Russian Federation (since September 1, 1995), the Kyrgyz Republic (since January 19, 1996).

Article 7 of the Agreement on the help to refugees and displaced persons of September 24, 1993 in an exhaustive way determines the concept "refugee" for the purposes of the Agreement.

Based on literal interpretation the Court determined that determination contains four criteria to which shall satisfy person to be acknowledged as the refugee according to the Agreement in the state which is his participant (positive criteria):

1) person shall not be the citizen of the state which granted shelter (the state of entrance);

2) person shall be forced to leave the place of the permanent residence, and the last shall be in the territory of other state (the state of departure) (At the same time person can be the citizen of the state of departure, the stateless person, the citizen of any third state provided that it constantly lived in the territory of the state of departure. However both the states of entrance, and the state of departure shall be agreement parties about the help to refugees and displaced persons of September 24, 1993);

3) committed violence or prosecution in other forms, or real danger to undergo to prosecution shall be the reason for which person is forced to leave the state. And violence or prosecution in other forms can be committed not only concerning person, but also against members of his family. Determination contains exhaustive list of signs on which violence or prosecution shall be committed or there shall be real danger to undergo to prosecution: racial or national identity, religion, language, political convictions, and also belonging to certain social group;

4) there shall be communication between making of violence or prosecution or existence of real danger to undergo to prosecution and the armed and international conflicts.

Determination contains also negative criterion: the refugee person who committed crime against the world, humanity or other intentional criminal offense cannot be recognized.

Thus, for recognition of person as the refugee according to the Agreement it is necessary and to determine enough that it meets all positive criteria containing in determination and does not fall under negative criterion.

At the same time, as it was established, the Agreement is effective concerning not all State Parties of the Commonwealth of Independent States. The agreement is not effective concerning the Azerbaijan Republic, the Republic of Belarus, the Republic of Kazakhstan, the Republic of Moldova, Turkmenistan, Ukraine.

It follows from this that in case of recognition of person by the refugee in the above-mentioned states the determination containing in article 1 of the Agreement on the help to refugees and displaced persons of September 24, 1993 is not subject to application. In accordance with the terms, containing in determination, it is not subject to application and the State Parties of the Agreement concerning persons arriving from the states which are not agreement parties.

In view of the fact of limitation of space application of the Agreement on the help to refugees and displaced persons of September 24, 1993 within the Commonwealth of Independent States, the Court recognizes necessary by consideration of request to consider the determinations of the term "refugee" containing in the Convention concerning the status of refugees of July 29, 1951 and the Protocol concerning the status of refugees of January 31, 1967.

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