At the same time as Iceland’s media revelled in its news last week about Iceland being one of “the best country in the world for children,” it became known that two Algerian boys, aged 15 and 16, had been sentenced to thirty days in prison in Iceland. Their crime? Using forged passports to travel to Iceland in search of asylum.
The ruling has been criticised by many, including UNICEF, which stated that it violated the UN Convention on the Rights of the Child, as well as the Government Agency for Child Protection, which noted the systematic racism implied in the ruling. “If these children had been Icelandic, they would never have been sentenced to prison for forgery,” Agency Director Bragi Guðbrandsson told the State Broadcasting Service RÚV.
While this particular event received attention due to the boys’ youth, less attention has been given to an obvious pattern in the Icelandic state’s way of dealing with asylum seekers who enter the country with illegal documents, either in their search for asylum in Iceland or on their way to doing the same in another country. Namely, despite the UN Convention Relating to the Status of Refugees (CRSR), which states that refugees can be excluded from penalties for forgery, the State systematically finds refugees guilty of forgery and sentences them to prison.
A MISINTERPRETATION
When an asylum seeker is caught entering the country with a forged passport, two opposing conventions meet. On the one hand, Iceland’s penal code states that forgery is punishable by up to eight years imprisonment and that stronger penalties should be considered if the forged document is used as an official paper. On the other hand, the UN CRSR—first agreed upon in Geneva in July 1951—states that its member states should not punish refugees for illegally entering or staying in the country if they come directly from a country where their lives or freedom have been threatened.
The wording, “directly from a country” has, however, proven problematic. As Hrefna Dögg Gunnarsdóttir, a MA law student who wrote her thesis on this particular paragraph of the convention and its relevance to Iceland, pointed out in a radio interview on station Rás 2 last week, it should not be understood literally. If it is interpreted literally, refugees coming to Iceland can never fit that description and are therefore never granted protection. The literal meaning, as Hrefna pointed out, would put all responsibility on the states that share borders with the country from which a particular refugee originally escapes, and this would go completely against the aim of the convention, which is for member states to share the responsibility.
Furthermore, many of those fleeing wars, human rights violations, persecution and repression, are simply not in a position to acquire legal documents, as the spokesperson for the UN Refugee Agency’s Regional Office for Baltic and Nordic countries Hanne Matiesen pointed out on an interview with radio show Spegillinn on May 14. Requesting passports can in some cases further endanger their lives, whereas in other cases, Somalia for instance, the legitimate authorities needed to issue such documents do not even exist.
A LAWYER BUT NO DEFENCE
Looking through the archive of Icelandic court rulings, the Icelandic state’s pattern of interpretation is clear: an asylum seeker is arrested by the border police and is then—in most cases not more than three or four days later—brought to court, where he or she “unambiguously acknowledges” his or her violation. Then he or she is sentenced to thirty days in prison and typically fined roughly 100 thousand ISK to cover his or her lawyer fee. According to the rulings, the decision to imprison them for thirty days is based on case law—one that gets stronger with each sentencing.
One of the names that frequently pop up while reading through the court rulings is Unnar Steinn Bjarndal. A district lawyer who works at the Keflavík-based law firm LS Legal, he has represented asylum seekers in more than twenty published forgery cases since 2008. Among his past clients in court are the two Algerian boys, as well as Henry Turay—a refugee from Sierra Leone who, after being denied asylum in late 2009, went into hiding and has not been heard from since early 2010.
Judging by the verdicts, actual legal defence is just about absent in these cases and the same applies in just about all other asylum seekers’ forgery cases, regardless of the defence lawyer each time. Unnar explained that, according to laws on criminal proceedings, further argumentation does not take place if the defendant has acknowledged their violation. With regard to the UN emergency rights, he told me that, “the courts have heretofore not consented to a defence of that type.”
A HARSH REALITY
But in order for the courts to take asylum seekers’ emergency rights into account, they have to be brought up by the lawyer in the first place. In an interview with newspaper Fréttatíminn on May 11, one of the Algerian boys, Adam Aamer, said that he had no idea what was happening in court and he said that his lawyer had told him to answer “yes” to every question. Seventeen-year-old Amin Naimi from Afghanistan, who was also represented by Unnar in April this year, told Fréttatíminn: “The lawyer did not explain anything to me. He just told me that I would have to sit in prison for thirty days, but that I would only have to spend 15 [days] there because I am a foreigner. Nothing else. I first met him the day before the trials and spoke very briefly with him.”
Unnar confirmed that he usually does not have the chance to speak with his clients until the day of the trials when they have already been interrogated by the police and confessed to using a forged passport. Even though any conversations with the police, before a defence lawyer enters the picture, are not supposed to have any weight in the criminal case itself, Unnar admits that this has an indirect impact. “It is, for instance, hard for them make a complete U-turn in their stand regarding the charges if they have already, during the case’s earlier stages, acknowledged the violation,” he told me.
It seems that the cases of Adam and Amin are not an exception, but part of a pattern that is far from limited to the courts and their unwillingness to consent to international agreements. The defence lawyers in these cases—who according to the Codex Ethicus for the Icelandic Bar Association, should above all “promote justice and prevent injustice” and “safeguard [their] client’s interests”—seem to be equally as unwilling to try out these international agreements and instead advise their clients to just say “yes.”
That is a harsh reality for people, sometimes children, fleeing poor and conflict-torn countries as Sierra Leone, Congo and Nigeria, and recently war-torn countries like Libya, Iraq and Afghanistan. But it spares the courts all complexity and gives the lawyer an easy extra 100 thousand ISK. Maybe Iceland is also the best country in the world for that?
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