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HFHR statement in Edward Snowden’s case

The media report that Edward Snowden, a former employee of the United States National Security Agency (NSA), has leaked information about the authorities’ involvement in the surveillance of US citizens and foreigners. Consequently, the US government has accused Mr Snowden of espionage.

He declares that his disclosure of human rights violations by the US authorities was done in the public interest. According to the Helsinki Foundation for Human Rights no law should prevent revealing human rights abuses and any disclosure of such abuses is, in fact, an exercise of the freedom of expression. At the same time, it must be noted that the US authorities have yet to submit evidence proving that the damage caused by Snowden’s violations of the laws governing disclosure of U.S. state secrets outweighs the public interest in uncovering such information.

The Foundation is concerned that should Mr Snowden be extradited to the US, he may be exposed to inhuman treatment during his pre-trial detention, so the extradition must never take place. The HFHR’s concerns are augmented by the media reports concerning the treatment of another whistleblower, Bradley Manning.

The Foundation subscribes to the position of Human Rights Watch, which points out that the US law guarantees no real protection to persons who expose secret information on human rights violations acting in the public interest. As regards the reports that Mr Snowden has applied for asylum also in Poland, it must be stated that it is possible to make such an application while being abroad. An asylum application is granted by the Head of the Office for Foreigners upon approval of the Minister of Foreign Affairs.

However, to carry out a full asylum procedure Edward Snowden should arrive in Poland, which he cannot do without a valid passport. It must be said that statements of key Polish politicians on the absence of consent to give asylum to Mr Snowden are premature. The HFHR believes that a decision in this case should be made only after the appropriate procedure has been followed and all the circumstances of the case have been established, as provided for by the law.

Apart from asylum, Mr Snowden may use another legal protection mechanism: he can apply for refugee status. Edward Snowden may do so in a country or at the border of a country which is a party to the Geneva Convention on Refugee Status. Such a country should allow him to enter its territory and stay there legally. If Mr Snowden tries to claim refugee status at the border, he should be permitted entry, even without a valid passport. Subsequently, the state authorities should investigate whether there is a risk that the rights of Mr Snowden are likely to be violated by the US authorities and issue a decision on granting him protection.

Notably, under the principle of non-refoulment set out in article 33 of the Geneva Convention, a refugee may not be returned to the frontiers of territories where his life or freedom would be threatened. The parties to the Convention are, among others, Russian Federation, Ecuador and Austria.

Edward Snowden could seek refugee status in Poland only if he was present in the country or at its border. Nevertheless, he may file an application for refugee status in the territory of a country or at the border of a country being a party to the Geneva Convention. Such country’s authorities would be then required to initiate proceedings for granting refugee status.

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