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RS 0.142.393 Tripartite Agreement of 5 October 2006 between the Swiss Federal Council, the Government of the Islamic Republic of Afghanistan and the United Nations High Commissioner for Refugees (UNHCR) (with annex)

Original Language Title: RS 0.142.393 Accord tripartite du 5 octobre 2006 entre le Conseil fédéral suisse, le Gouvernement de la République islamique d’Afghanistan et le Haut Commissariat des Nations Unies pour les réfugiés (HCR) (avec annexe)

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0.142.393

Translation 1 1

Tripartite Agreement

Between the Swiss Federal Council, the Government of the Islamic Republic of Afghanistan and the United Nations High Commissioner for Refugees (UNHCR)

Geneva, 5 October 2006
Entered into force on 5 October 2006

(Status on 5 October 2006)

The Swiss Federal Council, the Government of the Islamic Republic of Afghanistan and the UNHCR,

Hereinafter referred to as "the Parties",

(a)
Recognising that the right of every citizen to leave and return to his country is a fundamental human right, enshrined inter alia by art. 13 (2) of the 1948 Universal Declaration of Human Rights and Art. 12 of the 1966 International Convention on Civil and Political Rights 2 ,
(b)
Recognising the progress made in the process of political transition in Afghanistan, in particular the elections of Parliament and regional councils on 18 September 2005 which mark a final important step in the process defined in Agreement on provisional arrangements in Afghanistan prior to the re-establishment of permanent government institutions (Agreement on Provisional Arrangements in Afghanistan Pending the Re-Establishment of Permanent Government Institutions) signed Under the auspices of the United Nations in Bonn on 5 December 2001 (Bonn Agreement),
(c)
Welcoming the fact that a large number of Afghan citizens, from neighbouring states, have already returned to their country, and an even greater number of people are about to return to Afghanistan,
(d)
Wishing to coordinate closely the process of assisting the return of Afghan nationals, which is the process of the primacy of voluntary returns,
(e)
Noting the desire of the parties to cooperate in order to fully respect international human rights and humanitarian norms, in particular those relating to the return to safety and dignity,
(f)
Considering the friendly relations between Afghanistan and Switzerland,
(g)
Wishing to preserve and strengthen the spirit of solidarity and cooperation between them,
(h)
Considering the impact of more than two decades of wars on Afghanistan's social fabric and Afghanistan's economic infrastructure,
(i)
Acting in accordance with the Convention of 28 July 1951 on the Status of Refugees 3 In its version of the Protocol of 31 January 1967 concerning the status of refugees 4 And the International Convention on Civil and Political Rights of 16 December 1966,

Agreed to the following provisions:

Art. 1 Scope of the Agreement

This Agreement covers all Afghan citizens as defined by Afghan law and residing in Switzerland, irrespective of their legal status.

Art. 2 Goals

Through this Agreement, the Parties wish to lay the foundations for an assisted return process of Afghans in Switzerland, which is closely coordinated, organized and humane, which respects the primacy of voluntary return and takes into account the conditions prevailing in Afghanistan and the emphasis on sustainable return, carried out in security and dignity.

Art. 3 Terms of return

1. The Afghan Party shall readmit its nationals and assist in the determination of the Afghan nationality of persons returning to the country in accordance with the provisions of this Agreement. The Afghan Party and the Swiss Party work closely together, in particular, to avoid any cases of statelessness.

2. Based exclusively on the decisions taken in accordance with Swiss law, it is possible to provide for last resort, other than the voluntary return of Afghan nationals whose departure from Switzerland has been ordered. Before considering such solutions, it is necessary to make every reasonable effort to encourage Afghans whose departure from Switzerland has been ordered to return.

Art. 4 Return procedures

1. All return cases are coordinated by the Swiss authorities in conjunction with the consular representatives of the Afghan authorities.

2. The Swiss authorities shall provide details of flights and indications concerning Afghan nationals whose nationality has been confirmed, at least five working days before the date of return.

Art. 5 Post-Return Commitments

The Afghan Party, in cooperation with other relevant authorities, shall take the necessary measures to ensure that Afghans living abroad can return without fear of harassment, intimidation, persecution, discrimination, Judicial proceedings or any other punitive measures of any kind. This guarantee does not exclude the right of the competent authorities of Afghanistan to prosecute persons on the grounds of war crimes and crimes against humanity, as defined in international instruments, or very serious crimes of Common law involving death or serious bodily harm.

Art. 6 Free choice of destination

The Afghan Party accepts that Afghan nationals returning from abroad may be free to settle in their old place of residence or in any other place of their choice in Afghanistan.

Art. 7 Legal Status and Equivalencies

The Afghan Party agreed to recognise the personal status of Afghan nationals returning from Switzerland, as well as changes, including births, deaths, adoptions, marriage and divorce. The Afghan Party also makes an effort to appropriately recognize the equivalence of university or professional degrees and certificates obtained by Afghan nationals during their stay in Switzerland.

Art. 8 Role of UNHCR

The other two Contracting Parties will fully respect UNHCR's role in assisting, simplifying and monitoring the return of Afghan nationals in order to ensure that it is carried out in a manner consistent with its mandate and With the provisions of this Agreement. In addition to its operations in Afghanistan, UNHCR will work with its partners to provide information and advice in Switzerland.

Art. Awareness

In order to meet the conditions conducive to the reintegration of return persons in a context of security and dignity, the Afghan Party is taking all necessary measures to raise awareness.

Art. 10 Preservation of the family unit

In accordance with the principle of family unity, the Swiss Party, in cooperation with the other Parties, undertakes all necessary efforts to ensure that families return as a unit and avoid any separation Involuntary when all members of a family, all Afghan nationals covered by the provisions of this Agreement, decide to return to Afghanistan.

2. In order to preserve the family unit, spouses and/or non-Afghan children of Afghan nationals returning to Afghanistan are allowed to enter and stay in Afghanistan. This commitment also applies to spouses and non-Afghan children of deceased Afghan nationals who wish to enter and stay in Afghanistan in order to maintain family ties. As a result, the Afghan Party regulates the entry and stay of these persons in Afghanistan, in accordance with the provisions of its national laws on the entry and residence of aliens. The Afghan Party welcomes their naturalization. The necessary visas are issued without delay by the diplomatic representation of Afghanistan in Switzerland.

Art. 11 Special measures for vulnerable groups

The Parties shall take special measures to ensure that vulnerable groups receive appropriate protection, assistance and care throughout the return and reintegration process. In particular, measures are being taken to ensure that unaccompanied minor children do not return to the country as long as family members have not been found, or that appropriate arrangements have been made for them Welcome and take care of them in Afghanistan.

Art. 12 International access before and after return

In order to be able to effectively carry out its functions of protection and assistance at the international level and with the intention of facilitating the implementation of this Agreement, UNHCR is authorized to enter into contact, free and unhindered, with All Afghan nationals in Switzerland who are subject to the provisions of this Agreement, in accordance with national data protection legislation. Similarly, UNHCR is allowed to enter into contact, freely and unhindered, with all persons who have returned to Afghanistan, wherever they are in that country, including airports. Afghan nationals have access to UNHCR, free and unhindered.

2. The Afghan Party collaborates without reservation with UNHCR staff to enable its members to ensure the treatment of returnpersons in accordance with humanitarian and human rights principles, including the implementation of the Commitments contained in this Agreement.

3. In this context, the Afghan Party informs the UNHCR of any exceptional cases of arrest, detention and criminal proceedings in accordance with the provisions of Afghan law involving returpersons. It allows, where appropriate and upon request, access to all relevant documents in relation to such cases and allows UNHCR staff to come into contact in the shortest possible time and without hindrance with returpersons Concerned.

4. Access granted to UNHCR under the provisions of this Article shall extend, as appropriate, to intergovernmental or non-governmental organizations with which UNHCR may enter into agreements for the implementation of one or more of the Elements constituting the return programme covered by this Agreement, in consultation with interested Parties.

Art. 13 Return travel security

For the purposes of this Agreement, the Swiss Party shall remain responsible for the security of Afghans, who shall return, until they have left their exit point. The responsibility for the safety of the returners and the liability of their personal belongings during the journey shall be the responsibility of the carrier and, where appropriate, the international organisation organising the journey. The Afghan Party is responsible for their security in the territory of Afghanistan.

Art. 14 Immigration and Customs Formalities

1. In order to ensure the rapid return of Afghan nationals and their property, the Afghan Party and the Swiss Party shall simplify and harmonize their customs, immigration, health check and all formalities for these persons. Other formalities normally completed at border crossing points.

2. Personal property of returnpersons, including domestic and electronic appliances, cash and food, shall be exempt from all duties, emoluments and customs duties, provided that such property is not prohibited from Export in accordance with Swiss national laws and regulations, and are not prohibited from importation in accordance with Afghan national laws and regulations. Lists of prohibited items will be submitted by the two interested Parties as soon as possible after the signing of this Agreement.

Art. 15 Arrival at the airport and arrangements for transit

The Parties agree that the appropriate mode for the return of Switzerland to Afghanistan is the airway and that the point of arrival is Kabul airport. The UNHCR and the organisation preparing the return journey, if necessary, can ensure the reception at the airport of return persons without hindrance. With the support of the other Parties and the financial assistance provided by the Swiss Party, the Afghan Party ensures that adequate facilities are in place to accommodate returnee persons, in particular vulnerable groups in transit To their final destination, to the extent deemed necessary by the Parties.

Art. 16 Return Assistance

The Swiss Party shall bear the costs of the return journey for all Afghan nationals subject to the provisions of this Agreement, as well as for their baggage (normally: 20 kg per person) and shall provide a flat rate of CHF 200 as Pocket money. The return trip is normally taken to the first point of entry; for vulnerable persons, it can cover the journey to the final destination in Afghanistan.

2. The Swiss Party provides return assistance in order to facilitate their social and professional reintegration to Afghan nationals mentioned in art. I of the Annex and who voluntarily return. Assistance consists of a lump sum for their resettlement, an allowance for the launch of an independent activity and medical assistance in case of need.

Art. 17 Reintegration Assistance

With the intention of facilitating the reintegration of returpersons into Afghanistan and taking into account the more general reconstruction and rehabilitation needs of Afghanistan, the Swiss Party, in consultation with the other Parties, reserves the right to Support for the idea of supporting return and reintegration projects, focusing in particular on vocational training and housing, including the development of country-specific return projects.

Art. 18 Data Protection

To the extent that personal data are necessary for the application of this Agreement, they shall be treated and protected in accordance with national data protection laws.

2. Personal data communicated in relation to the return of persons may relate only to the following:

(a)
Personal data relating to the person to be transferred and, if necessary, those of the members of his family (surname, first name, possible previous names, surnames or pseudonyms, alias, date and place of birth, sex, current nationality and nationality Where applicable);
(b)
Passport and identification card;
(c)
Other indications necessary to identify the person to be transferred, and
(d)
Intermediate steps and itineraries.

3. Personal data may be communicated and processed only by the competent authorities responsible for the application of this Agreement, and only in the purposes provided for by this Agreement. The Party communicating the data shall ensure that it is accurate and that it is necessary and appropriate for the purpose of the communication. If it is found that incorrect data were transmitted or that the transmission was not due, the recipient must be notified immediately. It is required to make the necessary correction or destruction. Any subsequent transmission to other organs must receive prior written authorization from the authority that communicated them. The personal data communicated shall be kept for as long as it is required for the purpose in which it has been communicated.

4. Each Party shall inform on request the other Parties of the use of the data and of the results thus obtained. At his request, any person must be informed of the data concerning him or her as well as the purpose.

5. Each Party shall register in writing the transmission and receipt of personal data. It effectively protects the personal data provided against unauthorized access, modification or disclosure to third parties.

Art. 19 Application provisions

On the date of signature of this Agreement, the Parties shall, through diplomatic channels, communicate to the competent authorities responsible for the implementation of this Agreement. They also transmit the addresses where the returns will take place.

(2) The Parties shall communicate without delay, through diplomatic channels, any change relating to para. 1 of this article.

3. The procedures for the application of this Agreement shall be set out in the Annex to this Agreement which forms an integral part thereof, in particular:

(a)
The categories of persons concerned;
(b)
Procedures for identifying and confirming nationality.

The Annex to this Agreement may be amended by mutual agreement in writing between the competent authorities of the Parties.

Art. Coordination mechanisms and dispute resolution

With a view to the implementation of this Agreement, the Parties undertake to coordinate and consult with each other. In this context, relevant information will be regularly shared among the Parties, in particular between the diplomatic missions of Switzerland and the Islamic Republic of Afghanistan, as well as with the respective offices of the UNHCR In these two countries.

2. A committee of experts may be established by the Parties for the purpose of monitoring and discussing the implementation of this Agreement. The Committee may be convened at the request of one of the Parties in Berne, Kabul or Geneva. The expert committee may, whenever it considers it appropriate and appropriate, invite representatives of the relevant organizations to participate in its deliberations with a consultative voice. The decisions of the Committee of Experts shall be based on the mutual consent of the designated representatives or their appointed alternates.

(3) Any question relating to the interpretation or application of this Agreement, or for which it does not contain an explicit provision, shall be resolved amicably by means of consultations between the Parties. In particular, the Parties agree to address any issues of statelessness with a view to avoiding it, and to seek solutions to relieve the rigours it entails for the persons concerned.

Art. Continued validity of other agreements

This Agreement shall not affect the validity or derogate from any instrument, agreement, arrangement or bilateral or multilateral mechanism of cooperation existing between the Parties. In addition, this Agreement shall in no way affect the validity of national or international law in relation to mutual legal assistance in criminal matters or extradition.

Art. Application

This Agreement shall also apply to the territory of the Principality of Liechtenstein.

Art. Entry into force

This Agreement shall enter into force on the date of its signature by the Parties.

Art. 24 Amendments

This Agreement may be amended by mutual written consent between the Parties.

Art. 25 Suspension

Each Party, after consultation with the other Parties, may suspend the provisions of this Agreement, in whole or in part, on grounds of public policy, public health or safety. The suspension shall be notified forthwith and in writing to the other Parties. It shall enter into force ten days after the date of its notification.

Art. 26 Denunciation

Each Party may terminate this Agreement at any time by notifying the other Party in writing. In such case, the Agreement shall cease to have effect thirty days after the date of receipt of that notification.

In witness whereof, The representatives of the Parties have signed this Agreement.

Done at Geneva, on October 5, 2006, in three originals in the English, Dari and German languages, the English language being authentic in the event of a dispute concerning the interpretation of this Agreement.

Annex

Re art. 19, para. 3, let. A, the Agreement

Art. I Categories of persons concerned

1. Afghan nationals with refugee status, provisional admission or asylum procedure in progress, and Afghan nationals whose departure from Switzerland has been ordered may decide to return voluntarily and Request the benefit of the return assistance in accordance with the provisions of this Agreement, provided that they comply with the rules and regulations of Swiss law.

2. Once the deadline for voluntary return has expired, Afghan nationals whose departure from Switzerland has been ordered may be forced to opt for alternatives to voluntary return based on a decision taken According to the provisions of Swiss law. Before considering such solutions, all reasonable efforts are being made to encourage Afghan nationals whose departure from Switzerland has been ordered to opt for voluntary return.

Re art. 19, para. 3, let. B , Of l ' Agreement

Art. II Proof of nationality

1. If a valid travel document is not submitted, the returnee shall be identified as an Afghan national and shall be issued an emergency travel document on condition that it presents one of the documents or evidence listed in the document. Al. 2 of this article.

2. Afghan nationality can be proved by presentation:

(a)
Expired passports of any kind (national passports or alternative passports);
(b)
Identification cards;
(c)
Official documents indicating the nationality of the person concerned;
(d)
Precise information provided by the competent authorities;
(e)
Any other document recognized by the Afghan Embassy or by the Afghan consular authorities to establish the nationality of the person concerned.

3. If these documents are submitted, the Afghan authorities recognise the nationality of the person concerned and no further examination is required. An emergency travel document with a validity of thirty (30) days shall be issued by the diplomatic or consular representatives of the Afghan Party, preferably within ten (10) working days.

Art. III Presumption of nationality

1. The presumption of Afghan nationality can be established in particular:

(a)
Copies of any of the documents listed in s. II;
(b)
Driver's licence;
(c)
Business identification cards;
(d)
Birth certificates;
(e)
Witness statements;
(f)
The declaration of the person concerned,
(g)
The language spoken by the person concerned; however, the ability to express oneself in one of the languages of Afghanistan does not automatically establish the nationality of the person concerned;
(h)
Any other document (e.g. fingerprints) contributing to the nationality of the person concerned;
(i)
Of Lingua.

2. In this case, Afghan nationality is considered to be established on the condition that the Afghan authorities have not challenged it. An emergency travel document prepared for thirty (30) days shall then be issued by the diplomatic or consular representatives of the Afghan Party, preferably within ten (10) working days.

Art. IV Special identification procedure

In cases where it is not possible to obtain the necessary documents or other evidence in order to establish the nationality of the person concerned, but in the presence of evidence allowing the presumption of nationality, the Swiss authorities may Ask the diplomatic and consular representatives of the Afghan Party to help them determine the nationality of the person concerned. The following identification procedure is then applied:

(a)
The data subject is auditioned as soon as possible and preferably within twenty (20) days from the date of receipt of the request;
(b)
The hearing takes place in any place where it is possible to hold it;
(c)
The outcome of the hearing shall be transmitted to the Swiss authorities as soon as possible, preferably within fifteen (15) days from the date of the hearing;
(d)
In the event of confirmation of the nationality of the person concerned, an emergency travel document valid for thirty (30) days shall be issued by the diplomatic or consular representatives of the Afghan Party, preferably within ten (10) days Working.


1 The original text is published, under the same number, in the German edition of this compendium.
2 RS 0.103.2
3 RS 0.142.30
4 RS 0.142.301


Status on 5 October 2006