On 12^th December 2007, the leaders of European Union Member States signed the Charter of Fundamental Rights in Strasbourg, France. The reformed document will take effect as of 2009 after ratification by all members, or with the coming into force of the new European Union Agreement. The Charter of Fundamental Rights, or in short the Charter, won approval throughout Europe especially as it was seen as a replacement for the unsuccessful project of the European constitution – easing the pain after its sad ending. In his address preceding the signing of the Charter of Fundamental Rights, the President of the European Parliament and a member of the European People’s Party Hans-Gert Pöttering said with enthusiasm: “In the European Union it is not power that has rights, it is the right that has power”; he thereby emphatically stated that Europe is committed to the rule of law, something which had already been established by “our forefathers”. The first hidden fact of the Charter of Fundamental Rights is that the United Kingdom and Poland both negotiated the possibility of opt-outs. [In general, the law of the European Union is valid in all of 27 EU Member States. However, occasionally Member States negotiate certain opt-outs from legislation or treaties of the European Union, meaning they do not participate in the common structure in these fields. Editor’s remark.] The Slovenian media did provide a suitable translation for the term (the word izvzetje), however, it denotes, more often than not, that things are omitted. The notion of “opt-outs” itself therefore remains unexplored and unquestioned, perhaps due to the fact that an editorial column that critically approaches such issues in newspapers nowadays is becoming a sort of a relic of the past. Opt-outs are in fact an exception or measure that insists on a separate status, a mechanism that the EU members exploit broadly in different areas to avoid European legislation. The “opt-outs” allow Poland and the United Kingdom to disrespect the articles of the Charter. These two countries therefore do not need to abide by the laws of the Charter. They thus usurp the option of using their own judgement of what are or are not human rights; who may or may not enjoy them; what is violation of human rights and what is not. For Poland, this homophobic champion state of the European Union, this could mean that the human rights of sexual minorities would simply not be recognised. At the same time, the UK is the overall champion of opt-outs, making exceptionally frequent use of it, for instance in the field of work legislation. In practice, the opt-outs also mean that British and Polish citizens will have no chance of appealing to the European Court of Human Rights in the event thattheir rights are violated in their home countries and they have used all the legal means there. The second hidden fact of the Charter is that it represents the first international treaty which strictly forbids discrimination based on sexual orientation – but not in an equal way. The explicit prohibition of discrimination against sexual minorities surely signifies an improvement in the field of human rights for gays and lesbians in the European Union, but this only applies to those gays and lesbians who are citizens of the EU. For non-EU residents, migrants, workers without a visa, foreigners, political and war refugees, and asylum seekers these rights do not apply even if they are prosecuted by a totalitarian regime, threatened with capital punishment, torture, or imprisonment.

In Reartikulacija no. 2, I wrote about Makwan Moloudzadeh, a 20-year old Iranian gay man who was sentenced to death on account of his homosexuality. At the time of writing the article, an international campaign in support of the accused was in full swing. It was an initiative of non-governmental organisations supported by numerous governments and politicians and the EU was supposed to request the abolition of the sentence with immediate effect. Just before the second issue of Reartikulacija went to print, I received news of his execution. The young man, who had been on a hunger strike for some time, was hauled out of his cell and hanged on 5th December 2007 at 5.00 am. The execution was carried out quickly and secretly – he was hanged in the prison, even though Iranian legislation specifies that executions should be public. The execution was carried out despite the supreme attorney’s order of withdrawal. The victim’s family received a coffin with his mutilated body and broken arms. A crowd of about 6,000 people, nearly the whole population of the small town of Paveh in West Iran, attended the funeral. Only one Iranian female journalist dared to report about the tragic case and she was also the only one to follow the legal proceedings; she spoke to the Western media and revealed, in a visible state of shock, that even the victim’s lawyer had not been informed of the execution and that her article, written just after Moloudzadeh’s death, was immediately withdrawn from the press while she was transferred to cover “lighter social topics”. Makwan Moloudzadeh’s trial was nothing short of a farce. He was charged with sodomy, the expression for homosexuality in the Islamic vocabulary, which he allegedly committed at the age of 13. All witnesses heard in court, explicitly declared that their previous accusations against the defendant were uttered under constraint and as a result of intimidation. Upon conclusion of the trial there was not a single witness that would confirm the evil deed and so the judge reached the verdict according to “his own intuition”. International and Iranian legislations forbid capital punishment for deeds committed by minors. Currently there are 78 minors awaiting execution in Iran and the country has the highest number of death penalties in the world. Last year, over 210 executions were carried out. These are either death by hanging, beheading, pushing the accused over a precipice, or stoning and for various reasons – from adultery, witchcraft, dissidence, to homosexuality and lesbianism.

In January 2008, the Netherlands ordered the deportation of a 19-year old Iranian gay man to the United Kingdom. The Iranian fled the United Kingdom for the Netherlands after being refused asylum. The Dutch court ordered his him to be deported to the United Kingdom even though a further deportation to Iran would follow and, once there, he would be executed. Such procedures are enabled on account of the Dublin Convention which forbids people to seek asylum in two EU countries at the same time, even though asylum was denied in one of them. In the summer of 2007, international pressure barely prevented the deportation of the Iranian lesbian Pegah Emambakhsh from the United Kingdom back to Iran where she would face capital punishment. In 2006, the German constitutional court hindered the deportation of a 27-year old Iranian lesbian to her home country. In 2005, three photographs of two executed Iranian teenagers circled the globe. Sixteen-year old Mahmoud Asgari and 18-year old Ayaza Mahroni were sentenced to death on charges of homosexual inclinations. The first photograph shows the two young men in tears in a police vehicle, the second one shows two executioners in black hoods fixing the noose around their necks, and the third photograph displays the hanged bodies. The two teenagers were executed in the city square of the town of Mashhad, northwest Iran and the event was watched by a crowd of people. In 2004, Israfil Shifri, a 19-year old Iranian gay man, walked into the Immigration Office in Manchester, poured petrol over his own body and set himself on fire. All his requests for asylum in the UK were denied and, threatened with deportation, he opted to kill himself rather than be executed. Perhaps the President of the European Parliament Hans-Gert Pöttering should indeed be asked who has rights and who has power.. As a result of restrictions imposed on migration into the territory of the European Union, the totalitarian regimes are becoming stronger. This has been overlooked in the “Schengenisation” of Europe and the common asylum policy, as has the deportation of gays and lesbians from the EU into countries, which carry out capital punishment, torture or merciless humiliation – Iran, Mauritania, Saudi Arabia, Yemen, Sudan, United Arab Emirates, Uganda, Zimbabwe, Pakistan, Algeria, Jamaica, Belarus, Kosovo, Albania…

The external EU border is the border of fear, a training ground for fear management. The Schengen information system carries out concealed methods of control and tracking. As of 2007 Slovenia must comply with the Prüm Treaty which demands the international exchange of DNA and fingerprint information within the framework of the VISA project – the world’s largest biometric information base. The Schengenisation of Europe has shaken the established concept of citizenship and the concept of privacy. Activists persistently warn against the traps of the Schengen expansion of borders, which is not only the arena of European Apartheid, racism, xenophobia and homophobia, but also brings the nightmarish realisation of the notorious free market policy, uncontrolled traffic of goods and services, a global redistribution of wealth and poverty, suppression and exclusion. The external border of the EU is a watertight filter – and there are extremist fractions operating under the auspices of European institutions operate, whose mission is anti-migration and a fight for a “cleaner Europe”. One such group is ITS – Identity, Tradition, Sovereignty which acts within the European parliament and, in accordance with the existing parliamentary regulations, has a yearly budget of EUR 1 million. This means EUR 1 million for modern-day neo-fascist crusaders to persecute minorities, asylum seekers, Roma people, Jews; ITS demands capital punishment for homosexuals; it considers anti-racist organisations to be “mental aids”. Meanwhile European universities and other more or less enlightened institutions measure the index of migrant integration policies. Slovenia currently occupies joint 11th place on the EU members’ ratings. Let’s see: Slovenian police are trained at a top level and possess state of the art equipment. They use of instruments, which detect human warmth, night detectors; they are able to measure the levels of carbon dioxide in vans and other goods vehicles. According to official reports 35,000 illegal migrants were captured in Slovenia in 2000 and 2001, while there were only as many as 4,000 in 2006 and 3,000 the following year. Slovenia incorporated the European asylum directives into its own legal system within the prescribed time frame. January 2008 marks the operational implementation of the International Protection Law, replacing the EU Asylum Law and enforcing a unified asylum procedure which is part of a common European asylum system. The modernised legislation transfers European directives into national legislation by means of lowering international legal standards and limiting the chances of asylum seekers finding protection in Slovenia. European directives on minimal standards in fulfilling the criteria to acquire the status of refugee, or rather, a person who requires international protection (directives dating back to 2004 and 2005), define minimal norms; however, some of them are lower than the existing international standards of humanitarian law. There exists, therefore, a danger that full realisation of both European directives will bring a decrease in the current standards in EU member countries. This is expected to happen in Slovenia. The UN High Commissioner for Refugees has already issued criticism of the International Protection Law claiming that it does not comply with international legal standards and exposes asylum seekers to the danger of a prison sentence or deportation. The new law allows for deportation even if the asylum procedure or rather an appeal against it is still in the process of being resolved. It also enables the wider usage of a prison sentence for asylum seekers. The reformed asylum legislation therefore complicates the seekers’ situation and renders their protection difficult. It also does not take into account several key elements prescribed by European directives on minimal standards for conditions of granting asylum as well as international standards. The right to asylum is set on an individual basis; however, all seekers have the right to be united with their families whereby a family member includes spouses or boyfriends/girlfriends and children. The new law does not state that the same status may be awarded to unmarried couples or partners of the same sex. In addition, the new legislation does not honour European directives on considering gender in the procedures. This means that judgement of all five basic notions that determine whether seekers were victims of persecution – political conviction, nationality, race, religion and appertaining to a particular social group – must inevitably take gender into account. Female asylum seekers must be allowed the option of female interpreters, lawyers or counsellor for assistance. This option needs to be offered through a legal person who must also inform them of the right to an interview without the presence of family members. Asylum procedures must take into consideration fear, shame or traumatic experiences and it must not be necessary to get exact data on rapes and other sexual offences. According to the data from the UN High Commissioner for Refugees, Slovenia currently has one of the lowest levels of asylum recognition in Europe – in 2006 only one individual was given asylum, while in 2007 two people were given asylum. The Slovenian Ministry of the Interior denied the report, claiming that 18 people have been awarded refugee status in the last two years. The annual share is determined by the Government.Elfriede Jelinek’s novel Lust (1989) contains a sentence which to me symbolises the idyllic village of Schengen: “In the Hitlerian back rooms of home restaurants, again, against each other fight these small ‘nations’ on leashes…” But here, under the Alps, it’s safe. We have a “Eurocopter” and a “Schengen Bus” to protect us from strangers. The politicians visit new-borns in maternity wards and give a warm receptions to carol-singers.

Tatjana Greif holds a PhD in archaeology. She is a lesbian activist, publicist, editor of the book ŠKUC – Vizibilija and the Journal for Critique of Science.

Translated from Slovenian by Jernej Možic.

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