Category Archives: European Court of Human Rights

Hirsi and Others v. Italy – Relinquishment of jurisdiction to the ECtHR Grand Chamber

There is a notice on the European Court of Human Rights web page dated 1 March 2011 stating the following:

“The Chamber dealing with the case of Hirsi and Others v. Italy has relinquished jurisdiction in favour of the Grand Chamber. The applicants, 11 Somali nationals and 13 Eritrean nationals, were part of a group of illegal migrants who left Libya by boat heading for the Italian coast. The application concerns the interception of their boats on the high seas and their immediate return to Libya on board Italian naval vessels.”

Previous history of the case:

On 17 November the Second Section of the European Court of Human Rights communicated the case of Hirsi and others v Italy, Requête no 27765/09.  The case was filed on 26 May 2009 by 11 Somalis and 13 Eritreans who were among the first group of about 200 migrants interdicted by Italian authorities and summarily returned to Libya under the terms of the Libya-Italy agreement which took effect on 4 February 2009.  The Applicants were intercepted on 6 May 2009 approximately 35 miles south of Lampedusa.

Click here for previous post on the case.

More details on this development later.

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Filed under European Court of Human Rights, European Union, Italy, Judicial, Libya, Mediterranean

COE Seminar: Human rights dimensions of migration in Europe (Istanbul, 17-18 Feb)

Thomas Hammarberg, COE Commissioner for Human Rights, and the Turkish Chairmanship of the Council of Europe Committee of Ministers are holding a migration and human rights seminar in Istanbul, 17-18 February.  From the Commissioner’s web site:  The seminar “aims to exchange views on the most important discrepancies between European migration laws and practices and human rights standards, as well as on optimal ways to provide assistance to states in reflecting on and revisiting their migration policies.”

Three general topics will be addressed: Human rights challenges of migration in Europe, Unaccompanied migrant children, and Smuggling of migrants.  Scheduled speakers and participants include:

  • Karim Atassi, UNHCR Deputy Representative to Turkey;
  • Tina Acketoft, PACE Committee on Migration, Refugees and Population;
  • Emily Logan, Irish Ombudsman for Children;
  • Rebecca O’Donnell, Save the Children, Brussels;
  • Elisabet Fura, ECtHR Judge;
  • Martin Fowke, Unit on Trafficking in Persons and Smuggling of Migrants, UNODC;
  • Richard Ares Baumgartner, Frontex Senior External Relations Officer ;
  • Professor Dr. Nuray Ekşi, Chair of Private International Law Department at the Law Faculty of ĺstanbul Kültür University;
  • Professor Theodora Kostakopoulou;

Click here for draft programme.

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Filed under Aegean Sea, Colloques / Conferences, Commissioner for Human Rights, Committee of Ministers, Council of Europe, European Court of Human Rights, Frontex, Turkey, UNHCR, UNODC

WikiLeaks 2009 US Cable: Libya takes back 500 Italy-bound migrants

This US Department of State cable, released by WikiLeaks on 31 Jan 2011, was written in May 2009 and describes the first major interdictions of migrants by Italy under the terms of the Italian-Libyan Friendship Agreement.  The events described in the cable are the subject of the communicated case currently pending before the Second Section of the European Court of Human Rights, Hirsi and others v Italy, Requête no 27765/09.  Click here for previous post on the Hirsi case.

Excerpts from the Cable:

“Implementation of a key component of the Italian-Libyan “friendship agreement” has begun, as Italy has returned approximately 500 migrants rescued and interdicted at sea to Libya over the past week. Libyan authorities have notified the local offices of IOM and UNHCR before returning boats arrive in Tripoli to facilitate medical screening, identification, and consular notification. The returnees are then placed in immigrant detention centers. UNHCR has interviewed a number of the detained returnees, noting that only “a handful” of the 500 are likely asylum seekers – mostly of Somali and Eritrean origin; the rest are economic migrants….”

“Libya has accepted the return of three tranches of migrants interdicted or rescued at sea by Italian authorities in recent days, beginning implementation of a key component of the Italian-Libyan “friendship agreement” signed last August aimed at reducing the flow of migrants from Libya to Italy. In each case, the Italians contacted the Libyan navy, which agreed to accept their return to Libya. The Libyan navy did not/not agree to take the migrants on Libyan vessels; rather, in one case, it instructed Italian energy company ENI, which operates an offshore platform in the area, to tow an African vessel to shore; in the other cases, it permitted the Italian navy to transport the migrants back to Tripoli. Once in Tripoli, according to the Italian Embassy, the migrants were processed in an orderly fashion and sent to a detention center.”

“The first group of 227 returnees arrived in Tripoli on May 7. A regional IOM team in Tripoli implementing a G/TIP-funded workshop to enhance Libya’s response to human smuggling and trafficking was on hand to help screen the arrivals and visit one of the three detention centers where the migrants were held….”

“IOM staff here characterized the recent returnees as “the usual suspects” of Nigerian, Nigerien, Ghanaian, and South Asian nationality. The UNHCR mission reportedly interviewed many of the returnees and found fewer than 10 migrants who were likely asylum seekers including “four or five” Somalis and “a handful” of Eritreans….”

Click here or here for the full cable.

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PACE President Çavusoglu: ECtHR Decision “explodes myth that Europe is able to protect the rights of refugees”

PACE President Mevlüt Çavusoglu issued a statement regarding today’s Grand Chamber decision in the CASE OF M.S.S. v. BELGIUM AND GREECE (Application no. 30696/09) (also FR):

“‘The European Court of Human Rights today delivered a milestone judgment damning how Europe is protecting its refugees, asylum seekers and irregular migrants,’ today said Council of Europe Parliamentary Assembly (PACE) President Mevlüt Çavusoglu.

‘While the M.S.S. v. Belgium and Greece judgment is only against two member states, the implications of the judgment will be rippling through the capitals of Europe,’ he added. ‘The myth that European Union member states are safe places to return asylum seekers has been exploded by the European Court of Human Rights.’

The President stated that the Court had found massive deficiencies in detention conditions in Greece and in the procedures and remedies designed to safeguard the rights of asylum seekers, refugees and irregular migrants in Europe. He commented that Greece was not alone in failing on detention safeguards and that the Assembly had recently addressed recommendations to all member states on steps to improve detention facilities in Europe.

‘What is also clear from this judgment is that the so-called EU ‘Dublin system’ for determining the state responsible for deciding an asylum decision has to be changed as a matter of urgency. It is based on the false premise that EU member states are all safe and able to cope. They are not, and the ‘Dublin system’ creates enormous burdens on front-line states, such as Greece,’ the President declared.

He called on the EU to work with the Council of Europe, UNHCR and others, to solve the problem of returns under the “Dublin system” and reiterated a concern repeatedly highlighted by the Assembly that Europe needs to make its asylum systems fairer (see PACE Resolution 1695 (2009)) and needs clear rules on detention of irregular migrants and asylum seekers (see PACE Resolution 1707 (2010)).

‘Europe has European Prison Rules applying to criminals, but we still do not have similar rules for irregular migrants and asylum seekers who have committed no crime,’ he concluded.”

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Decision from Grand Chamber of ECtHR: Returning Asylum Seekers to Greece Violates European Conv. on Human Rights

The Grand Chamber of the European Court of Human Rights issued a decision today in the CASE OF M.S.S. v. BELGIUM AND GREECE (Application no. 30696/09) (also FR) and concluded that Belgium should not have returned an Afghan asylum seeker to Greece under the Dublin II regulation which mandates that asylum claims are to be considered in the state where the asylum seeker first entered Europe.

This is the first decision from the ECtHR addressing the application of the Dublin II regulation.  According to European Voice, the “Court [currently] has around 960 cases pending that relate to the Dublin regulation, against the Netherlands, Finland, Belgium, the United Kingdom and France, most of them concerning expulsions to Greece.”

I have not had a chance to read the decision closely yet, but here is some basic information about today’s decision (more to follow in a subsequent post):

Excerpts from the Court’s Press Release (click here for FR):

“In today’s Grand Chamber judgment in the case M.S.S. v. Belgium and Greece (application no. 30696/09), which is final, the European Court of Human Rights held, by a majority, that there had been:

A violation of Article 3 (prohibition of inhuman or degrading treatment or punishment) of the European Convention on Human Rights by Greece both because of the applicant’s detention conditions and because of his living conditions in Greece;

A violation of Article 13 (right to an effective remedy) taken together with Article 3 by Greece because of the deficiencies in the asylum procedure followed in the applicant’s case;

A violation of Article 3 by Belgium both because of having exposed the applicant to risks linked to the deficiencies in the asylum procedure in Greece and because of having exposed him to detention and living conditions in Greece that were in breach of Article 3;

A violation of Article 13 taken together with Article 3 by Belgium because of the lack of an effective remedy against the applicant’s expulsion order.”

ECRE released a statement describing the decision as a “major blow to the Dublin system.”  Excerpts from the ECRE statement:

“Bjarte Vandvik, ECRE Secretary General, stated: ‘This judgment is a major blow to the Dublin system. The assumption that all EU Member States respect fundamental rights and that it is therefore safe to automatically transfer asylum seekers between EU countries no longer stands. Europe must seriously rethink the Dublin system and replace it with a regime that ensures the rights of asylum seekers are respected’.

This judgment will affect many asylum seekers in Europe. In 2010 alone, EU countries requested Greece to examine the applications of almost 7,000 asylum seekers who had entered the EU through Greece. Their situation will now need to be re-examined in light of this ruling.

Bjarte Vandvik [also] stated: ‘European countries must comply with the Court’s ruling, stop sending asylum seekers back to Greece, and examine asylum applications themselves until a fair asylum system is in place in Greece’.

The Dublin system fails refugees and Member States and needs to be changed.  This ruling reflects the serious shortcomings in the asylum procedure in Greece and in Belgium and it also highlights the flaws in the Dublin system itself. ECRE has long stressed that Dublin shifts responsibility for asylum seekers to states at Europe’s frontiers. Also, it allows refugees to be sent back to European countries where their fundamental rights are not respected.

As a first step in the right direction, ECRE supports the Commission proposal to review the Dublin Regulation, as it introduces significant humanitarian reforms and important procedural safeguards. For example, the proposal makes it easier for asylum seekers to join family members living in Europe, protects the rights of children who have arrived alone and ensures the continuity of care for vulnerable persons.

However, these are only temporary measures that do not solve the sometimes devastating impact of the Dublin system on asylum seeker’s human rights. Ultimately the Dublin Regulation should be abolished and replaced by a more humane and equitable system that considers the connections between individual asylum seekers and particular Member States.”

Click here for full ECRE Statement on the decision.

Click here (ECHR Blog) and here (Free Movement Blog) for some initial additional thoughts about the decision.

Click here, here, and here for articles.

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Filed under Belgium, Commissioner for Human Rights, European Court of Human Rights, European Union, Frontex, Greece, Judicial, News

EU-Turkey Readmission Agreement Negotiations Continuing

The Turkish paper, Today’s Zaman, reported that Turkey and the EU have reached agreement on 19 articles of a draft readmission agreement, but have been unable to reach agreement on 5 articles.

The news article states that Turkey wants “the readmission agreement [to include] strong funding from the EU, mirroring similar funding that is available to member states under the “resettlement policies” within the European Refugee Fund (ERF), which was established to support and improve the efforts of member states to grant refugee or asylum status to beneficiaries.”

“The [Turkish] government also fears that, without a strong and clear readmission agreement in place, vetting thousands of immigrants and asylum seekers in reception centers while awaiting deportation will open a Pandora’s box for Turkey in the European Court of Human Rights (ECtHR). Turkey ranks second after Russia in terms of the number of cases ending up in the ECtHR and is trying to reduce them by introducing constitutional changes on fundamental rights, due to be submitted to a referendum on Sept. 12.”

“In April, for example, the ECtHR decided in three out of four cases involving refugees recognized by the UN High Commissioner for Refugees (UNHCR) that Turkey would violate Article 3 of the European Convention on Human Rights (ECHR) if the expulsion orders were enforced. The court also criticized the unlawfulness and the conditions of their detention in a police station and in some of the detention centers where they had been held awaiting deportation.”

Click here for article.

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ECtHR Decision in Medvedyev and Others v France

The Grand Chamber of the European Court of Human Rights issued its decision in Case of Medvedyev and Others v. France (Application no. 3394/03) on 29 March.  The applicants in the case were crew members on a Cambodian ship intercepted by the French Navy near Cape Verde.  The crew members were brought to France where they were convicted of drug smuggling.  Proceedings were then brought by the crew members before the ECtHR to challenge, among other things, the legality of their detention at sea.

An analysis of the decision by Douglas Guilfoyle, Lecturer in Law at University College London, is posted on EJIL: Talk! – “ECHR Rights at Sea: Medvedyev and others v. France.

From the Registrar’s Press Release:

“Article 1- The Court had established in its case-law that the responsibility of a State Party to the European Convention on Human Rights could arise in an area outside its national territory when as a consequence of military action it exercised effective control of that area, or in cases involving the activities of its diplomatic or consular agents abroad and on board aircraft and ships registered in, or flying the flag of, the State concerned. France had exercised full and exclusive control over the [ship] and its crew, at least de facto, from the time of its interception, in a continuous and uninterrupted manner. Besides the interception of the [ship] by the French Navy, its rerouting had been ordered by the French authorities, and the [ship’s] crew had remained under the control of the French military throughout the voyage to Brest. Accordingly, the applicants had been effectively within France’s jurisdiction for the purposes of Article 1.

Article 5 § 1 – The applicants had been under the control of the special military forces and deprived of their liberty throughout the voyage, as the ship’s course had been imposed by the French military. The Court therefore considered that their situation after the ship was boarded had amounted to a deprivation of liberty within the meaning of Article 5. The Court was fully aware of the need to combat international drug trafficking and could see why States were so firm in that regard. However, while noting the special nature of the maritime environment, it took the view that this could not justify the creation of an area outside the law. [***] Accordingly, the deprivation of liberty to which the applicants had been subjected between the boarding of their ship and its arrival in Brest had not been “lawful”, for lack of a legal basis of the requisite quality to satisfy the general principle of legal certainty. The Court therefore held by ten votes to seven that there had been a violation of Article 5 § 1.

Article 5 § 3 – The Court reiterated that Article 5 was in the first rank of the fundamental rights that protected the physical security of an individual, and that three strands in particular could be identified as running through the Court’s case-law: strict interpretation of the exceptions, the lawfulness of the detention and the promptness or speediness of the judicial controls, which must be automatic and must be carried out by a judicial officer offering the requisite guarantees of independence from the executive and the parties and with the power to order release after reviewing whether or not the detention was justified. While the Court had already noted that terrorist offences presented the authorities with special problems, that did not give them carte blanche to place suspects in police custody, free from effective control. The same applied to the fight against drug trafficking on the high seas. [***] At the time of its interception the [ship] had been off the coast of the Cape Verde islands, and therefore a long way from the French coast. There was nothing to indicate that it had taken any longer than necessary to escort it to France, particularly in view of the weather conditions and the poor state of repair of the vessel, which made it impossible for it to travel any faster. In view of these “wholly exceptional circumstances”, it had been materially impossible to bring the applicants before the investigating judges any sooner, bearing in mind that they had been brought before them eight or nine hours after their arrival, a period which was compatible with the requirements of Article 5 § 3. The Court therefore held by nine votes to eight that there had been no violation of Article 5 § 3.”

Click here for the EJIL: Talk! analysis by Douglas Guilfoyle.

Click here for the Press Release from the Registrar.

Click here (EN) or here (FR) for the Decision of the Grand Chamber.

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NRC Article: Seaborne interception of immigrants tested in ECtHR

From NRC Handelsblad (Netherlands):  “None of them have ever set foot on European soil. Most are incarcerated in Libyan detention centres. Some may have already been sent back to their countries of origin. Yet they are filing suit against the Italian state in the European Court of Human Rights (ECHR). The plaintiffs are 24 immigrants from Somalia and Eritrea who tried to sail from Libya to Italy on May 6, 2009. They were intercepted by the Italian coast guard 35 kilometres off the island of Lampedusa and immediately sent back to Libya. Back in the north African country, the would-be immigrants were put in touch with two Italian immigration lawyers, who then brought their case to the ECHR in Strasbourg.

The case is unique, said Thomas Spijkerboer, a professor of migration law at Amsterdam’s Vrije Universiteit. ‘For the first time, Europe’s highest court for human rights will look into the most controversial policy combating illegal seaborne migration any European state has implemented so far,’ he said. …

The Italian lawyer Anton Giulio Lana has been granted power of attorney to act on the behalf of 24 returned would-be immigrants. Lana was put in touch with his clients by an international NGO that operates in Libya. Speaking on the phone from Rome, Lana explained: ‘I would rather not say what NGO is helping us. It needs to be able to operate in Libya for the time being.’  According to Lana, Italy has violated Article 3 of the European Convention on Human Rights that prohibits ‘torture or inhuman or degrading treatment or punishment’. Deported immigrants run the risk of being exposed to such treatment in Libya. The convention also forbids collective expulsion of foreigners, and according to refugee law, it is illegal to deport asylum seekers to a country where they could face persecution.”

Click here for full article.

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UNHCR Files ECtHR Third Party Intervention in Hirsi v. Italy

The UNHCR submitted a third party intervention to the European Court of Human Rights in the case of Hirsi and others v Italy, Requête no 27765/09, which was filed on 26 May 2009 by 11 Somalis and 13 Eritreans who were among the first group of about 200 migrants interdicted by Italian authorities and summarily returned to Libya pursuant to Italy’s push-back practice.  The case was communicated by the Second Section of the Court on 17 November 2009.

The UNHCR’s intervention “addresses the practice and justification of ‘push-back’ operations by the Italian government, the conditions for reception and seeking asylum in Libya and the extraterritorial scope of the principle of non-refoulement and pursuant legal obligations concerning the rescue and interception of people at sea.”

Excerpts from the intervention:

“[***]  2.2.1  On 6 May 2009, the Italian government, in cooperation with the government of Libya, initiated the so-called “push-back policy” by intercepting people, including those who may be in need of international protection, on the high seas and returning them to Libya. This policy was a departure from the previous practice where Italian naval forces had regularly disembarked such persons in Lampedusa or Sicily. Based on UNHCR’s estimates, in 2008 some 75% of sea arrivals in Italy applied for asylum, and 50% of those who applied received some form of protection after their claims were assessed in the Italian asylum procedure.

2.2.2  According to the Italian authorities, from 6 May to 6 November 2009, a total of nine operations were carried out, returning a total of 834 persons to Libya. The precise modalities of the operations have not been made public and were not otherwise fully disclosed to UNHCR. …

4.1  The extraterritorial scope of the principle of non-refoulement under Article 33 (1) of the 1951 Convention…

4.1.2  The territorial scope of Article 33 (1) is not explicitly defined in the 1951 Convention. The meaning, purpose and intent of the provision demonstrate, in UNHCR’s view, its extraterritorial application, e.g., to situations where a state acts outside its territory or territorial waters. Furthermore, the extraterritorial applicability of human rights obligations contained in various instruments supports this position ….

4.2  The extraterritorial scope of the principle of non-refoulement in human rights law

4.2.1  The complementary and mutually reinforcing nature of international human rights law and international refugee law speak strongly in favour of delineating the same territorial scope for all expressions of the non-refoulement principle, whether developed under refugee or human rights law….

4.3  The principle of non-refoulement in the context of interception and search and rescue operations on the high seas

4.3.1  As stated earlier, the principle of non-refoulement applies whenever a state exercises jurisdiction. Jurisdiction can be based on de jure entitlements and/or de facto control. De jure jurisdiction on the high seas derives from the flag state jurisdiction.  De facto jurisdiction on the high seas is established when a state exercises effective control over persons. Whether there is effective control will depend on the circumstances of the particular case.

4.3.2  Where people are intercepted on the high seas, rescued and put on board a vessel of the intercepting state, the intercepting state is exercising de jure as well as de facto jurisdiction. While de jure jurisdiction applies when the people on board a ship are sailing under the flag of the intercepting state, it is also exercised – relevant to the case of “push-backs” – where the intercepting state has taken the persons on board its vessel, bringing them under its full (effective) control. In UNHCR’s view, as becomes clear from section 2.2 above, the Italian authorities were in full and effective control of the persons throughout the “push-back” operations until the formal hand-over to the Libyan authorities. Article 4 of the Italian Code of Navigation specifies that Italian ships on the high seas are considered as Italian territory.

4.3.3  When jurisdiction on the high seas has been established, the obligations deriving from it in relation to the principle of non-refoulement should be examined. The UNHCR’s Executive Committee has emphasized the fundamental importance of fully respecting this principle for people at sea, underlining that: ‘interception measures should not result in asylum-seekers and refugees being denied access to international protection, or result in those in need of international protection being returned, directly or indirectly, to the frontiers of territories where their life or freedom would be threatened on account of a Convention ground, or where the person has other grounds for protection based on international law.’

4.3.4  In UNHCR’s view, the situation in which a state exercises jurisdiction on the high seas over people on board its vessels requires respect for the principle of non-refoulement. It follows that states are obliged, inter alia, not to hand over those concerned to the control of a state where they would be at risk of persecution (direct refoulement), or from which they would be returned to another country where such a risk exists (indirect refoulement). The state exercising jurisdiction needs to ensure that asylum-seekers are able to access fair and effective asylum procedures in order to determine their needs for international protection….

4.3.6  For interception or rescue operations carried out by EU Member States, UNHCR has clarified that, “… disembarkation of people rescued in the Search and Rescue (SAR) area of an EU Member State should take place either on the territory of the intercepting/rescuing State or on the territory of the State responsible for the SAR. This will ensure that any asylum-seekers among those intercepted or rescued are able to have access to fair and effective asylum procedures. The disembarkation of such persons in Libya does not provide such an assurance”.

5.  Conclusion

5.1  UNHCR considers that the interception of persons on the high seas between Italy and Libya, their transfer from Italian to Libyan custody, and their return to Libya, may be at variance with the principle of non-refoulement and in contradiction to Article 3 of the ECHR. By returning persons to Libya without an adequate assessment of their protection needs, the Italian authorities appear not to have sufficiently taken into account the potential risk of refoulement, including indirect refoulement, and other possible violations of fundamental rights upon return of the affected persons to Libya. The lack of an asylum system in Libya means that there are not sufficient safeguards to ensure that persons in need of international protection will be recognized as such and accorded legal status and associated entitlements that could ensure their rights, including to protection against refoulement, are not violated. The risk of chain refoulement denying international protection, especially to Eritrea, cannot be excluded.”

Click here for the full text of the UNHCR intervention.

Click here for an earlier post on the case.

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Filed under European Court of Human Rights, Italy, Judicial, Libya, Mediterranean, News, UNHCR

COE Human Rights Commissioner Expresses Concern to ECtHR Over Greece’s Treatment of Asylum Seekers

Council of Europe Human Rights Commissioner Thomas Hammarberg has made public the third party intervention he submitted to the European Court of Human Rights on 10 March.  The intervention was made at the invitation of the ECtHR pursuant to Article 36, paragraph 2 of the ECHR, and is the first such submission of its kind by the Commissioner.

The intervention was submitted in case 26494/09 AHMED ALI v. the Netherlands and Greece, and thirteen related cases.  The cases all deal with the return of asylum seekers from the Netherlands to Greece pursuant to the EC Dublin Regulation.

The Commissioner’s Office notes in a Press Statement that “[w]ith the entry into force of Protocol No. 14 to the [ECHR], the Commissioner will [now] have the right to intervene proprio motu as third party in the Court’s proceedings.”

Excerpts from the Commissioner’s intervention before the ECtHR:

“Introduction – [***]

3. The protection of the human rights of asylum seekers and refugees is a priority theme of the Commissioner’s present work concerning all Council of Europe member states. The Commissioner has repeatedly stressed the importance of guaranteeing the individual right to seek and enjoy asylum and has addressed a number of relevant recommendations to member states. [***]

I. Observations on the current framework of refugee protection in Greece

6. The Commissioner is fully cognisant of the considerable, mixed migration (immigrants and asylum seekers) flow pressures that have been exerted on Greece, as is the case for other Mediterranean Council of Europe member states, for many years. The increase of irregular migration into Greece that has occurred particularly in the last five years has further strained this country’s resources. Nonetheless, the complex international phenomenon of migration should be dealt with by Greece and all other Council of Europe member states concerned in a manner which is not only efficient but also effectively respectful of the Council of Europe human rights standards.

7. Greece received the sixth largest number of refugee applicants in the EU during the first half of 2009 (9 800 applications).

8. In 2009, a total of 15 928 asylum applications were lodged in Greece; there were 11 recognitions of Convention refugee status and 18 grants of humanitarian status or subsidiary protection. The Commissioner has noted with concern that in 2009 the recognition rate at first instance was 0,04% for Convention refugee status and 0,06% for the other two statuses. The pending applications at first instance in 2009 reached 3 122. As regards asylum appeals in 2009, there were 12 095 appeals, 25 recognitions of Convention refugee status and 11 grants of humanitarian or subsidiary protection. The respective recognition rates on appeal were 2,87% and 1,26%. On 10 February 2010 the Commissioner was informed by the Minister of Citizen Protection of the fact that the total of pending asylum claims in early February 2010 was as high as 44 560, and found this to be worrying.

9. The Commissioner noted that during the first ten months of 2009 Greece received 7 857 applications from other EU member states to receive back refugee applicants under the Dublin Regulation. Of these applications, 2 770 were accepted and 106 rejected. The final transfers to Greece during that period totalled 995. [***]

II. Major issues concerning the asylum procedure in Greece and human rights safeguards

Legal framework  [***]

Asylum seekers’ access to domestic and international remedies

23. The Commissioner recalls his Recommendation concerning the rights of aliens wishing to enter a Council of Europe member State and the enforcement of expulsion orders, where he stresses the need for the right of judicial remedy within the meaning of Article 13 of the Convention not only to be guaranteed in law but also to be granted in practice when a person alleges that the competent authorities have contravened or are likely to contravene a right guaranteed by the Convention. [***]

27. In view of the above, the Commissioner is worried that asylum seekers in Greece face a serious, real risk of being deprived of their right to an effective remedy in respect of the violations of the Convention of which they allege to be victims, which is guaranteed under Article 13 of the Convention and Article 39 of the Directive 2005/85/EC. The notion of an effective remedy under Article 13 requires a scope of review conducted by a domestic court able to address the key elements of whether there has been a violation of the Convention.

28. As regards access to the European Court of Human Rights, although this is guaranteed in principle for every individual within Greece’s jurisdiction, lodging an application before the Court appears to be very difficult in practice. The same applies for requests made under Rule 39 of the Rules of the Court (interim measures): the number of such requests introduced from and against Greece seems to be quite low compared to other state parties, and can be linked to difficulties, described in other parts of the present written submission, in accessing interpretation services and lawyers, in particular for people in detention, and to the lack of proper legal information available in general.

Protection of asylum seekers from refoulement

29. During both his visits the Commissioner was informed by migrants he met and by Greek refugee lawyers about instances of non registration by the Police of asylum claims and of instances of refoulement, especially from Greece to Turkey. Such forced returns have occasionally taken place before the migrants were able to apply for asylum, but also concern ‘pink card’ holders registered as asylum seekers in Greece. Characteristically, during the Commissioner’s discussions with migrant detainees at the Feres border guard station in December 2008, one of them reported that of the group of 65 persons who were arrested in 2008, having crossed the Evros river, 50 of them were ‘immediately deported’. [***]

31. In this context, it is noted that despite the Commissioner’s recommendations, Greece has not as yet acceded to the 1963 Protocol No. 4 to the European Convention on Human Rights which, inter alia, proscribes the collective expulsion of aliens, while Turkey still adheres to the geographical limitation of the 1951 UN Refugee Convention, thus excluding from refugee status persons coming from outside of Europe.

32. During his visit to Greece in February 2010 the Commissioner was informed of and concerned at another reported case of refoulement concerning a group of 43 Kurds who had arrived at the town of Chania, Crete on 18 July 2009; 17 of them applied for refugee status. According to NGO reports, on 27 July 2009 they were all transferred to the aliens’ detention centre of Venna (North East Greece) from where they were subsequently expelled to Turkey. A series of other collective expulsions of migrant groups, ranging from 30 to 120 persons, to Turkey (through the land border of the Evros department) from various eastern Aegean islands were reported by Greek refugee lawyers to have occurred in July and August 2009. The Commissioner was informed by Greek refugee lawyers of more similar collective expulsions that have reportedly occurred in December 2009, January and February 2010.

33. The Commissioner underlines that such practices are not compatible with member states’ obligations recalled by the Committee of Ministers Twenty Guidelines on Forced Returns (especially Guideline 3 – prohibition of collective expulsion) and with the states’ fundamental obligation under the Convention not to return a person to a country where they would face a real risk of being subjected to treatment contrary to Article 3, or even Article 2. The Commissioner is concerned that asylum seekers returning to Greece by virtue of the Dublin Regulation may face such risks, jeopardising the enjoyment by them of their human rights enshrined in the Convention. [***]

Conclusions

47. In conclusion, the Commissioner considers that current asylum law and practice in Greece are not in compliance with international and European human rights standards. In particular:

– access to refugee protection remains highly problematic, notably due to the non-functioning of the first instance Advisory Refugee Committees, lack of proper information on asylum procedures and legal aid that should be available to potential or actual asylum seekers, widely reported instances of refoulement or non-registration of asylum claims;

– the quality of asylum decisions at first instance is inadequate, notably because of structural deficiencies and lack of procedural safeguards, in particular concerning the provision of legal aid and interpretation;

– existing domestic remedy against negative asylum applications is not effective;

– asylum seekers, including persons transferred under the Dublin Regulation, face extremely harsh living conditions in Greece.

48. Since the beginning of his mandate, the Commissioner has been following developments relating to migration, and especially asylum, in Greece. The Commissioner is pleased to note the new Greek government’s decision and willingness, shown to him during his visit in February 2010, to overhaul the refugee protection system and overcome its current serious, chronic and structural deficiencies.

49. The Commissioner fully supports these efforts and has urged the Greek authorities to proceed and engage with determination and commitment in the necessary legislative and administrative changes that would bring the Greek asylum system in line with international and European human rights standards.”

Click here for full submission to ECtHR.

Click here for the Commissioner’s Press Statement.

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ECtHR Communicates Case of ‘Hirsi et Autres c. Italie’ Relating to Italy’s Summary Migrant Interdiction Programme

On 17 November the Second Section of the European Court of Human Rights communicated the case of Hirsi and others v Italy, Requête no 27765/09.  The case was filed on 26 May 2009 by 11 Somalis and 13 Eritreans who were among the first group of about 200 migrants interdicted by Italian authorities and summarily returned to Libya under the terms of the Libya-Italy agreement which took effect on 4 February 2009.  The Applicants were intercepted on 6 May 2009 approximately 35 miles south of Lampedusa.

The Applicants allege violations of numerous provisions of the European Convention on Human Rights including:

Protocol 4 Art. 4 Prohibition of collective expulsion of aliens;

Art. 3 Torture;

Art. 1 (1) General undertaking/HPC;

Art. 13 Effective remedy/national authority; and

Art. 3 Inhuman or degrading treatment.

The Statement of facts, complaints and questions put by the Court to the parties is currently available only in French:

GRIEFS

Invoquant l’article 3 de la Convention, lu en conjonction avec l’article 1 de la Convention, les requérants se plaignent de ce que les modalités de leur renvoi en Libye, ainsi que leur séjour dans ce pays ou leur rapatriement dans leurs pays respectifs les soumettrait au risque de subir des tortures ou des traitements inhumains et dégradants.

Invoquant l’article 4 du Protocole no 4, lu en conjonction avec l’article 1 de la Convention, ils affirment avoir fait l’objet d’une expulsion collective atypique et dépourvue de toute base légale.

Invoquant l’article 13, les requérants dénoncent l’impossibilité de contester devant les autorités italiennes leur renvoi en Libye et le risque de rapatriement dans leurs pays d’origine.

QUESTIONS AUX PARTIES ET DEMANDES D’INFORMATIONS

QUESTIONS

1.  Les faits dont les requérants se plaignent en l’espèce relèvent-ils de la juridiction de l’Italie ?

2.  La décision des autorités italiennes d’intercepter en haute mer les embarcations et de renvoyer immédiatement les requérants, compte tenu notamment des informations provenant de sources internationales et concernant les conditions des migrants clandestins en Libye, a-t-elle exposé les requérants au risque d’être soumis à des traitements contraires à l’article 3 de la Convention dans ce pays ?

3.  Compte tenu des allégations des requérants (voir formulaire de requête annexé), y a-t-il des motifs sérieux de craindre que le rapatriement dans leurs pays d’origine, soit la Somalie et l’Érythrée, les exposerait à des traitements contraires à l’article 3 ?

4.  Le renvoi des requérants en Libye de la part des autorités italiennes s’analyse-t-il en une expulsion contraire à l’article 4 du Protocole no 4 ?

5.  Les intéressés ont-ils eu accès à un recours effectif devant une instance nationale garanti par l’article 13 de la Convention pour faire valoir leurs droits garantis par les articles 3 et 4 du Protocole no 4 ?

DEMANDES D’INFORMATIONS

Le gouvernement défendeur est également invité à fournir à la Cour toute information disponible concernant :

– Le nombre de migrants irréguliers arrivés mensuellement sur les côtes italiennes, et en particulier à Lampedusa, au cours des dernières années ;

– L’entité et l’origine du phénomène migratoire en Libye ; la législation en la matière en vigueur dans ce pays ; le traitement réservé par les autorités libyennes aux migrants irréguliers arrivés en Libye directement ou suite au renvoi depuis l’Italie.

Le Gouvernement est également invité à produire à la Cour les textes des accords signés par les gouvernement italien et le gouvernement libyen les 27 décembre 2007 et 4 février 2009.

Il est enfin invité à expliquer à la Cour le rapport existant entre les opérations prévues par les accords bilatéraux avec la Libye et l’activité de l’ « Agence européenne pour la gestion de la coopération opérationnelle aux frontières extérieures des États membres de l’Union européenne (Frontex) ».

Click here for “The Statement of facts, complaints and questions put by the Court.”

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Filed under European Court of Human Rights, Italy, Judicial, Mediterranean