Category Archives: Judicial

Is Morocco Allowing More Migrant Boat Departures in Protest of CJEU Judgment Finding EU-Morocco Fisheries Agreement Not Applicable to Western Sahara?

An article in Sunday’s Diario de Cadiz by Encarna Maldonado discusses a moderate but noticeable increase in the number of migrant boats reaching Spain from Morocco and the possibility that the Moroccan government may be relaxing its migration patrols to protest last month’s Court of Justice of the EU judgment in Council v Front Polisario, Case C-104/16 P, 21 Dec 2016, where the CJEU concluded that the agriculture and fisheries agreements the EU has with Morocco are not applicable to the Western Sahara because Western Sahara has a status that is separate and distinct from Morocco. Morocco previously suspended diplomatic relations with the EU over its disagreement with an earlier judgment in the case by the General Court.

From Diario de Cadiz: “The arrival of migrants in small boats in Andalusia grew considerably since the start of 2016, almost coinciding with the [General Court’s] first statement (December 2015) supporting the complaint of the Polisario Front against the trade agreement that, among other things, allows part of the Spanish fishing fleet to fish in Moroccan waters. Although surveillance and rescue boats Andalusia recorded the less last year than in 2015 (354 vs. 491), the number of people traveling in these boats increased by 81% from 3,369 to 6,109 migrants. The appeal to the Court of Justice of the European Union and especially the judgment, issued on December 21, has coincided with a new surge in small boats to the Andalusian coast….”

The article also notes that some experts question whether the surge is related directly to the CJEU judgment.

Click here for article. [ES]

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ECtHR: Italy’s Use of Summary Procedures to Return Tunisian Migrants Constituted Unlawful Collective Expulsion

The ECtHR, Second Section, issued a judgment on 1 September in Khlaifia et autres c. Italie (Requête no 16483/12) (official judgment in French) finding that the summary procedures used by Italy in 2011 to quickly return thousands of Tunisians who were reaching Italy by sea during the height of the Arab Spring violated the prohibition of collective expulsion of aliens contained in Art. 4 of Protocol 4 of the ECHR. (Judges SAJÓ and VUĊINIĊ did not find that collective expulsion had occurred and filed a dissenting opinion.) The Court also found violations of Art. 3, Art. 5, §§ 1, 2, 5, and Art. 13 (inhuman or degrading treatment, failure to promptly explain basis for detention, inability to challenge detention, lack of an effective remedy).

This is the fifth time that the ECtHR has found a violation of the collective expulsion prohibition. (See Čonka v. Belgium, no. 51564/99, § 62-63, ECHR 2002‑I; Georgia v. Russia (I) [GC], no. 13255/07, § 175, ECHR 2014;  Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 185, ECHR 2012; Sharifi and Others v. Italy and Greece, no. 16643/09, 21 October 2014.)

The Court acknowledged that unlike the applicants in Hirsi Jamaa, the Tunisian applicants in Khlaifia had been subjected to individualized identification and processing by Italian authorities, but under the circumstances the Court did not consider an identification procedure standing alone to be sufficient:

“156. [T]he Court is of the opinion that the mere implementation of an identification procedure is not sufficient to exclude the existence of collective expulsion. … [T]he expulsion orders did not contain any reference to the personal circumstances of the affected persons; the Government did not produce any document that could prove that individual interviews regarding the specific situation of each applicant would have occurred before the adoption of these [expulsion] orders; many people of the same origin experienced, at the time of the incriminating facts, the same fate as the applicants; [Italy’s] bilateral agreements with Tunisia … have not been made public and provided for the repatriation of irregular Tunisian migrants through simplified procedures, based on the simple identification of the person concerned by Tunisian consular authorities.”

The procedures at issue occurred during the 2011 Arab Spring when North Africa and the EU experienced significant movements of migrants and refugees. The Court took note of these exceptional circumstances but made clear that such circumstances do not excuse a state from complying with its obligations under the ECHR.  (See paras 127-128.)

The Court’s judgment should serve as a caution to the European Commission, EASO, Frontex, and EU member states as they consider new streamlined procedures to process the refugees and migrants reaching Europe; procedures must provide for meaningful individualized processing and individuals must be afforded a meaningful opportunity to challenge an expulsion order, among other requirements. The dissenting opinion of Judges SAJÓ AND VUĊINIĊ (in English), concluding that there had not been a collective expulsion, is well reasoned and reviews the history of the collective expulsion prohibition.

This is an excerpt from the Court’s judgment. The official version is only available in French, the English translation is mine:

“2. Appréciation de la Cour
2. Findings of the Court

153. La Cour observe qu’en l’espèce les requérants ont fait l’objet de décrets de refoulement individuels. Ces derniers étaient cependant rédigés dans des termes identiques, les seules différences étant les données personnelles des destinataires.

153. The Court observes that in this case the applicants were the subject of individual expulsion orders. They were, however, drafted in identical terms, the only differences being the personal information of the recipients.

154. La Cour a déjà précisé que le fait que plusieurs étrangers fassent l’objet de décisions semblables ne permet pas en soi de conclure à l’existence d’une expulsion collective lorsque chaque intéressé a pu individuellement exposer devant les autorités compétentes les arguments qui s’opposaient à son expulsion. La Cour a également jugé qu’il n’y a pas violation de l’article 4 du Protocole no 4 si l’absence de décision individuelle d’éloignement est la conséquence du comportement fautif des personnes intéressées (Hirsi Jamaa et autres, précité, § 184).

154. The Court has already held that the fact that multiple foreigners are subject to similar decisions does not in itself lead to the conclusion that there was collective expulsion when each person was individually able to present arguments against expulsion to competent authorities. The Court has also held that there is no violation of Article 4 of Protocol No. 4 if the absence of individual expulsion decisions is due to the wrongful conduct of the affected persons (Hirsi Jamaa and Others, cited above, § 184).

155. La Cour relève de surcroît qu’à la différence de l’affaire Hirsi Jamaa et autres (précité, § 185), en l’espèce, à l’instar des autres migrants débarqués sur l’île de Lampedusa en septembre 2011, les requérants ont fait l’objet d’une procédure d’identification. Le Gouvernement le souligne à juste titre (paragraphe 152 ci-dessus). Les requérants reconnaissent par ailleurs qu’immédiatement après leur débarquement à Lampedusa, les autorités de frontière italiennes ont enregistré leur identité et relevé leurs empreintes (paragraphe 149 ci dessus).

155. The Court further notes that, unlike the case of Hirsi Jamaa and Others (cited above, § 185), in this case, like the other migrants who landed on Lampedusa in September 2011, the applicants were the subject of an identification procedure. The Government rightly points this out (paragraph 152 above). The applicants also recognize that immediately after landing in Lampedusa, the Italian border authorities registered their identity and took their fingerprints (paragraph 149 above).

156. La Cour est cependant d’avis que la simple mise en place d’une procédure d’identification ne suffit pas à exclure l’existence d’une expulsion collective. Elle estime de surcroît que plusieurs éléments amènent à estimer qu’en l’espèce l’expulsion critiquée avait bien un caractère collectif. En particulier, les décrets de refoulement ne contiennent aucune référence à la situation personnelle des intéressés ; le Gouvernement n’a produit aucun document susceptible de prouver que des entretiens individuels portant sur la situation spécifique de chaque requérant auraient eu lieu avant l’adoption de ces décrets ; un grand nombre de personnes de même origine a connu, à l’époque des faits incriminés, le même sort des requérants ; les accords bilatéraux avec la Tunisie (paragraphes 28-30 ci dessus) n’ont pas été rendus publics et prévoyaient le rapatriement des migrants irréguliers tunisiens par le biais de procédures simplifiées, sur la base de la simple identification de la personne concernée de la part des autorités consulaires tunisiennes.

156. However, the Court is of the opinion that the mere implementation of an identification procedure is not sufficient to exclude the existence of collective expulsion. It considers moreover that several factors lead to the consideration in this case that the expulsion at issue was indeed of a collective nature. In particular, the expulsion orders did not contain any reference to the personal circumstances of the affected persons; the Government did not produce any document that could prove that individual interviews regarding the specific situation of each applicant would have occurred before the adoption of these orders; many people of the same origin experienced, at the time of the incriminating facts, the same fate as the applicants; the bilateral agreements with Tunisia (see paragraphs 28-30 above) have not been made public and provided for the repatriation of irregular Tunisian migrants through simplified procedures, based on the simple identification of the person concerned by Tunisian consular authorities.

157. Cela suffit à la Cour pour exclure l’existence de garanties suffisantes d’une prise en compte réelle et différenciée de la situation individuelle de chacune des personnes concernées (voir, mutatis mutandis, Čonka, précité, §§ 61-63).

157. This is sufficient for the Court to rule out the existence of sufficient guarantees of a genuine and differentiated consideration of the individual circumstances of the persons involved (see, mutatis mutandis, Čonka, cited above, §§ 61-63).

158. Au vu de ce qui précède, la Cour conclut que l’éloignement des requérants a revêtu un caractère collectif contraire à l’article 4 du Protocole no 4. Partant, il y a eu violation de cette disposition.

158. In view of the foregoing, the Court concludes that the expulsion of the applicants took on a collective character contrary to Article 4 of Protocol No. 4. Accordingly, there has been a violation of this provision.
[***]”

 

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European Commission’s Second Biannual Report on Schengen Area

The European Commission released its “Second biannual report on the functioning of the Schengen area” covering the period 1 May 2012-31 October 2012.  (COM(2012) 686 final, 23.11.2012)  The first reporton the Schengen area was released in May of this year.  (COM(2012) 230 final, 16.5.2012)

Here are a few excerpts from the 8 page document:

The Commission intends to present a legislative proposal in early 2013 to replace the Frontex sea border operations rule (Council Decision 2010/252/EU) that was annulled by the Court of Justice on 5 September 2012;

Subsequent to the issuance of a letter of formal notice to Greece in October 2009 in response to “allegations of serious difficulties faced by migrants in applying for asylum and ill-treatment of asylum-seekers, including the turning back of persons who may face serious harm or persecution”, the Commission is continuing to analyse the situation “in the light of constant developments, such as the progress made in the implementation of the Greek National Action Plan.”;

Subsequent to a Commission request to Italy in July 2009 “to provide information on the measures to avoid the risk of refoulement” and the February 2012 European Court of Human Rights decision in the Case of Hirsi v. Italy, “[a]gainst this background, the Commission is now analysing the implications of this ruling on border surveillance operations at sea and on the asylum acquis.

Click  here or here for Second Report.

Click here for First Report.

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Filed under Aegean Sea, European Court of Human Rights, European Union, Frontex, Greece, Italy, Judicial, Libya, Mediterranean, Reports

EU Court of Justice Annuls Frontex Sea Borders Rule – EU Parliamentary Approval Required (28.11.2012 update)

[UPDATE 28 November 2012: The European Commission intends to present a legislative proposal in early 2013 to replace the annulled Frontex sea border operations rule (Council Decision 2010/252/EU).  See EC’s “Second biannual report on the functioning of the Schengen area” covering the period 1 May 2012-31 October 2012.  (COM(2012) 686 final, 23.11.2012)]

The EU Court of Justice, Grand Chamber, issued a judgment on 5 September 2012 annulling Council Decision 2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by [Frontex] (OJ 2010 L 111, p. 20), i.e. the Frontex Sea Borders Rule.  ECJ Advocate General Paolo Mengozzi issued an Opinion on 17 April 2012 recommending that the Court annul the Rule.

The Court concluded that the provisions of the contested rule were not minor, non-essential provisions, but instead “constitute[d] a major [new] development in the [Schengen Borders Code] system” and which therefore required the consideration and approval of the European Parliament.

The Court stated that the Schengen Borders Code (“SBC”) as it currently stands “does not contain any rules concerning the measures which border guards are authorised to apply against persons or ships when they are apprehended….”  The contested rule “lays down the measures which border guards may take against ships [authorising] ships to be stopped, boarded, searched and seized…”  The contested rule “lays down rules on the disembarkation of the persons intercepted or rescued …stating that priority should be given to disembarkation in the third country from where the ship carrying the persons departed.”

The Court said the adoption of such rules conferring “enforcement powers on border guards …entails political choices falling within the responsibilities of the European Union legislature, in that it requires the conflicting interests at issue to be weighed up on the basis of a number of assessments. Depending on the political choices on the basis of which those rules are adopted, the powers of the border guards may vary significantly, and the exercise of those powers require authorisation, be an obligation or be prohibited, for example, in relation to applying enforcement measures, using force or conducting the persons apprehended to a specific location. In addition, where those powers concern the taking of measures against ships, their exercise is liable, depending on the scope of the powers, to interfere with the sovereign rights of third countries according to the flag flown by the ships concerned. Thus, the adoption of such rules constitutes a major development in the SBC system.”

The Court also noted that “the powers conferred in the contested [rule] mean that the fundamental rights of the persons concerned may be interfered with to such an extent that the involvement of the European Union legislature is required.”

For these reasons the Court decided that the “contested [rule] must be annulled in its entirety because it contains essential elements of the surveillance of the sea external borders of the Member States which go beyond the scope of the additional measures within the meaning of Article 12(5) of the SBC, and only the European Union legislature was entitled to adopt such a decision.”

The Court ordered “the effects of the contested [rule] [to]  be maintained until the entry into force, within a reasonable time, of new rules intended to replace the contested decision annulled by the present judgment.”

Click here or here for Judgment.

Extensive Excerpts from Judgment:

THE COURT (Grand Chamber), composed of V. Skouris, President, A. Tizzano, J.N. Cunha Rodrigues, K. Lenaerts, J.-C. Bonichot and A. Prechal, Presidents of Chambers, R. Silva de Lapuerta, K. Schiemann, E. Juhász, G. Arestis, T. von Danwitz (Rapporteur), M. Berger and E. Jarašiūnas, Judges,

Advocate General: P. Mengozzi,

having regard to the written procedure and further to the hearing on 25 January 2012, after hearing the Opinion of the Advocate General at the sitting on 17 April 2012, gives the following Judgment

1. By its action, the European Parliament seeks the annulment of Council Decision 2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by [FRONTEX] (OJ 2010 L 111, p. 20, ‘the contested decision’).

2. [***] The Parliament submits that the provisions of the contested decision ought to have been adopted by the ordinary legislative procedure and not by the comitology procedure based on Article 12(5) of the SBC [Schengen Borders Code].

I – Legal context

A – Decision 1999/468/EC

3.-7. [***]

B – The SBC

8.-16.[***]

C – Regulation (EC) No 2007/2004

17.-21.[***]

D – The contested decision

22.-29.[***]

II – Forms of order sought by the parties and the procedure before the Court

30. The Parliament claims that the Court should:

– annul the contested decision;

– order that the effects of the contested decision be maintained until it is replaced, …

31. The Council contends that the Court should:

– dismiss the Parliament’s action as inadmissible;

– in the alternative, dismiss the action as unfounded, …

32.[***] the Commission was granted leave to intervene in support of the form of order sought by the Council and, in its statement in intervention, it requests the Court to dismiss the Parliament’s action …..

III – The action

A – The admissibility of the action

33.-40.[***]

41. It follows from the above that the action for annulment must be declared to be admissible.

B – Substance

1. Arguments of the parties

42. [***]

(a) As regards the principles governing the implementing powers

43. The Parliament submits that the regulatory procedure with scrutiny can have as its subject-matter the modification or removal of non-essential elements of a basic instrument or the addition of new non-essential elements, but not the modification of the essential elements of such an instrument. [***]

44.-45.[***]

46. The Commission contends that [it has] the power to put flesh on the bones of the essential elements which the co‑legislators have chosen not to detail in extenso . It is authorised to supplement those elements and to regulate new activities within the scope of the essential subject-matter and of the essential rules.

(b) As regards the contested decision

47. Although the Parliament does not challenge the objectives of the contested decision, it takes the view that its content ought to have been adopted by means of a legislative act and not by an implementing measure. That decision goes beyond the scope of the implementing powers referred to in Article 12(5) of the SBC because it introduces new essential elements into that code and alters essential elements of the SBC as well as the content of the Frontex Regulation.

(i) Introduction of new essential elements into the SBC

48. As regards the introduction of new essential elements into the SBC, the Parliament submits that Parts I and II to the Annex of the contested decision lay down measures which cannot be considered to be within the scope of border surveillance as defined by the SBC or to be a non‑essential element of that code.

49. Thus, …, paragraph 2.4 of Part I to the Annex of the contested decision does not merely lay down detailed practical rules of border surveillance but grants border guards far‑reaching powers. The SBC is silent as to the measures which might be taken against persons or ships. However, the contested decision lays down far-reaching enforcement measures, yet does not ensure the right of persons intercepted on the high seas to claim asylum and associated rights, whereas, in accordance with Article 13 of the SBC, returning the persons concerned to the country from where they came can only arise in the context of a formal refusal of entry.

50. In addition, the rules relating to activities such as search and rescue and disembarkation in Part II to the Annex of the contested decision do not, in the Parliament’s view, fall within the concept of surveillance. Even though the title of Part II contains the word ‘guidelines’, Part II is binding and is intended to produce legal effects as against Member States which participate in an operation coordinated by the Agency, due to its wording, the fact that it is contained in a legally binding instrument, and the fact that it forms part of an operational plan provided for by the Frontex Regulation. The contested decision thus contains essential elements of the SBC and could not therefore be regulated in an implementing measure.

51. In addition, the Parliament submits that the contested decision exceeds the territorial scope of the SBC . In accordance with Article 2(11) of the SBC, surveillance is limited to the surveillance of borders between border crossing points and the surveillance of border crossing points outside the fixed opening hours, whereas, in accordance with paragraph 2.5 of Part I to its Annex, the contested decision applies not only to territorial waters, but also to contiguous zones and to the high seas.

52. [***]

53. [***] The Council contends that the argument alleging an extension of the territorial scope of the SBC is unfounded, since that code does not define the concept of a sea border, which must be understood as applying also to border surveillance carried out in the contiguous zones as well as on the high seas.

54. [***] Admittedly, helping ships in distress is not a surveillance measure in the narrow sense. However, if such a situation were to occur during a surveillance operation coordinated by the Agency, it would be indispensable to coordinate in advance how the search and rescue was conducted by various participating Member States. In those circumstances, the Council takes the view that the contested decision does not introduce new elements into the SBC.

55. The Commission contends that border surveillance is an essential element of the SBC, but that the essential rules governing that matter are found in Article 12 of the SBC which lays down provisions regarding the content as well as the object and purpose of the surveillance without serving to regulate that surveillance extensively and exhaustively. The co-legislators conferred on the Commission the power to supplement those essential elements. The power to regulate new activities allows the Commission to regulate the content of border surveillance and to define what that activity entails.

56. The Commission contends that the contested decision does not introduce new essential elements into the SBC. Surveillance must, in the light of its purpose, not only encompass the detection of attempts to gain illegal entry into the European Union but also extend to positive steps such as intercepting ships which are suspected of trying to gain entry to the Union without submitting to border checks. Article 12(4) of the SBC specifically mentions one of the purposes of surveillance as being to apprehend individuals. In order to assess whether ‘search and rescue’ falls within the concept of surveillance, it is important to take into consideration the factual circumstances in which attempted illegal entries arise. In many instances, the surveillance operation will prompt the search and rescue situation, and it is not possible to draw a sharp distinction between those operations. The issue of whether or not the guidelines are binding does not arise, given that the measures which they lay down fall within the concept of surveillance.

(ii) Modification of essential elements of the SBC

57. As regards the modification of the essential elements of the SBC, the Parliament contends, in particular, that the contested decision alters Article 13 of the Code. Since that article applies to any form of interception, persons who have entered illegally into the territorial waters and contiguous zones cannot be forced back or asked to leave without a decision pursuant to Article 13 of the SBC. However, paragraph 2.4 of Part I to the Annex of the contested decision confers on border guards the power to order the ship to modify its course outside of the territorial waters, without a decision within the meaning of Article 13 being taken or without the persons concerned having the possibility to challenge the refusal of entry.

58. In that connection, the Council and the Commission contend that Article 13 of the SBC does not apply to border surveillance activities so that the contested decision does not amend that article.

(iii) Amendment of the Frontex Regulation

59. As regards the amendment of the Frontex Regulation, the Parliament contends that Article 12(5) of the SBC does not grant the Commission the power to lay down rules which amend the powers and obligations set out by the Frontex Regulation for the operations co-ordinated by the Agency. The contested decision is not the appropriate legal instrument for creating obligations in relation to those operations or for modifying the provisions of the Frontex Regulation.

60. However, the contested decision is intended to apply only within the context of operations coordinated by the Agency and is obligatory not only for the Member States but also for the Agency, in light of the fact that its Annex forms part of the operational plan for each operation, whilst Article 8e of the Frontex Regulation determines the main elements of that plan. The mandatory inclusion in the operational plan of the rules and guidelines set out in the Annex of the contested decision significantly amends the list of necessary elements for the implementation of that plan, such as the roles of border guards, the participating units and the Rescue Coordination Centre, respectively.

61. In that connection, the Council contends that the contested decision does not amend the tasks of the Agency, even though the Annex of that decision forms part of the operational plan. [***]

62. According to the Commission, the contested decision does not affect the operation of the Frontex Regulation. The requirement in Article 1 of the contested decision that both Parts to the Annex are to be part of the operational plan imposes a requirement not upon the Agency, but rather the Member States as the persons to whom that decision is addressed and responsible for ensuring that the Annex forms part of that plan. In those circumstances, the contested decision does not amend the Frontex Regulation.

2. Findings of the Court

63.-68. [***]

69. As to whether the Council was empowered to adopt the contested decision as a measure implementing Article 12 of the SBC on border surveillance, on the basis of Article 12(5) of that code, it is first of all necessary to assess the meaning of that article.

70.-72.[***]

73. Although the SBC, which is the basic legislation in the matter, states in Article 12(4) thereof, that the aim of such [border] surveillance is to apprehend individuals crossing the border illegally, it does not contain any rules concerning the measures which border guards are authorised to apply against persons or ships when they are apprehended and subsequently – such as the application of enforcement measures, the use of force or conducting the persons apprehended to a specific location – or even measures against persons implicated in human trafficking.

74. That said, paragraph 2.4 of Part I to the Annex of the contested decision lays down the measures which border guards may take against ships detected and persons on board. In that connection, paragraph 2.4 (b), (d), (f) and (g) allows, inter alia, ships to be stopped, boarded, searched and seized, the persons on board to be searched and stopped, the ship or persons on board to be conducted to another Member State, and thus enforcement measures to be taken against persons and ships which could be subject to the sovereignty of the State whose flag they are flying.

75. In addition, paragraph 1.1 of Part II to the Annex of the contested decision lays down, inter alia, the obligation of the units participating in sea external border operations coordinated by the Agency to provide assistance to any vessel or person in distress at sea. Paragraph 2 of Part II lays down rules on the disembarkation of the persons intercepted or rescued, the second subparagraph of paragraph 2.1 stating that priority should be given to disembarkation in the third country from where the ship carrying the persons departed.

76. First, the adoption of rules on the conferral of enforcement powers on border guards, referred to in paragraphs 74 and 75 above, entails political choices falling within the responsibilities of the European Union legislature, in that it requires the conflicting interests at issue to be weighed up on the basis of a number of assessments. Depending on the political choices on the basis of which those rules are adopted, the powers of the border guards may vary significantly, and the exercise of those powers require authorisation, be an obligation or be prohibited, for example, in relation to applying enforcement measures, using force or conducting the persons apprehended to a specific location. In addition, where those powers concern the taking of measures against ships, their exercise is liable, depending on the scope of the powers, to interfere with the sovereign rights of third countries according to the flag flown by the ships concerned. Thus, the adoption of such rules constitutes a major development in the SBC system.

77. Second, it is important to point out that provisions on conferring powers of public authority on border guards – such as the powers conferred in the contested decision, which include stopping persons apprehended, seizing vessels and conducting persons apprehended to a specific location – mean that the fundamental rights of the persons concerned may be interfered with to such an extent that the involvement of the European Union legislature is required.

78. Thus, the adoption of provisions such as those laid down in paragraph 2.4 of Part I, and paragraphs 1.1 and 2.1 of Part II, of the Annex to the contested decision, requires political choices to be made as referred to in paragraphs 76 and 77 above. Accordingly, the adoption of such provisions goes beyond the scope of the additional measures within the meaning of Article 12(5) of the SBC and, in the context of the European Union’s institutional system, is a matter for the legislature.

79. In those circumstances, it must be found that, as the Advocate General observed in points 61 and 66 of his Opinion, Parts I and II to the Annex of the contested decision contain essential elements of external maritime border surveillance.

80. The mere fact that the title of Part II to the Annex of the contested decision contains the word ‘guidelines’ and that the second sentence of Article 1 of that decision states that the rules and guidelines in Part II are ‘non-binding’ cannot affect their classification as essential rules.

81.-83. [***]

84. In those circumstances, the contested decision must be annulled in its entirety because it contains essential elements of the surveillance of the sea external borders of the Member States which go beyond the scope of the additional measures within the meaning of Article 12(5) of the SBC, and only the European Union legislature was entitled to adopt such a decision.

85. Consequently, the Parliament’s arguments to the effect that the contested decision amends the essential elements of the SBC and also the Frontex Regulation do not require to be examined.

IV – The application for the effects of the contested decision to be maintained

86. The Parliament requests the Court, should it annul the contested decision, to maintain its effects, pursuant to the second paragraph of Article 264 TFEU, until that decision is replaced.

87. The Parliament submits that it is necessary to maintain the effects of the contested decision, in the light of the importance of the objectives of the proposed measures in the context of the European Union’s policy on border control operations.

88. [***]

89. The annulment of the contested decision without maintaining its effects on a provisional basis could compromise the smooth functioning of the current and future operations coordinated by the Agency and, consequently, the surveillance of the sea external borders of the Member States.

90. In those circumstances, there are important grounds of legal certainty which justify the Court exercising the power conferred on it by the second paragraph of Article 264 TFEU. In the present case, the effects of the contested decision must be maintained until the entry into force, within a reasonable time, of new rules intended to replace the contested decision annulled by the present judgment.

V – Costs

91. [***]

On those grounds, the Court (Grand Chamber) hereby:

1. Annuls Council Decision 2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union;

2. Maintains the effects of decision 2010/252 until the entry into force of new rules within a reasonable time;

3. Orders the Council of the European Union to pay the costs;

4. Orders the European Commission to bear its own costs.

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EU Court of Justice Advocate General Recommends Annulment of Frontex Sea Borders Rule

ECJ Advocate General Paolo Mengozzi issued an Opinion on 17 April in which he recommended that the European Court of Justice annul Council Decision 2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by Frontex (Sea Borders Rule).  The Advocate General’s recommendation, issued in the case of the European Parliament v Council of the EU, Case C-355/10, will be considered by the ECJ in the coming weeks.  The case was filed by the European Parliament on 12 July 2010.  A hearing was conducted on 25 January 2012.

The Advocate General’s recommendation is based primarily on the conclusion that the Council adopted the Frontex Sea Borders Rule by invoking a procedure which may only be used to amend “non-essential elements” of the Schengen Borders Code.  The Advocate General concluded that rather than amending “non-essential elements” of the SBC, the Council Decision introduces “new essential elements” into the SBC and amends the Frontex Regulation.  The recommendation calls for the effects of the Sea Borders Rule to be maintained until a new act can be adopted in accordance with ordinary legislative procedures.

[UPDATE:]  Paragraph 64 of the Recommendation explains why the Commission likely sought to implement the Sea Borders Rule through the committee mechanism rather than by pursuing ordinary legislative procedures:

“64.      Firstly, some provisions of the contested decision concern problems that, as well as being sensitive, are also particularly controversial, such as, for example, the applicability of the principle of non-refoulement in international waters (51) or the determination of the place to which rescued persons are to be escorted under the arrangements introduced by the SAR Convention. (52) The Member States have different opinions on these problems, as is evident from the proposal for a decision submitted by the Commission. (Ftnt 53)

Ftnt 53 – Moreover, it would seem that it is precisely a difference of opinion and the impasse created by it which led to the Commission’s choosing to act through the committee mechanism under Article 12(5) of the SBC rather than the ordinary legislative procedure, as is clear also from the letter from Commissioner Malmström annexed to the reply. These differences persist. The provisions of the contested decision concerning search and rescue, for example, have not been applied in Frontex operations launched after the entry into force of the contested decision on account of opposition from Malta.”

While this case presents a procedural question and does not involve a review of any of the substantive provisions of the Sea Borders Rule, the Advocate General’s statement in Paragraph 64 that “the applicability of the principle of non-refoulement in international waters” is a “controversial” position is wrong.  Perhaps the position is still controversial in some circles, but legally, with the important exception expressed by the US Supreme Court, it is clear that non-refoulement obligations apply to actions taken in international waters.

Click here for Opinion of Advocate General Mengozzi, Case C-355/10, 17 April 2012.

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Extensive Excerpts from the Advocate General’s Recommendation:

“1.        In the present proceedings, the European Parliament requests the Court to annul Council Decision 2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code (2) as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (‘the contested decision’). (3) If the action should be upheld, Parliament requests that the effects of the contested decision be maintained until it shall have been replaced.

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9.        The contested decision was adopted on the basis of Article 12(5) of the SBC, in accordance with the procedure provided for in Article 5a(4) of the comitology decision … [***]

10.      According to recitals (2) and (11) of the contested decision, its principal objective is the adoption of additional rules for the surveillance of the sea borders by border guards operating under the coordination of the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (‘the Agency’ or ‘Frontex’), established by Regulation 2007/2004 (‘the Frontex Regulation’). (9) It consists of two articles and an annex divided into two parts entitled ‘Rules for sea border operations coordinated by the Agency’ and ‘Guidelines for search and rescue situations and for disembarkation in the context of sea border operations coordinated by the Agency’. Under Article 1, ‘[t]he surveillance of the sea external borders in the context of the operational cooperation between Member States coordinated by the … Agency … shall be governed by the rules laid down in Part I to the Annex. Those rules and the non-binding guidelines laid down in Part II to the Annex shall form part of the operational plan drawn up for each operation coordinated by the Agency.’

11.      Point 1 of Part I to the Annex lays down certain general principles intended, inter alia, to guarantee that maritime surveillance operations are conducted in accordance with fundamental rights and the principle of non-refoulement. Point 2 contains detailed provisions on interception and lists the measures that may be taken in the course of the surveillance operation ‘against ships or other sea craft with regard to which there are reasonable grounds for suspecting that they carry persons intending to circumvent the checks at border crossing points’ (point 2.4). The conditions for taking such measures vary depending on whether the interception takes place in the territorial waters and contiguous zone of a Member State (point 2.5.1) or on the high seas (point 2.5.2). Point 1 of Part II to the Annex lays down provisions on units participating in the surveillance operation in search and rescue situations, including with regard to communicating and forwarding information to the rescue coordination centre responsible for the area in question and the coordination centre of the operation, and defines certain conditions for the existence of an emergency (point 1.4). Point 2 lays down guidelines on the modalities for the disembarkation of the persons intercepted or rescued.

II –  Procedure before the Court and forms of order sought

12.      By act lodged at the Registry of the Court of Justice on 12 July 2010, the Parliament brought the action which forms the subject-matter of the present proceedings. The Commission intervened in support of the Council. At the hearing of 25 January 2012, the agents of the three institutions presented oral argument.

13.      The Parliament claims that the Court should annul the contested decision, rule that the effects thereof be maintained until it is replaced, and order the Council to pay the costs.

14.      The Council contends that the Court should dismiss the application as inadmissible or, in the alternative, as unfounded and order the Parliament to pay the costs.

15.      The Commission requests the Court to dismiss the application and order the Parliament to pay the costs.

III –  Application

A –    Admissibility

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23.      For all the reasons set out above, the application must, in my view, be declared admissible.

B –    Substance

24.      The Parliament considers that the contested decision exceeds the implementing powers conferred by Article 12(5) of the SBC and therefore falls outside the ambit of its legal basis. In that context it raises three complaints. Firstly, the contested decision introduces new essential elements into the SBC. Secondly, it alters essential elements of the SBC. Thirdly, it interferes with the system created by the Frontex Regulation. These complaints are examined separately below.

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3.      First complaint, alleging that the contested decision introduces new essential elements into the SBC

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61.      Given both the sphere of which the legislation in question forms part and the objectives and general scheme of the SBC, in which surveillance is a fundamental component of border control policy, and notwithstanding the latitude left to the Commission by Article 12(5), I consider that strong measures such as those listed in point 2.4 of the annex to the contested decision, in particular those in subparagraphs (b), (d), (f) and g), and the provisions on disembarkation contained in Part II to that annex, govern essential elements of external maritime border surveillance. These measures entail options likely to affect individuals’ personal freedoms and fundamental rights (for example, searches, apprehension, seizure of the vessel, etc.), the opportunity those individuals have of relying on and obtaining in the Union the protection they may be entitled to enjoy under international law (this is true of the rules on disembarkation in the absence of precise indications on how the authorities are to take account of the individual situation of those on board the intercepted vessel), (47) and also the relations between the Union or the Member States participating in the surveillance operation and the third countries involved in that operation.

62.      In my view, a similar approach is necessary with regard to the provisions of the contested decision governing interception of vessels on the high seas. On the one hand, those provisions expressly authorise the adoption of the measures mentioned in the preceding paragraph in international waters, an option which, in the context described above, is essential in nature, irrespective of whether or not the Parliament’s argument is well founded, that the geographical scope of the SBC, with regard to maritime borders, is restricted to the external limit of the Member State’s territorial waters or the contiguous zone, and does not extend to the high seas. (48) On the other hand, those provisions, intended to ensure the uniform application of relevant international law in the context of maritime border surveillance operations, (49) even if they do not create obligations for the Member States participating in those operations or confer powers on them, other than those that may be deduced from that legislation, do bind them to a particular interpretation of those obligations and powers, thereby potentially bringing their international responsibility into play. (50)

63.      Two further observations militate in favour of the conclusions reached above.

64.      Firstly, some provisions of the contested decision concern problems that, as well as being sensitive, are also particularly controversial, such as, for example, the applicability of the principle of non-refoulement in international waters (51) or the determination of the place to which rescued persons are to be escorted under the arrangements introduced by the SAR Convention. (52) The Member States have different opinions on these problems, as is evident from the proposal for a decision submitted by the Commission. (53)

65.      Secondly, a comparison with the rules on border checks contained in the SBC shows that the definition of the practical arrangements for carrying out those checks, in so far as they concern aspects comparable, mutatis mutandis, to those governed by the contested decision, was reserved to the legislature, and this is so notwithstanding the fact that the Commission expressed a different opinion in the proposal for a regulation. (54)

66.      In the light of all the preceding provisions, I consider that the contested decision governs essential elements of the basic legislation within the meaning of the case-law set out in points 26 to 29 of this Opinion.

67.      Therefore, the Parliament’s first complaint must, in my opinion, be upheld.

4.      Second complaint, alleging that the contested decision alters essential elements of the SBC

68.      In its second complaint, the Parliament claims that, by providing that border guards may order the intercepted vessel to change its course towards a destination outside territorial waters and conduct it or the persons on board to a third country [point 2.4(e) and (f) of Part I to the annex], the contested decision alters an essential element of the SBC, that is to say, the principle set out in Article 13, under which ‘[e]ntry may only be refused by a substantiated decision stating the precise reasons for the refusal.’

69.      The Parliament’s argument is based on the premise that Article 13 is applicable to border surveillance too. This interpretation is opposed by both the Council and the Commission, which consider that the obligation to adopt a measure for which reasons are stated pursuant to that provision exists only when a person who has duly presented himself at a border crossing point and been subject to the checks provided for in the SBC has been refused entry into the territory of Union.

70.      The Parliament’s complaint must, in my view, be rejected, with no need to give a ruling, as to the substance, on the delicate question of the scope of Article 13 SBC on which the Court will, in all likelihood, be called to rule in the future.

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5.      Third complaint, alleging that the contested decision amends the Frontex Regulation

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82.      However, the fact remains that Article 1 of the contested decision substantially reduces the latitude of the requesting Member State and, consequently, that of the Agency, potentially interfering significantly with its functioning. An example of this is provided by the events connected with the Frontex intervention requested by Malta in March 2011 in the context of the Libyan crisis. The request by Malta, inter alia, not to integrate into the operational plan the guidelines contained in Part II to the annex to the contested decision met with opposition from various Member States and involved long negotiations between the Agency and the Maltese Government which prevented the operation from being launched. (62)

83.      In actual fact, the annex to the contested decision as a whole, including the non-binding guidelines – whose mandatory force, given the wording of Article 1, it is difficult to contest – (63) is perceived as forming part of the Community measures relating to management of external borders whose application the Agency is required to facilitate and render more effective under Article 1(2) of the Frontex Regulation. (64)

84.      Furthermore, the non-binding guidelines contained in Part II to the annex to the contested decision relating to search and rescue situations govern aspects of the operation that do not fall within Frontex’s duties. As the Commission itself points out in the proposal on the basis of which the contested decision was adopted, Frontex is not an SAR agency (65) and ‘the fact that most of the maritime operations coordinated by it turn into search and rescue operations removes them from the scope of Frontex’. (66) The same is true with regard to the rules on disembarkation. None the less, the contested decision provides for those guidelines to be incorporated into the operational plan.

85.      On the basis of the foregoing considerations, I consider that, by regulating aspects relating to operational cooperation between Member States in the field of management of the Union’s external borders that fall within the scope of the Frontex Regulation and, in any event, by laying down rules that interfere with the functioning of the Agency established by that regulation, the contested decision exceeds the implementing powers conferred by Article 12(5) of the SBC.

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C –    Conclusions reached on the application

89.      In the light of the foregoing, the action must, in my view, be allowed and the contested decision annulled.

IV –  Parliament’s request that the effects of the contested decision be maintained

90.      The Parliament requests the Court, should it order the annulment of the contested decision, to maintain the effects thereof until a new act be adopted, pursuant to the power conferred on it by the second paragraph of Article 264 TFEU. That provision, under which ‘the Court shall, if it considers this necessary, state which of the effects of the act which it has declared void shall be considered as definitive’ has also been used to maintain temporarily all the effects of such an act pending its replacement. (68)

91.      In the present case, annulment pure and simple of the contested decision would deprive the Union of an important legal instrument for coordinating joint action by the Member States in the field of managing surveillance of the Union’s maritime borders, and for making that surveillance more in keeping with human rights and the rules for the protection of refugees.

92.      For the reasons set out, I consider that the Parliament’s application should be granted and the effects of the contested decision maintained until an act adopted in accordance with the ordinary legislative procedure shall have been adopted.

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Click here for Opinion of Advocate General Mengozzi, Case C-355/10, 17 April 2012.

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Hirsi v. Italy: Prohibition of Collective Expulsion Extends to Extra-Territorial Actions

Article 4 of Protocol No. 4 of the ECHR reads in its entirety as follows:  “Collective expulsion of aliens is prohibited.”

The provision was first defined by the European Commission of Human Rights in 1975 in Henning Becker v. Denmark (no. 7011/75, decision of 3 October 1975).  The Commission defined the “‘collective expulsion of aliens’ as being ‘any measure of the competent authority compelling aliens as a group to leave the country, except where such a measure is taken after and on the basis of a reasonable and objective examination of the particular cases of each individual alien of the group’.” [para. 166]

The Court has only once previously found a violation of the collective expulsion prohibition and that was in Čonka v. Belgium (no. 51564/99, ECHR 2002-I). [para. 183]

The majority of collective expulsion cases previously considered by the Commission and the Court have “involved persons who were on the territory at issue.”  [para. 167]  One extra-territorial exception involved the case of Xhavara and Others v. Italy and Albania ((dec), no. 39473/98, 11 January 2001) involving “Albanian nationals who had attempted to enter Italy illegally on board an Albanian vessel and who had been intercepted by an Italian warship approximately 35 nautical miles off the Italian coast. The Italian ship had attempted to prevent the parties concerned from disembarking on national territory, leading to the death of fifty-eight people….”  The Court however “rejected the complaint on the ground of incompatibility ratione personae, as [the applicants challenged an Italian law which] had not been applied to their case, and [the Court therefore] did not rule on the [extra-territorial] applicability of Article 4 of Protocol No. 4…”  [para. 168]

In Hirsi the Court “for the first time” considered the question of whether the prohibition of collective expulsion “applies to a case involving the removal of aliens to a third State carried out outside national territory.”  [para. 169]

Italy argued that the prohibition “came into play only in the event of the expulsion of persons [already] on the territory of a State or who had crossed the national border illegally” and therefore did not apply to the Hirsi applicants who had not entered on to Italian territory. According to Italy, “the measure at issue was a refusal to authorise entry into national territory rather than ‘expulsion’.” [para. 160]

The Court rejected Italy’s interpretation:

“173.  The Court does not share the Government’s opinion on this point. It notes firstly that while the cases thus far examined have concerned individuals who were already, in various forms, on the territory of the country concerned, the wording of Article 4 of Protocol No. 4 does not in itself pose an obstacle to its extra-territorial application. It must be noted that Article 4 of Protocol No. 4 contains no reference to the notion of ‘territory’, whereas the wording of Article 3 of the same Protocol, on the contrary, specifically refers to the territorial scope of the prohibition on the expulsion of nationals. Likewise, Article 1 of Protocol No. 7 explicitly refers to the notion of territory regarding procedural safeguards relating to the expulsion of aliens lawfully resident in the territory of a State. In the Court’s view, that wording cannot be ignored.

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175.  It remains to be seen, however, whether [an extra-territorial] application [of the prohibition] is justified. To reply to that question, account must be taken of the purpose and meaning of the provision at issue, which must themselves be analysed in the light of the principle, firmly rooted in the Court’s case-law, that the Convention is a living instrument which must be interpreted in the light of present-day conditions. [***] Furthermore, it is essential that the Convention is interpreted and applied in a manner which renders the guarantees practical and effective and not theoretical and illusory (see Marckx v. Belgium, 13 June 1979, § 41, Series A no. 31; [***]).

176.  A long time has passed since Protocol No. 4 was drafted. Since that time, migratory flows in Europe have continued to intensify, with increasing use being made of the sea, although the interception of migrants on the high seas and their removal to countries of transit or origin are now a means of migratory control, in so far as they constitute tools for States to combat irregular immigration.

The economic crisis and recent social and political changes have had a particular impact on certain regions of Africa and the Middle East, throwing up new challenges for European States in terms of immigration control.

177.  The Court has already found that, according to the established case-law of the Commission and of the Court, the purpose of Article 4 of Protocol No. 4 is to prevent States being able to remove certain aliens without examining their personal circumstances and, consequently, without enabling them to put forward their arguments against the measure taken by the relevant authority. If, therefore, Article 4 of Protocol No. 4 were to apply only to collective expulsions from the national territory of the States Parties to the Convention, a significant component of contemporary migratory patterns would not fall within the ambit of that provision, notwithstanding the fact that the conduct it is intended to prohibit can occur outside national territory and in particular, as in the instant case, on the high seas. Article 4 would thus be ineffective in practice with regard to such situations, which, however, are on the increase. The consequence of that would be that migrants having taken to the sea, often risking their lives, and not having managed to reach the borders of a State, would not be entitled to an examination of their personal circumstances before being expelled, unlike those travelling by land.

178.  It is therefore clear that, while the notion of ‘jurisdiction’ is principally territorial and is presumed to be exercised on the national territory of States (see paragraph 71 above), the notion of expulsion is also principally territorial, in the sense that expulsions are most often conducted from national territory. Where, however, as in the instant case, the Court has found that a Contracting State has, exceptionally, exercised its jurisdiction outside its national territory, it does not see any obstacle to accepting that the exercise of extraterritorial jurisdiction by that State took the form of collective expulsion. To conclude otherwise, and to afford that last notion a strictly territorial scope, would result in a discrepancy between the scope of application of the Convention as such and that of Article 4 of Protocol No. 4, which would go against the principle that the Convention must be interpreted as a whole. Furthermore, as regards the exercise by a State of its jurisdiction on the high seas, the Court has already stated that the special nature of the maritime environment cannot justify an area outside the law where individuals are covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention which the States have undertaken to secure to everyone within their jurisdiction (see Medvedyev and Others, cited above, § 81).

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180.  Having regard to the foregoing, the Court considers that the removal of aliens carried out in the context of interceptions on the high seas by the authorities of a State in the exercise of their sovereign authority, the effect of which is to prevent migrants from reaching the borders of the State or even to push them back to another State, constitutes an exercise of jurisdiction within the meaning of Article 1 of the Convention which engages the responsibility of the State in question under Article 4 of Protocol No. 4.

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185.  In the instant case, the Court can only find that the transfer of the applicants to Libya was carried out without any form of examination of each applicant’s individual situation. It has not been disputed that the applicants were not subjected to any identification procedure by the Italian authorities, which restricted themselves to embarking all the intercepted migrants onto military ships and disembarking them on Libyan soil. Moreover, the Court notes that the personnel aboard the military ships were not trained to conduct individual interviews and were not assisted by interpreters or legal advisers.

That is sufficient for the Court to rule out the existence of sufficient guarantees ensuring that the individual circumstances of each of those concerned were actually the subject of a detailed examination.

186.  Having regard to the above, the Court concludes that the removal of the applicants was of a collective nature, in breach of Article 4 of Protocol No. 4. Accordingly, there has been a violation of that Article.”

Click here (EN) and here (FR) for the Grand Chamber’s Judgment.

Click here (EJIL: Talk!), here (ECHR Blog), here (UK Human Rights Blog), and here (Open Society Blog)  for more analysis of the Judgment.

Click here for my previous post “Hirsi v. Italy: The Issue of Jurisdiction Under ECHR Article 1.”

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Hirsi v. Italy: The Issue of Jurisdiction Under ECHR Article 1

The Court found that ECHR Article 1 jurisdiction existed because “the applicants were under the continuous and exclusive de jure and de facto control of the Italian authorities” from the point in time when the applicants’ boats were intercepted and the applicants were transferred to the Italian ships up until the point when the applicants were turned over to Libyan authorities in Tripoli. [para. 81]

The Court noted that the jurisdiction of a State is essentially territorial and therefore “the Court has accepted only in exceptional cases that acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of Article 1 of the Convention (see Drozd and Janousek v. France and Spain, 26 June 1992, § 91, Series A no. 240; Bankoviç, decision cited above, § 67; and Ilaşcu and Others, cited above, § 314).” [para. 72].

“73.  [***] In each case, the question whether exceptional circumstances exist which require and justify a finding by the Court that the State was exercising jurisdiction extra-territorially must be determined with reference to the particular facts, for example full and exclusive control over a prison or a ship (see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 132 and 136, 7 July 201; Medvedyev and Others, cited above, § 67).

74.  Whenever the State through its agents operating outside its territory exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section 1 of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Court has now accepted that Convention rights can be ‘divided and tailored’ (see Al-Skeini, cited above, § 136 and 137; compare Banković, cited above, § 75).”

The Court rejected Italy’s jurisdictional arguments.  While Italy acknowledged that the events in question took place on board its military ships, Italy asserted that due to the nature of the operation, the military ships and their personnel never exercised “absolute and exclusive control” over the applicants. [para. 64] Italy argued that its actions constituted a “rescue on the high seas of persons in distress” and therefore “could in no circumstances be described as a maritime police operation.” [para. 65] Italy argued that the UN Convention on the Law of the Sea obligated it to rescue persons in distress and that carrying out its obligations under the Convention on the Law of the Sea  “did not in itself create a link between the State and the persons concerned establishing the State’s jurisdiction.” [para. 65]

The Court concluded that Italy “[could not] circumvent its ‘jurisdiction’ under the [ECHR] by describing the events at issue as rescue operations on the high seas.”   The Court took note of the events in the case of Medvedyev and Others where French military personnel intercepted a vessel flying the flag of a third State and took control of crew members who remained on board the intercepted vessel. [para. 80]

“81.  The Court observes that in the [Hirsi] case the events took place entirely on board ships of the Italian armed forces, the crews of which were composed exclusively of Italian military personnel. In the Court’s opinion, in the period between boarding the ships of the Italian armed forces and being handed over to the Libyan authorities, the applicants were under the continuous and exclusive de jure and de facto control of the Italian authorities. Speculation as to the nature and purpose of the intervention of the Italian ships on the high seas would not lead the Court to any other conclusion.

82.  Accordingly, the events giving rise to the alleged violations fall within Italy’s ‘jurisdiction’ within the meaning of Article 1 of the Convention.”

In some respects, the Article 1 jurisdictional issue was easier to address because the applicants were removed from their vessels and taken on board the Italian military vessels.  The Court noted that under “relevant provisions of the law of the sea, a vessel sailing on the high seas is subject to the exclusive jurisdiction of the State of the flag it is flying” [para. 77] and further that this principle is contained within the Italian Navigation Code. [para. 78]  The Court accordingly found that de jure control had been exercised over the applicants after they were transferred from their boats to the Italian ships.

It seems clear that Italy intends in the future to resume some sort of bi-lateral immigration control measures with Libya.  It remains to be seen whether Italy will try to implement some modified form of the push-back practice that has now been condemned by the Court.  One of the provisions in one of the bi-lateral agreements between Italy and Libya mentioned in the Hirsi judgment provides for the deployment of

“maritime patrols with joint crews, made up of equal numbers of Italian and Libyan personnel having equivalent experience and skills. The patrols shall be conducted in Libyan and international waters under the supervision of Libyan personnel and with participation by Italian crew members, and in Italian and international waters under the supervision of Italian personnel and with participation by the Libyan crew members.”  Additional Protocol of 4 February 2009 [para. 19]

The question arises whether Italy could evade jurisdiction and circumvent its Convention obligations by lessening its control over a new push-back scheme.  How would the Court have viewed the push-back events had they occurred, as the operational protocol above contemplates, “in … international waters under the supervision of Libyan personnel and with participation by Italian crew members”?

Click here (EN) and here (FR) for the Grand Chamber’s judgment.

Click here (EJIL: Talk!), here (ECHR Blog), here (UK Human Rights Blog) and here (Open Society Blog) for more analysis of the Judgment.

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ECtHR Grand Chamber: Italy’s Maritime Push-Back Practice Amounts to Collective Expulsion and Exposes Migrants to Risks of Torture and Ill-Treatment

The Grand Chamber of the European Court of Human Rights issued a unanimous judgment earlier today in the case of Hirsi Jamaa and Others v. Italy (application no. 27765/09) holding that “There had been two violations of [ECHR] Article 3 (prohibition of inhuman or degrading treatment) … because the applicants had been exposed to the risk of ill-treatment in Libya and of repatriation to Somalia or Eritrea; There had been a violation of Article 4 of Protocol No. 4 (prohibition of collective expulsions); There had been a violation of Article 13 (right to an effective remedy) taken in conjunction with Article 3 and with Article 4 of Protocol No.4.”

More to follow once I have had a chance to closely read the 80+ page judgment.

Click here (EN) and here (FR) for the Grand Chamber’s judgment.

Click here (EN) and here (FR) for Press Statements from the Court Registry.

Click here, here, and here for UNHCR press statements.

Click here for Amnesty International statement.

Excerpt from the Registry Press Release:

“Decision of the Court

The question of jurisdiction under Article 1

Only in exceptional cases did the Court accept that acts of the member States performed, or producing effects, outside their territories could constitute an exercise of jurisdiction by them. Whenever the State, through its agents operating outside its territory, exercised control and authority over an individual, and thus its jurisdiction, the State was under an obligation to secure the rights under the Convention to that individual.

Italy did not dispute that the ships onto which the applicants had been embarked had been fully within Italian jurisdiction. The Court reiterated the principle of international law, enshrined in the Italian Navigation Code, that a vessel sailing on the high seas was subject to the exclusive jurisdiction of the State of the flag it was flying. The Court could not accept the Government’s description of the operation as a “rescue operation on the high seas” or that Italy had exercised allegedly minimal control over the applicants. The events had taken place entirely on board ships of the Italian armed forces, the crews of which had been composed exclusively of Italian military personnel. In the period between boarding the ships and being handed over to the Libyan authorities, the applicants had been under the continuous and exclusive de jure and de facto control of the Italian authorities. Accordingly, the events giving rise to the alleged violations had fallen within Italy’s jurisdiction within the meaning of Article 1.

Article 3 – Risk of suffering ill-treatment in Libya

The Court was aware of the pressure on States resulting from the increasing influx of migrants, which was a particularly complex phenomenon when occurring by sea, but observed that this could not absolve a State of its obligation not to remove any person who would run the risk of being subjected to treatment prohibited under Article 3 in the receiving country. Noting that the situation in Libya had deteriorated after April 2010, the Court decided to confine its examination of the case to the situation prevailing in Libya at the material time. It noted that the disturbing conclusions of numerous organisations (2)  regarding the treatment of clandestine immigrants were corroborated by the report of the Committee for the Prevention of Torture (CPT) of 2010 (3).

Irregular migrants and asylum seekers, between whom no distinction was made, had been systematically arrested and detained in conditions described as inhuman by observers (4), who reported cases of torture among others. Clandestine migrants had been at risk of being returned to their countries of origin at any time and, if they managed to regain their freedom, had been subjected to particularly precarious living conditions and exposed to racist acts. The Italian Government had maintained that Libya was a safe destination for migrants and that Libya complied with its international commitments as regards asylum and the protection of refugees. The Court observed that the existence of domestic laws and the ratification of international treaties guaranteeing respect for fundamental rights were not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where reliable sources had reported practices contrary to the principles of the Convention. Furthermore, Italy could not evade its responsibility under the Convention by referring to its subsequent obligations arising out of bilateral agreements with Libya. The Court noted, further, that the Office of the UNHCR in Tripoli had never been recognised by the Libyan Government. That situation had been well-known and easy to verify at the relevant time. The Court therefore considered that when the applicants had been removed, the Italian authorities had known or should have known that they would be exposed to treatment in breach of the Convention. Furthermore, the fact the applicants had not expressly applied for asylum had not exempted Italy from its responsibility. The Court reiterated the obligations on States arising out of international refugee law, including the “non-refoulement principle” also enshrined in the Charter of Fundamental Rights of the European Union. The Court attached particular weight in this regard to a letter of 15 May 2009 from Mr Jacques Barrot, Vice-President of the European Commission, in which he reiterated the importance of that principle (5).

The Court, considering that the fact that a large number of irregular immigrants in Libya had found themselves in the same situation as the applicants did not make the risk concerned any less individual, concluded that by transferring the applicants to Libya the Italian authorities had, in full knowledge of the facts, exposed them to treatment proscribed by the Convention. The Court thus concluded that there had been a violation of Article 3.

Risk of suffering ill-treatment in the applicants’ country of origin

The indirect removal of an alien left the State’s responsibility intact, and that State was required to ensure that the intermediary country offered sufficient guarantees against arbitrary refoulement particularly where that State was not a party to the Convention. The Court would determine whether there had been such guarantees in this case. All the information in the Court’s possession showed prima facie that there was widespread insecurity in Somalia – see the Court’s conclusions in the case of Sufi and Elmi v. the United Kingdom (6) – and in Eritrea – individuals faced being tortured and detained in inhuman conditions merely for having left the country irregularly. The applicants could therefore arguably claim that their repatriation would breach Article 3 of the Convention. The Court observed that Libya had not ratified the Geneva Convention and noted the absence of any form of asylum and protection procedure for refugees in the country. The Court could not therefore subscribe to the Government’s argument that the UNHCR’s activities in Tripoli represented a guarantee against arbitrary repatriation. Moreover, Human Rights Watch and the UNHCR had denounced several forced returns of asylum seekers and refugees to highrisk countries. Thus, the fact that some of the applicants had obtained refugee status in Libya, far from being reassuring, might actually have increased their vulnerability.

The Court concluded that when the applicants were transferred to Libya, the Italian authorities had known or should have known that there were insufficient guarantees protecting them from the risk of being arbitrarily returned to their countries of origin. That transfer accordingly violated Article 3.

Article 4 of Protocol No.4 – Admissibility of the complaint

The Court was required, for the first time, to examine whether Article 4 of Protocol No. 4 applied to a case involving the removal of aliens to a third State carried out outside national territory. It had to ascertain whether the transfer of the applicants to Libya constituted a collective expulsion within the meaning of Article 4 of Protocol No. 4. The Court observed that neither the text nor the travaux préparatoires of the Convention precluded the extraterritorial application of that provision. Furthermore, were Article 4 of Protocol No. 4 to apply only to collective expulsions from the national territory of the member States, a significant component of contemporary migratory patterns would not fall within the ambit of that provision and migrants having taken to the sea, often risking their lives, and not having managed to reach the borders of a State, would not be entitled to an examination of their personal circumstances before being expelled, unlike those travelling by land. The notion of expulsion, like the concept of “jurisdiction”, was clearly principally territorial. Where, however, the Court found that a State had, exceptionally, exercised its jurisdiction outside its national territory, it could accept that the exercise of extraterritorial jurisdiction by that State had taken the form of collective expulsion. The Court also reiterated that the special nature of the maritime environment did not make it an area outside the law. It concluded that the complaint was admissible.

Merits of the complaint

The Court observed that, to date, the Čonka v. Belgium (7) case was the only one in which it had found a violation of Article 4 of Protocol No. 4. It reiterated that the fact that a number of aliens were subject to similar decisions did not in itself lead to the conclusion that there was a collective expulsion if the case of each person concerned had been duly examined. In the present case the transfer of the applicants to Libya had been carried out without any examination of each individual situation. No identification procedure had been carried out by the Italian authorities, which had merely embarked the applicants and then disembarked them in Libya. The Court concluded that the removal of the applicants had been of a collective nature, in breach of Article 4 of Protocol No. 4.

Article 13 taken in conjunction with Article 3 and with Article 4 of Protocol No.4

The Italian Government acknowledged it had not been possible to assess the applicants’ personal circumstances on board the military ships. The applicants alleged that they had been given no information by the Italian military personnel, who had led them to believe that they were being taken to Italy and had not informed them as to the procedure to be followed to avoid being returned to Libya. That version of events, though disputed by the Government, was corroborated by a large number of witness statements gathered by the UNHCR, the CPT and Human Rights Watch. The applicants had thus been unable to lodge their complaints under Article 3 of the Convention and Article 4 of Protocol No. 4 with a competent authority and to obtain a thorough and rigorous assessment of their requests before the removal measure was enforced.

Even if a remedy under the criminal law against the military personnel on board the ship were accessible in practice, this did not satisfy the criterion of suspensive effect. The Court reiterated the requirement flowing from Article 13 that execution of a measure be stayed where the measure was contrary to the Convention and had potentially irreversible effects. Having regard to the irreversible consequences if the risk of torture or ill-treatment materialised, the suspensive effect of an appeal should apply where an alien was returned to a State where there were serious grounds for believing that he or she faced a risk of that nature. The Court concluded that there had been a violation of Article 13 taken in conjunction with Article 3 and Article 4 of Protocol No. 4.

Article 41

Under Article 41 (just satisfaction), the Court held that Italy was to pay each applicant 15,000 euros (EUR) in respect of non-pecuniary damage and EUR 1,575.74 to the applicants jointly in respect of costs and expenses.

2 International bodies and non-governmental organisations; see paragraphs 37 – 41 of the judgment.

3 Report of 28 April 2010 of the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) of the Council of Europe after a visit to Italy.

4 The UNHCR, Human Rights Watch and Amnesty International.

5 Paragraph 34 of the judgment.

6 Judgment of 28.06.2011.

7 Judgment of 05.02.2002.”

Click here (EN) and here (FR) for the Grand Chamber’s judgment.

Click here (EN) and here (FR) for Press Statements from the Court Registry.

Click here, here, and here for UNHCR press statements.

Click here for Amnesty International statement

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ECtHR Grand Chamber to Deliver Judgement in Hirsi v Italy on 23 February

The decision in Hirsi and others v Italy, Requête no 27765/09, is scheduled to be released by the Grand Camber of the European Court of Human Rights next Thursday, 23 February.  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.   On 17 November 2009 the Second Section of the Court communicated the case and then subsequently relinquished jurisdiction in favour of the Grand Chamber.  The argument before the Grand Chamber occurred on 22 June 2011.

Today’s statement from the CoE web site:

“Human rights judges will soon deliver their judgement in a case which involved Italy intercepting Somalian and Eritrean migrants at sea and returning them to Libya.  The European Court of Human Rights’ Grand Chamber final judgment in the case of Hirsi Jamaa and Others v. Italy (application no. 27765/09), is expected at a public hearing scheduled for Thursday 23 February.

Principal facts

The applicants are 11 Somalian and 13 Eritrean nationals. They were part of a group of about 200 people who left Libya in 2009 on board three boats bound for Italy. On 6 May 2009, when the boats were 35 miles south of Lampedusa (Agrigento), within the maritime search and rescue region under the responsibility of Malta, they were intercepted by Italian Customs and Coastguard vessels. The passengers were transferred to the Italian military vessels and taken to Tripoli.

The applicants say that during the journey the Italian authorities did not tell them where they were being taken, or check their identity. Once in Tripoli they were handed over to the Libyan authorities.

At a press conference on 7 May 2009 the Italian Minister of the Interior explained that the interception of the vessels on the high seas and the return of the migrants to Libya was in accordance with the bilateral agreements with Libya that entered into force on 4 February 2009, marking a turning point in the fight against illegal immigration.

Complaint

The applicants consider that their case falls within the jurisdiction of Italy. Relying on Article 3 of the European Convention on Human Rights (prohibition of inhuman or degrading treatment), they argue that the decision of the Italian authorities to send them back to Libya exposed them to the risk of ill-treatment there, as well as to the serious threat of being sent back to their countries of origin (Somalia and Eritrea), where they might also face ill-treatment.

They also complain that they were subjected to collective expulsion prohibited by Article 4 of Protocol No. 4 (prohibition of collective expulsion of aliens) of the Convention. Lastly, relying on Article 13 (right to an effective remedy), they complain that they had no effective remedy against the alleged violations of Article 3 and Article 4 of Protocol No. 4.

The application was lodged with the European Court of Human Rights on 26 May 2009.

On 15 February 2011 the Chamber to which the case had been allocated relinquished jurisdiction in favour of the Grand Chamber. A hearing took place in public in the Human Rights Building, Strasbourg on 22 June 2011.

The following have been authorised to intervene as a third party (under Article 36 § 2 of the Convention):

– the Office of the United Nations High Commissioner for Refugees,

– the Office of the United Nations High Commissioner for Human Rights,

– the non-governmental organisations Aire Center, Amnesty International, and International Federation for Human Rights (FIDH),

– the non-governmental organisation Human Rights Watch, and

– the Columbia Law School Human Rights Clinic.”

Click here for CoE Statement.

Click here for Press Statement from ECtHR.

Click here for previous post on the argument before the Grand Chamber.

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Maltese Constitutional Court Awards Compensation to 2 Somalis Forcibly Repatriated to Libya in 2004

From the Times of Malta:  “Two Somali men have been awarded compensation of €10,000 each after the Constitutional Court found that they were forcibly repatriated to Libya from Malta and had not been given the opportunity for asylum.  …  [After fleeing Libya by boat t]heir boat was intercepted by a Maltese patrol boat and they were brought to Malta.  Upon their arrival they were taken to the Police Headquarters. Neither of them was given the opportunity to apply for asylum in Malta nor were they assisted by an interpreter. Twenty days later the two men, together with four other illegal immigrants were taken, handcuffed, to the airport and were forcibly sent back to Libya.  Both men asked to speak to the UNHCR representative in Malta but their request was refused.  Upon their arrival in Libya they were arrested, beaten and tortured while they were kept in prison for a week. They were transferred to another prison and, three months later, they were taken to court where they were tried without an interpreter.  The men were sentenced to one year’s imprisonment. During their time in prison they were again beaten and tortured. …  The case was instituted by Abdul Hakim Hassan Abdulle and Kasin Ibrahim Nur after they managed to endure torture in a Libyan jail and abandonment in the Sahara Desert before returning to Malta….  In their constitutional application the men claimed that their right to freedom from inhuman and degrading treatment had been violated by the fact that they had been forcibly repatriated to a country which was known to practise torture. They further claimed that their fundamental human right to an effective remedy had been violated as Malta had not allowed them to apply for asylum. Mr Justice Pace pointed out that in terms of law, an immigrant had to be informed of his right to seek asylum in Malta in a language he understood. This had not been done in this case….”

Thanks to Dr Neil Fazon (Aditus.org.mt) for pointing this out and for providing a copy of the Court’s decision.

Click here for article.

Click on this link Abdul Hakim et vs MJHA et for decision (Maltese).

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Criminal Charges Brought in Italy Against 5 Men Accused of Murdering Passengers On Disabled Migrant Boat

Italian authorities in Agrigento have brought criminal charges, including charges of unlawful killing, against 5 men from Ghana and Nigeria who are accused of throwing fellow migrant passengers into the sea from a disabled migrant boat this past August. The victims are alleged to been selected based upon their ethnicity or nationality. The boat in question was carrying over 300 migrants from Libya towards Lampedusa in August when it became disabled.  Italian patrol boats rescued the survivors on 4 August.  Italian authorities at the time accused NATO of failing to act to assist with the rescue of the boat.

Click here (EN), here (IT) and here (IT) for articles.

Click here and here for my earlier posts on the August incident.

Image of migrant boat from monitor inside Italian rescue helicopter

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Italian Appeals Court Acquits 2 Tunisian Fishing Boat Captains Who Rescued Migrants in 2007

The Court of Appeal of Palermo on 22 September formally acquitted two Tunisian fishing boat captains, Abdelbasset Zenzeri and Abdelkarim Bayoudh, who rescued 44 migrants on 8 August 2007 and brought the rescued migrants to Lampedusa despite being ordered by Italian authorities not to enter the port at Lampedusa.  Italian coast guard and Guardia boats attempted to block the entry of the fishing boats into the harbour.

The two captains and their crew members were arrested and criminally charged with facilitating illegal immigration and resisting public officers after they landed at Lampedusa to disembark the rescued migrants.  Several of the rescued migrants were seriously ill.  The migrant boat had departed from Libya, had been at sea for three days, and was carrying asylum seekers from Eritrea, Ethiopia, and Sudan.  In November 2009 the captains and their five crew members were acquitted by the Court of Agrigento of the charges relating to facilitating illegal immigration, but the two captains were convicted of charges of resisting a public officer and committing violence against a warship (“resistenza a pubblico ufficiale” e “violenza contro nave da guerra”) in connection with their refusal to turn their boats around and not enter the harbour.  The captains were required to forfeit their fishing vessels and were sentenced to prison.  Last week’s ruling by the Court of Appeal reversed the criminal convictions entered by the lower court and brings the case to an end after 4 years.  The incident inspired the movie Terraferma.  (In the movie version it is an Italian fisherman who rescues the migrants.)

Click here (IT) and here (DE) for articles.

Click here for ASGI’s statement about the ruling.  (IT)

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Office of Legal Counsel (US Dept of Justice) 1994 Legal Opinion, “Whether the Interdiction of Undocumented Aliens Within United States Territorial Waters Constitutes an Arrest Under Section 287(a)(2) of the Immigration and Nationality Act”

This post will be of little interest to most people, but I wanted to give an online home to this US Department of Justice Office of Legal Counsel (“OLC”) legal opinion issued on April 22, 1994 [22 April 1994 OLC Opinion] and which we obtained last month pursuant to a Freedom of Information Act request submitted to OLC in September 2009.

The legal opinion, “Whether the Interdiction of Undocumented Aliens Within United States Territorial Waters Constitutes an ‘Arrest’ Under Section 287(a)(2) of the Immigration and Nationality Act,” concludes that “[t]he interdiction within the territorial waters of the United States of illegal aliens entering or attempting to enter the United States is not an ‘arrest’ of such aliens within the meaning of INA § 287(a)(2).”

By concluding that an interdiction within US territorial waters does not constitute an arrest under US immigration laws, the 1994 legal opinion re-affirmed a 1993 OLC legal opinion that aliens interdicted within the 12 mile territorial sea zone are not entitled to hearings before an immigration judge which in turn means that such aliens are not able to seek protections under US immigration law, including protection against refoulement. The 1993 memo stated, inter alia, that “the State Department has advised us of its view that the United States’s international law obligations under the Protocol do not require it to provide … hearings to aliens who have merely arrived in its territorial waters.”

This rationale was extended by a 1996 OLC legal opinion to interdictions that occur within the “internal waters” of the US.  “Internal waters” under US law include such bodies of water as “the straits between the Florida Keys [and] portions of the Chesapeake Bay.”

Since 1992, the US has maintained the position that its obligation to apply Article 33 non-refoulement protection does not extend to persons encountered outside US territory in international waters.  While asserting it is not obligated to extend Article 33 protection to persons encountered in international waters, within the 12 mile territorial sea, or within internal waters, the US does extend Article 33 protection to interdicted migrants on a discretionary case-by-case basis.

Click on this link, 1994 OLC Opinion, for newly released 1994 OLC legal opinion: “Whether the Interdiction of Undocumented Aliens Within United States Territorial Waters Constitutes an ‘Arrest’ Under Section 287(a)(2) of the Immigration and Nationality Act,” Memorandum from Office of Legal Counsel, US Department of Justice (22 April 1994).

Click here for 1993 OLC legal opinion: “Immigration Consequences of Undocumented Aliens’ Arrival in United States Territorial Waters,” Memorandum from Office of Legal Counsel, US Department of Justice (13 October 1993).

Click here for 1996 OLC legal opinion: “Rights of Aliens Found in US Internal Waters,” Memorandum from Office of Legal Counsel, US Department of Justice (21 November 1996).

Click here for Executive Order No 12807 (29 May 1992) containing, inter alia, US interpretation of its Article 33 obligations in regard to persons encountered in international waters.

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Hirsi v Italy: UNHCR’s Oral Intervention Before ECtHR Grand Chamber

UNHCR released the text of its oral submission as a third party intervener before the ECtHR Grand Chamber in Hirsi and others v Italy, Requête no 27765/09.  The oral submission was made by Madeline Garlick, Head of Policy and Legal Support Unit, Bureau for Europe.

Note UNHCR’s disagreement with the Government of Italy’s position on the extraterritorial applicability of Article 4 of Protocol 4’s prohibition of collective expulsion:  “Although it is of primary importance to this case, UNHCR today will not address Article 4 of Protocol 4 of the European Convention on Human Rights, since the Office of the United Nations High Commissioner for Human Rights covers it comprehensively in its written submission. UNHCR supports and shares the views expressed in that submission, holding that the prohibition of collective expulsion is at stake in this case including in relation to extraterritorial acts.”

Click here for the full text of UNHCR’s oral submission.

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Hirsi v Italy: Summary of Oral Submission made by Govt. of Italy to Grand Chamber ECtHR

I have watched a portion of the web cast of yesterday’s oral submissions before the ECtHR Grand Chamber in Hirsi and others v Italy, Requête no 27765/09.  Here is a summary of the oral submissions made on behalf of the Respondent Government of Italy by Mrs. Silvia Coppari, Co-Agent, and Mr. Giuseppe Albenzio, Adviser.  NB while I think my notes are accurate, do not rely on them for exact quotes of any of the oral remarks.

Oral Submission by Mrs. Silvia Coppari, Co-Agent, Government of Italy

Introductory Remarks Critical of Applicants:

Coppari began her oral submission by saying that the Italian government did not intend to enter into the controversy raised by Applicants in their written submissions where the Italian government and its representatives were insulted and provoked by the Applicants’ statements that the arguments relied upon by the Italian government were purely formal or quite absurd and tendentious.  Coppari described the Applicants’ written submission as a political and ideological manifesto against the government and its policy.

Questioning Why Italy Was Singled Out:

Coppari said that the issues raised by the Applicants related to European public policy in general and therefore all EU Member States should be involved in the case.  Italy’s policies and actions were adopted and carried out in a manner consistent with the guidelines, objectives, and guidance set by the EU to curb illegal migration.

Reminding Court that Case is Limited to the Events of 6 May 2009 and is Not a Challenge to Italy’s Migration Policies:

Coppari emphasised that the Application was lodged only with respect to the events that took place on 6 May 2009 when the push-back operation involving the Applicants occurred and that the Application does not deal with the public policy or practices of the Government.

Admissibility Challenge No. 1:

Coppari recalled that the allegations lacked specific supporting evidence and noted that the Applicants themselves have not testified in any domestic proceedings and have not otherwise personally participated in the case. Coppari expressed misgivings about the validity and authenticity of the authorisations given to the Applicants’ legal representatives.  Coppari said there was no certainty as to the identity of the Applicants and therefore no likelihood of individually assigning a particular alleged offence to them or a possible violation of their rights under Art. 34 of the Convention.

Admissibility Challenge No. 2:

Coppari made a second inadmissibility objection due to the failure of the Applicants to lodge an appeal with the Italian courts in line with Art. 13.  The pursuit of such domestic remedies would have given the Italian authorities the opportunity to check whether those who were rescuing illegal migrants on the high seas were possibly liable for any rights violations.  Coppari emphasised that at present there are criminal proceedings underway at the domestic level in cases very similar to the instant case and that these cases will determine whether there was compliance with national and international standards and whether there was effective access to procedures for international protection for unidentified migrants intercepted at high seas and transported to Italian vessels. The existence of these ongoing domestic cases proves that domestic remedies do exist which were not pursued by the Applicants.

The Events of 6 May 2009:

Coppari said that the operations carried out on 6 May 2009 to intercept 3 makeshift migrant vessels were done to protect the migrants from danger and to control the flows of illegal migration towards Europe.  The migrant vessels were in distress on high seas in the Maltese SAR zone.  The migrants were rescued and returned to Libya on board Italian military vessels.  There is no evidence suggesting that requests for international protection were made to Italian authorities.  The migrants were in fact welcomed upon arrival in Libya.  The returns did not breach any basic rights of the Applicants.

Prohibition Against Collective Expulsions Does Not Apply Extraterritorially:

Coppari said that prohibition of collective expulsions provided by Art. 4 of Protocol 4 is not applicable to the case.  Coppari said that the use of the word “expulsion” is an obstacle to its application in the case of extraterritorial exercise of state jurisdiction.  Not only is it an apparent obstacle, it is in fact a logical obstacle which cannot be circumvented because an “expulsion” can only happen to people who are already on national territory or who have illegally crossed the border.  The transfer to a vessel on the high seas cannot be equated with entry upon national territory or permanent residence on national territory.

Giuseppe Albenzio, Adviser, Government of Italy

Introductory Remarks – Italy’s Policies Consistent with EU Principles:

Italy has acted in respect of principles handed down by the EU. The European pact on immigration and asylum provides for limits on migratory flows, the need to control illegal immigration by ensuring that illegal immigrants are returned to the country of origin or to a country of transit, the need to make border controls more effective, and to make partnerships with countries of origin or transit.

At the Time of the Events in Question, Libya Was a Country with an Adequate Protection System in Place:

Italy’s bi-lateral agreements with Libya at the time they were implemented recalled the general principles of international law and of human rights and therefore in face of these principles recognised in the agreements, the misgivings regarding Libya’s non-subscription to the UN Refugee Convention should not exist and are not justified especially since Libya has signed the similar African Union Convention for refugees.  It should also be underlined that at the time of the events in question, the UNHCR and IOM were both active in Tripoli and the operations that were carried out in the months after the bilateral treaty was implemented should be seen in this context.

After the first phase of the implementation of the bi-lateral treaty when Italian authorities took note of the fact that Libyan authorities had ordered the UNHCR office in Tripoli to close, which in turn made it difficult to guarantee the protection of fundamental rights on its territory, Italy’s methods for rescuing migrants on the high seas were modified and people who were on vessels coming from Libya would be accompanied to Italian soil after rescue.

The web cast of the hearing is available here.  (I was able to view this with IE but not with Firefox.)

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