Committee on the Rights of Migrant Workers
4 September 2019
The rights and political participation of the many nationals of Bosnia and Herzegovina who work and live abroad came into focus as the Committee on the Protection of the Rights of Migrant Workers and Members of their Families reviewed the third periodic report of Bosnia and Herzegovina. The problematic living conditions in the Vucjak camp were also amongst issues raised by Experts.
Committee Experts asked for information on the services provided to nationals of Bosnia and Herzegovina who worked abroad. Could the State party guarantee their rights, such as their right to vote? How many of them participated in elections? Were there any governmental plans, actions or strategies to deal with the root causes of emigration? They asked how, beyond remittances, the Government was fostering the transfer of knowledge and skills back to Bosnia and Herzegovina, as a means of furthering development. Experts also asked for information about the camps in the country, notably the Vucjak camp.
Saliha Duderija, Assistant Minister of Human Rights of Bosnia and Herzegovina, pointed out that there was a department that dealt with the diaspora and the Government was trying to create projects so emigrants could make a contribution to Bosnia and Herzegovina’s development from abroad. On the participation of the diaspora in general elections, delegates explained that there had been an increase in the number of registered voters in 2016 and 2018 as well as in the number of people who voted by mail. Bosnia and Herzegovina had entered into agreements on pension rights to ensure that members of the diaspora could access their pensions even if they had worked abroad. On the Vucjak camp, they said it had been established temporarily. While living conditions in this camp were not very good, no better alternative had been found.
Azad Taghi-Zada, Committee Expert and Co-Rapporteur for Bosnia and Herzegovina, requested information about nationals of Bosnia and Herzegovina who faced rights-related issues abroad. The majority of countries that hosted Bosnia and Herzegovina’s migrants had not signed the Convention on the Protection of the Rights of Migrant Workers and Members of their Families. Still, the Committee could assist the State party to address these human rights issues. It was important that they do, he said, in the context where migration flows were increasing and political discourse on migrations was hardening.
In his concluding remarks, Mr. Taghi-Zada thanked the delegation for the information it had provided, which had helped the Committee better understand the situation in the country, the efforts deployed by the Government, the activities it held, and the agreements it had entered with neighbouring countries.
Can Üver, Committee Expert and Co-Rapporteur for Bosnia and Herzegovina, thanked the delegation for the detailed information it had provided. The Committee would monitor the developments with regard to the implementation of the Convention in the country.
Ms. Duderija said she was honoured to have met the members of the Committee and collaborated with high profile experts that were assisting Bosnia and Herzegovina.
Ahmadou Tall, Committee Chairperson, thanked the two Rapporteurs and the Experts, as well as the delegation.
The delegation of Bosnia and Herzegovina consisted of representatives of the Ministry of Human Rights and Refugees, the Ministry of Security, the Ministry of Labour, War Veterans and Disabled People’s Protection, and the Permanent Mission of Bosnia and Herzegovina to the United Nations Office at Geneva.
The Committee will next meet in public this afternoon, Wednesday, 4 September at 3 p.m. to meet with States.
The third periodic report of Bosnia and Herzegovina can be read here: CMW/C/BIH/3 .
Presentation of the Report
SALIHA DUDERIJA, Assistant Minister of Human Rights of Bosnia and Herzegovina, said the Ministry for Human Rights and Refugees of Bosnia and Herzegovina had coordinated the preparation of the third periodic report under the Convention in cooperation with numerous competent institutions at all levels of government in the country. Bosnia and Herzegovina was a decentralized state and consisted of two entities, the Federation of Bosnia and Herzegovina and the Republika Srpska, as well as of the Brcko District, which were responsible for the implementation of obligations arising from the Convention.
The Government had compiled answers to a questionnaire and designated reporting units responsible for submitting responses. After the received responses had been consolidated, a draft third periodic report had been prepared. In accordance with statutory procedures, the draft report was submitted to the competent authorities in Bosnia and Herzegovina. The report reflected their views as they gave the final opinions and comments that had been included in the final version of the report, which had been submitted to the Committee.
Therefore, the third periodic report was based on the information provided by competent institutions of Bosnia and Herzegovina and the information presented in their annual reports.
In 2015, Bosnia and Herzegovina had adopted the new Law on Aliens, which regulated conditions and procedures for the entry of aliens in the country; the visa and non-visa regimes; travel documents for aliens; and stay and removal of aliens, in accordance with European standards. It had also adopted new laws on asylum and legal aid. It had amended the law on the prohibition of discrimination to strengthen protection mechanisms and introduced age, disability, sexual orientation, gender identity, and sex characteristics as prohibited grounds of discrimination. A Migration and Asylum Strategy and Action Plan had been adopted, and it was based on the principles of legality, State security, mutual cooperation and integration.
There were good cooperation relationships with civil society organizations such as the Bosnian and Herzegovinian Women’s Initiative, which provided support to persons under international protection, and MFS-EAMMAUS, which implemented direct assistance and protection projects targeting victims of human trafficking and migrants.
Bosnia and Herzegovina faced challenges in implementing the Committee's recommendations, such as aligning the legal framework with the Convention, which required additional funds to raise standards for the protection of migrants. Administrative capacity was being built in the context of the implementation of the 2016-2020 Strategy and Action Plan on Migration and Asylum. Civil servants attended regular training but there was still a need for specialized training. Additional funds, however, were needed. Efforts were being made to increase the accommodation capacities of immigration centres. If the latest upward trend in migrant arrivals continued, the country would face additional challenges in providing for accommodation and other needs of all migrants currently residing in Bosnia and Herzegovina.
Bosnia and Herzegovina was seeking to establish an effective return mechanism for irregular migrants, in line with European Union standards and policies. It had ratified readmission agreements with the European Union, all Western Balkan countries and Turkey. It was also implementing protocols with 16 European Union Member States in that regard.
It was challenging for Bosnia and Herzegovina to ensure the return of irregular migrants who were not from the region, and the country was further strengthening international cooperation in that context.
Statistics showed that currently in Bosnia and Herzegovina, the number of people coming from countries with high migration rates had increased significantly. The number of foreign nationals returned to Bosnia and Herzegovina under different agreements on readmission had increased. At the same time, the number of foreign nationals who had either been deported or left Bosnia and Herzegovina voluntarily had also gone up, thanks to readmission agreements between Bosnia and Herzegovina and third countries, notably Montenegro and Serbia.
The legal framework for border management was largely aligned with European Union’s acquis communautaire.
Bosnia and Herzegovina was making intensive efforts to find, as soon as possible, modalities to follow-up on recommendations of human rights treaty bodies with a view to fully implement the provisions of the Convention.
Questions by Committee Experts
AZAD TAGHI-ZADA, Committee Expert and Co-Rapporteur for Bosnia and Herzegovina, asked for more data disaggregated by gender and age on the flow of migrant workers. How many were in transit? How many had Bosnia and Herzegovina as a destination? How many nationals of Bosnia and Herzegovina were working in other countries?
He requested information on the services provided to Bosnia and Herzegovina nationals who worked abroad. Could the State party guarantee their rights, such as their right to vote? How many of them participated in elections?
It was more important to have more information about what type of social protection was offered to migrant workers in Bosnia and Herzegovina. Were these rights the same as those of nationals of Bosnia and Herzegovina? Were they the same in the Federation of Bosnia and Herzegovina and the Republika Srpska?
He asked for information on education services provided to migrant workers, notably children. Could the delegation provide information on their access to health care services?
Can ÜNVER, Committee Expert and Co-Rapporteur for Bosnia and Herzegovina, said the Committee needed statistics on migrant workers, especially on mixed migratory flows and different kinds of migrants.
He requested information on the participation of civil society in the preparation of the laws on migration. Were they involved in discussions?
Turning to detention, he said there should be a differentiation in detention practice. Migrants that overstayed and migrants who had committed criminal offences should be separated.
Another Expert asked how the State at the federal level was coordinating the implementation of migration policies and the way in which migration-related functions were carried out. How was the relationship with neighbouring countries and the State party’s situation in the Balkans corridors impacting the management of migration flows, notably with regard to returns? How was the Government screening migrants? He requested information on the treatment of children. Had the Government established the prohibition of the detention of children on the basis of their migratory status?
An Expert asked about the increasing number of persons entering the country to work. What had been done to ensure that these people received emergency health care and had access to dignified work?
Another Expert, pointing out that the Government was highly decentralized, said this created opportunities but also created challenges. Could the delegation explain how the Government ensured a uniform implementation of decisions made for the whole country, at the national level. He noted that Bosnia and Herzegovina was at once an origin, transit and destination country, which raised a number of issues related to trafficking in persons. What specific measures was the Government implementing to address trafficking? Did it coordinate with other countries to that end? Did it put in place special measures at the borders? He asked how the Government ensured that those that had been trafficked were not treated as criminals.
An Expert asked for information about the camps in the country, notably the Vucjak camp.
AHMADOU TALL, Committee Chairperson, asked if civil society had been involved in preparing the report. If so, how? If not, why? Were nationals of Bosnia and Herzegovina who lived abroad eligible to run for office in the country? He requested information, including examples, on the courts’ use and implementation of the Convention. Could the delegation provide information on expulsion procedures? Were there any appeals possible? Did they have suspensive effects? He also requested information on migrants’ access to justice. In particular, he asked the delegation to explain how migrants who were irregular could enjoy access to justice.
Responses by the Delegation
SALIHA DUDERIJA, Assistant Minister of Human Rights of Bosnia and Herzegovina, explained that Bosnia and Herzegovina had incorporated in its constitution an annex on human rights, which referred to the Convention on the Protection of the Rights of Migrant Workers and Members of their Families. There were universal provisions in Bosnian legislation on the protection from discrimination. Furthermore, Bosnian authorities used judgements of the European Court on Human Rights as a legal resource.
On legal aid, at the State level the Government was trying to establish a system that would guarantee the rights of all vulnerable groups. To that end, it cooperated with non-governmental organizations that offered legal aid.
On unaccompanied children, she said that, in some situations, the Government would appoint a guardian to take care of them. Bosnia and Herzegovina had been exposed to significant migration outflows in the past 20 years: many of its nationals had left to work abroad. Bosnia and Herzegovina ranked sixteenth in the world when it came to migration rates.
In the past four years, Croatia and Germany were amongst the most common destinations for nationals of Bosnia and Herzegovina. The Government had concluded bilateral agreements with them to make it easier for Bosnian migrants to live in these countries. Most of the younger Bosnian emigrants lived in European Union countries.
She pointed out that there was a department that dealt with the diaspora and that Bosnia and Herzegovina received 1.3 billion euros in remittances from the diaspora every year. Most citizens had emigrated for economic reasons and the Government was trying to create projects, so they could make a contribution to Bosnia and Herzegovina’s development from abroad.
According to the United Nations High Commissioner for Refugees, there were 17,500 persons from Bosnia and Herzegovina that still had a refugee status in about 14 countries.
Other members of the delegation explained that information about their rights was provided to economic migrants that were in transit in Bosnia and Herzegovina, in their language. However, the lack of interpreters for some languages such as Urdu and Bengali was a challenge; there were not enough interpreters to cover the whole territory of the country. It was important to note that these migrants saw Bosnia and Herzegovina as a transit country only and did not wish to receive certain services.
As of now, there were 17,722 individuals who had declared that they wanted to seek asylum, but few of them had done so. A majority of these individuals were therefore merely transiting through Bosnia and Herzegovina.
Non-governmental organizations had participated in the drafting process of the law on aliens that was currently in force. Public discussions had been organized -- the Government had solicited comments from non-governmental organizations and taken into consideration their suggestions.
Furthermore, it should be noted that authorities were obliged to make draft legislation available for “e-consultations”. The draft documents were posted online for 15 to 30 days and anybody could participate in the consultation process by making suggestions. These suggestions were taken into account by the Government, delegates assured.
On detention, the legislation in the country did not provide for any surveillance, custody or detention for underage migrants. The Government had not detained any children under 18 years old. There were reception centres where non-governmental organizations provided assistance to children. However, delegates stressed that there was no detention of children whatsoever in the country.
The criminal procedure code of Bosnia and Herzegovina clearly distinguished between administrative and criminal proceedings, whether the person concerned was a migrant or not. There was only one facility which could hold 150 persons, and persons were typically kept there in pretrial detention for no longer than 90 days. Only criminals were placed in prisons, not migrants, except if they had committed a crime.
During the preparation of the new law on aliens, efforts had been made to align this law with the Europan acquis communautaire. Therefore, the pretrial detention would never last more than 18 months; following that period the individual had to be sent to their country of origin, released or sent to a safe third country.
There were no collective detentions as per the law. It was not possible to deport foreigners collectively. Collective detention was absolutely forbidden.
There were legal remedies during the deportation procedures that had a suspensive effect, just as appeals did. Decisions by the second instance authorities, as they could not be appealed, could not be suspended. Even then, the foreigner had the right to file a complaint with the competent court. This remedy did not have a suspensive effect.
Even if the complaint with the court did not have a suspensive effect, the foreigner could request a suspension of the deportation, notably by invoking the non-refoulement principle. There were higher instances that could also examine the orders for deportation before they were carried out, such as the European Court of Human Rights in Strasbourg and Bosnia and Herzegovina’s Constitutional Court.
Turning to camps, delegates remarked that the Vucjak camp was not an official camp. It was an improvised solution devised by the concerned canton and city. Migrants had been sleeping on the streets and in gas stations. The Vucjak camp was therefore established temporarily. While living conditions in this camp were not very good, no better alternative had been found. It was important to note that the Vucjak camp did not host families, women or children, for whom there were alternative housing facilities.
On the concerns expressed by the Committee with regard to nation-wide legislative harmonization, delegates said that in the three administrative units of Bosnia and Herzegovina, labour laws also provided that any employer that hired a migrant worker had to conclude an employment contract which governed all duties and rights of both parties. The migrant workers were also entitled to social benefits, to which employers made financial contributions.
All individual and collective rights of migrant workers were absolutely equal to those of nationals of Bosnia and Herzegovin. Labour inspections were conducted by various levels of Government. Laws prohibited discrimination against migrant workers and granting advantages to Bosnia and Herzegovina nationals vis-a-vis migrant workers on the sole basis of their citizenship.
All migrants had to register in the social welfare system. When it came to social protection, family members of migrant workers had rights equal to those of citizens of Bosnia and Herzegovina. Migrant women also had the same rights to maternity leave as female Bosnia and Herzegovina nationals.
When it came to education, the policies in Bosnia and Herzegovina were in line with the Convention. Migrant children had access to schools. Around 100 children from various camps had been granted access to Bosnian schools as part of a special Government programme.
If a person was granted refugee status, they could work under the same conditions as Bosnia and Herzegovina nationals.
Victims of trafficking were never treated the same way as those who had committed crimes; they were granted special protection.
The delegation explained that migration was a State competence whereas employment was an entity competence.
In 2018, Bosnia and Herzegovina had mobilized to ensure the safety of migrants. A coordination body, which was permanent, had been established to cover all institutions that had any competency related to migrants’ rights. The creation of a coordinating body showed that this matter was important for the State. This body involved officials from various ministries and was headed by the Ministry of Security. Inter-ministerial cooperation had been strengthened and promoted.
In Bosnia and Herzegovina, the Ombudsperson had a lot of competencies. The law provided for the appointment of three Ombudspersons, each representing the country’s constituencies. Efforts had been made to improve the law on the Ombudsperson through two major amendments. The first amendment sought to change the financing structure of the Ombudsperson’s office. The second was on the cooperation with civil society organizations and gave additional competencies to the Ombudsperson’s Office, notably to act as a preventive mechanism on torture. The objective of these amendments was to fully meet the criteria set out in the Paris Principles.
There was an action plan for combatting trafficking and assisting victims, which provided for the coordination and cooperation of law-enforcement agencies, courts, and other relevant bodies. The Ministry for Human Rights and Refugees had a budget dedicated to the provision of services to victims of trafficking. Each and every victim was taken care of. They were provided with accommodation in safe houses. Last year, out of 83 suspected victims, only 13 had used the safe houses.
The State was required to take care of children and appoint a guardian if they were unaccompanied. Children were not separated from their families; they were kept together. But the Government dealt with each child’s case individually. Particular attention was paid to children who were found, and who had potentially been abused, on the streets. There were locally established law-enforcement teams working on these issues. It was, however, impossible to prevent all such cases. In 80 per cent of cases, it was minor girls who were sexually exploited. When possible, the perpetrator’s property was seized to provide compensation to the victims.
On the participation of the diaspora in general elections, delegates explained that there had been an increase in the number of registered voters in 2016 and 2018 as well as in the number of people who voted by mail. The Government produced and distributed material, such as brochures, to raise awareness on voting rights. Each and every year, the number of diplomatic and consular offices had increased, as the number of nationals of Bosnia and Herzegovina emigrating to other countries was increasing. Bosnia and Herzegovina had entered into agreements on pension rights to ensure that members of the diaspora could enjoy their pensions even if they had worked abroad.
Turning to data collection, delegates said the Government had elaborated statistics on migrant workers that were disaggregated by gender and age, notably. The Ministry of Labour and Employment collected this data. The data was submitted to the Council of Ministers, which established work quotas, through various reports. There were good collaboration practices in place on statistics.
Foreigners received work permits for waged labour, as per the laws on aliens, which also established quotas, i.e. the number of work permits that would be issued every year for each type of profession. The quotas were established by examining the need of particular industries and taking into account the number of work permits issued in the preceding years that would be extended. There was a high level of coordination between the various levels of administration in Bosnia and Herzegovina.
Work permits issued in one calendar year were registered, and statistics were sent to the Ministry of Labour and Employment. In 2018, the Government would issue 1,500 work permits - 900 for the Federation of Bosnia and Herzegovina; 600 for the Republika Srpska; and 80 for the Brcko District.
Additional Questions by the Committee Experts
Can ÜNVER, Committee Expert and Co-Rapporteur for Bosnia and Herzegovina, said that developing countries with immigrants and emigrants had to develop a targeted approach to meet specific labour market needs in the country. They had to develop mapping tools for the diaspora, as they made significant contributions to the development of the country upon their return, but also before returns, through remittances. Bilateral agreements with neighbouring countries would be helpful to that end. Temporary migration schemes could be developed. What was the State party doing in that regard?
AZAD TAGHI-ZADA, Committee Expert and Co-Rapporteur for Bosnia and Herzegovina, said the number of persons who participated in the elections was not a significant proportion of nationals of Bosnia and Herzegovina living abroad. What was the reason for this?
He requested information about nationals of Bosnia and Herzegovina who faced rights-related issues abroad. He noted that the majority of countries that hosted migrants from Bosnia and Herzegovina had not signed the Convention. Still, it was possible for the Committee and the State party to collaborate on this issue. The Committee could assist the State party to address these human rights issues. It was important that they do so, he said, in a context where migration flows were increasing and political discourses on migrations were hardening.
Another Expert said that Bosnia and Herzegovina was faced with the same phenomenon as other countries in the region and North Africa - it was a country of transit. This meant there were routes and corridors in the country where criminal networks exploited people who were seeking a better future, benefitting from human distress. Were these criminal networks operating at the borders? Were there Bosnians involved in them? Had Bosnia and Herzegovina signed readmission agreements? He asked whether the State party had signed agreement on labour to allow its nationals to work in Western European countries. He requested information on the agreements Bosnia and Herzegovina had with the European Union, if any, to build capacity to manage migration flows. Did it receive funds from the European Union to curb migrations? He asked if there was a type of council representing the diaspora? Some countries had parliamentarians for the diaspora. Was it the case in Bosnia and Herzegovina?
Were there any plans, actions or strategy that the Government had put in place to deal with the root causes of emigration from Bosnia and Herzegovina, asked an Expert. He requested information about Bosnia and Herzegovina’s relationship with the European Union. Was the European Union pressuring the State party in anyway on matters related to migration? Beyond remittances, it would be useful to learn how the Government was fostering the transfer of knowledge and skills back to Bosnia and Herzegovina, as a means of furthering development.
Another Expert said the complex political structure of the State party had been identified as an issue in the past. What progress had been achieved on that front? He requested information on the draft bill on the movement and stay of asylum-seekers and foreigners. Had it been adopted? How had it improved the situation of migrants in Bosnia and Herzegovina? The Committee had noted in the past a lack of harmonization of legal norms. Could the delegation provide information on discrimination-related complaints that had been lodged by migrants and the related outcomes? He asked for information on the impact of the jurisprudence of the European Court on Human Rights in the State party, notably whether it had led to a change in practice.
An Expert asked how migrants were involved in the development of policies, notably at the local level. He requested information about the research on migration being conducted in the country.
Additional Responses by the Committee Experts
Delegates explained that Bosnia and Herzegovina had lost a lot of citizens who had left after the war. On the diaspora’s participation in elections, there was a lack of capacity in encouraging citizens living abroad to vote. It was important to note, however, that a lot of Bosnia and Herzegovina’s nationals travelled back to the country to vote when elections were held.
On the violations of the rights of migrants from Argentina and living abroad, the Government had received few complaints. The majority of them lived in European countries, or countries like Canada or the United States where their rights were protected and they were integrated.
It was important to note that the Government included the diaspora in its migration strategy. In 2017, it had adopted a diaspora policy, which aimed to improve the cooperation with the diaspora and foster the transfer of knowledge. There were prominent, highly-educated people in the diaspora who held important roles in foreign countries, and efforts were made to work with them. In that context, there were also various investment schemes that were being implemented to create jobs. The Government was also working to monitor the flow of remittances. A project, which had been created with the World Bank, was in place to examine habits of remittance providers and receivers. The Government hoped to have direct projects and programmes for the diaspora in the future.
Bosnia and Herzegovina had numerous agreements with neighbouring countries, former Yugoslav countries in particular. It also had an agreement with Germany on the employment of medical workers, as well as Kuwait and other Middle East countries on temporary employment schemes.
There was an increasing trend of emigration to Slovenia and Germany. In 2013, 661 nationals of Bosnia and Herzegovina had found employment in Slovenia. There were 1,870 of them the following year; over 2,000 in 2015, and over 4,000 in 2016. In 2017 that number stood at over 9,000. There were now, in 2019, over 16,000 citizens of Bosnia and Herzegovina who had been granted work permits in Slovenia. The permits guaranteed the rights of these workers, delegates assured.
The law on aliens had been adopted in November 2015. Following that, other provisions had been harmonized. The original was an umbrella law, which set standards aligned with the Convention. Other laws had then been amended accordingly.
Migrants had access to the same rights on the whole territory of Bosnia and Herzegovina, as per the law on aliens. These rights included the right to social protection, pensions, etc.
Bosnia and Herzegovina had an agreement on the readmission of foreigners with the European Union, and implementation protocols had been signed with individual European Union Member States. Bosnia and Herzegovina also had bilateral agreements with several countries including North Macedonia, Turkey, the Russian Federation and Georgia. The established procedures provided that the relevant ministry acted upon request for readmission of Bosnians from countries with which Bosnia and Herzegovina had agreements. When it was confirmed that the person was a Bosnia and Herzegovina national, that person was admitted at a crossing border point. The identity of the concerned individuals was verified by the Government.
A programme had been implemented for 10 years in collaboration with the International Organization for Migration on “assisted voluntary projects”. This showed that Bosnia and Herzegovina had been collaborating with this organization for a long time.
The law on aliens had been adopted in 2015 and the law on asylum was passed in 2016, delegates recalled. One of the important novelties included in the law on aliens was limiting the period of detention of migrants. This new law was aligned with the European acquis communautaire.
AZAD TAGHI-ZADA, Committee Expert and Co-Rapporteur for Bosnia and Herzegovina, thanked the delegation for the information it had provided, which helped the Committee better understand the situation in the country, the efforts deployed by the Government, the activities it held, and the agreements it had entered with neighbouring countries. He asked for more information on the agreements on pensions. Was the value of the pensions guaranteed by the host countries?
Can ÜNVER, Committee Expert and Co-Rapporteur for Bosnia and Herzegovina, thanked the delegation for the detailed information it had provided. The Committee would monitor the developments with regard to the implementation of the Convention in the country.
SALIHA DUDERIJA, Assistant Minister of Human Rights of Bosnia and Herzegovina, said she was honoured to have met the members of the Committee and collaborated with high profile experts that were assisting her country. On bilateral agreements on pensions, she explained that they had been signed with various countries including North Macedonia, Germany and Austria. Years of employment were separately calculated in each country based on each country’s standards.
AHMADOU TALL, Committee Chairperson, thanked the two Rapporteurs and all the Experts, as well as the delegation.
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