Asylum, Shaken, Not Stirred

South Africa’s James Bond raises important issues about asylum and refugees.

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Czech businessman Radovan Krejcir outside the Magistrate's Court in Johannesburg, South Africa, Monday, April 16, 2012, after charges he faced for medical fraud were dropped. The fraud charge against Krejcir relates to a 4.5 million Rand claim he is thought to have made to an insurance company, but the Magistrate Court case overlapped with another case which is scheduled to be heard at the High Court, so the Magistrates court withdrew the case.

Radovan Krejčíř is a badass – there's no two ways about it. But an international war criminal, he is not. 

The man is a seedy character from a Gotham underworld with a knack for getting in 007-trouble. In July 2013, he narrowly escaped an assassination attempt in an upscale neighborhood in Johannesburg, South Africa, after bullets fired from a remote controlled "12-gauge firing mechanism" (see picture) located behind the rear license plate of a parked red VW Polo stuck Krejčíř's bullet-proof Mercedes. After shooting, the Polo (of course) detonated and burst into flames. Krejčíř emerged unscathed: "I saw him [Krejčíř] drive in and shortly after there was this rattle and a deafening explosion. We all rushed out in shock. It is such a relief that he survived," said a family member who was parked nearby.

In the same breath, Mr. James Bond – as the press has dubbed him – is also an unlikely applicant seeking political asylum in South Africa. The government of the Czech Republic, his home country, plans to retaliate against him for having funded the election campaign of a former prime minister. If deported, his life, as well as the lives of his family members, he maintains, is in peril. Moreover, he claims to be an honest businessman who has never been implicated in any human rights violations (which, under most systems, is the only claim that automatically excludes an applicant from obtaining refugee status).

As a man of international intrigue, his antics have attracted quite a bit of attention – not exactly in keeping with the typical low profile of a refugee applicant.

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Indeed, the South African press has documented his troubles with Princess Diana-like fervor since he first arrived in the country in 2007 sporting a fake passport. Over the last six years of his stay, he has allegedly established deep ties to the South African underworld and has been implicated in at least five murders. In March 2011, "The Man No Law Enforcement Appears Able to Catch" was arrested for insurance fraud after filing false medical records indicating he had cancer. While free on bail, Krejčíř was again arrested for his alleged participation in an armed robbery. Despite all of the hoopla surrounding the allegations, all charges have been dropped.

So it came as little surprise that in 2008, when court records showed Krejčíř had been seeking political asylum in South Africa, the press wanted access to the proceedings. Two reporters from leading South African newspapers petitioned the South African Refugee Appeal Board (the "RAB") for access to Krejčíř's upcoming asylum application hearing, citing the public's interest in him as a controversial figure. "He courted the media for his own purposes and can no longer say he doesn't want the media to intrude into his personal affairs," said the lead attorney for the newspapers. "[T]he public has an interest to know if a person such as Krejcir, who is suspected of having links to organized crime in South Africa, is granted asylum."

The RAB, nonetheless, refused to grant the media access, maintaining that South African statutory and common law as well as international norms and treaties require the state to conduct asylum proceedings in absolute confidentiality. "The asylum-seeker has privacy and dignity interests which are heightened in the context of an asylum hearing," retorted Krejčíř's attorney. "The fairness of the asylum hearing may be compromise...if the hearing does not take place in private."

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A South African trial court agreed with the RAB and in December 2012 reasoned, "if asylum-seekers do not know, even before they lodge applications for asylum that confidentiality will be respected under all circumstances, there is a realistic chance that some of them may either not lodge applications at all, or even if they do, are not completely candid about what they do disclose."

"Where the Board to have a discretion," it continued, "an asylum-seeker would have to make a choice before hand whether to disclose more, in order to make out a proper case for asylum, but subject to the risk of safety to those closely associated with him, or disclose those interests, but then running the risk of having the asylum application turned down. In my view this will totally subvert the asylum process and the confidentiality that I deem to be an essential part of it." With respect to the specific facts surrounding Krejčíř's application the court added, "[c]ertain of those facts may or may not be in the public interest, but this is a far cry from saying that one is dealing with issues of ‘national importance'" necessitating disclosure.

Krejčíř's continued fight to keep the contents of his Jekyll-and-Hyde asylum application secret has not only impacted tens of thousands of other asylum-seekers in South Africa (the country receives more asylum applications than any other in the world) but also has ramifications for other country's refugee systems (the South African system is based on international norms and standards and, as a result, is a model for other countries as well).

South Africa, itself, did not recognize refugees until 1993. Owing in part to the fact that many of its country's leaders were themselves refugees, forced into exile by the apartheid government, the country passed a robust Refugees Act in 1998 that emphasized the "special vulnerabilities" many asylum-seekers face. As such, the system provides applicants assurances of confidentiality – specifically stating that "[t]he confidentiality of asylum applications and the information contained therein must be ensured at all times" (emphasis added) – which the government interpreted to mandate a system in which confidentiality is absolute at all stages of the process.

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South Africa's position accords with the "Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status," published by the United Nations High Commissioner for Refugees, which also requires the confidentiality of asylum proceedings be respected at "all times." "In exceptional circumstances, contact with the country of origin may be justified on national security grounds, but even then the existence of the asylum application should not be disclosed." A 2005 UNHCR advisory report, in fact, cited "combating terrorism" as one of the "limited, exceptional circumstances" where disclosure might be permissible.

Krejčíř appeared to be in the clear, at first.

The public, however, was a bit queasy about secret government proceedings. Absolute bans on public access to government administrative proceedings, after all, come at cost to other fundamental rights. At the outset, it necessarily limits the constitutional rights of freedom of the press and freedom of the media – both deemed essential to ensuring government accountability and transparency (the pillars of any constitutional democracy). In the case of asylum proceedings, the absence of third-party review also increases the likelihood that that individuals suspected of committing war crimes or other human rights violations are granted refugee status.

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This September, the Constitutional Court of South Africa sought to strike a balance between the dueling constitutional concerns. It unanimously ruled that government's insistence on a blanket ban of public access to asylum proceedings unjustifiably infringed the right of freedom of the press and ordered parliament to remedy it. In crafting new disclosure rules the legislature should weigh the public interest in access to proceedings against "the need to protect the identity and dignity of asylum applicants," as well as family members and witnesses appearing on behalf of the applicant. It should also consider "the need to protect the integrity of the asylum process" and the "likely impact of the disclosure on the fairness of the proceedings and the rights of the asylum[-]seeker."

It is yet to be seen whether Krejčíř can squirm his way out of this predicament. While Parliament determines the new disclosure rules, the Court gave the RAB discretion to allow journalists access to Krejčíř's hearings.

James Bond may have just met his match.

Drew F. Cohen is a law clerk to the chief justice of the Constitutional Court of South Africa. Follow him on Twitter at @DF_Cohen or email him at dfcohen@law.gwu.edu.

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