Tag Archives: COE Commissioner for Human Rights

CoE Human Rights Commissioner Releases Report on Italy’s Treatment of Roma and Migrants

Council of Europe Commissioner for Human Rights, Thomas Hammarberg, just released a report on Italy based upon his visit to Italy on 26-27 May 2011.  The report addresses concerns relating to the treatment of the Roma and Sinti and relating to the treatment of migrants, including migrants arriving from North Africa.

Excerpts:

“Strasbourg, 7 September 2011 – CommDH(2011)26 – English only

Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following his visit to Italy from 26 to 27 May 2011

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II. Protection of the human rights of migrants, including asylum seekers

Rescue operations and interceptions at sea

The Commissioner welcomes the invaluable efforts of the Italian authorities aimed at rescuing migrants on boats crossing the Mediterranean. He strongly encourages the Italian authorities to maintain their long-standing tradition of rescue, which is all the more indispensable in the current context of forced migration from Libya. He calls on the Italian authorities to ensure that in all cases where migrants are in distress at sea their rescue and safety enjoy absolute priority over all other considerations, including any lack of clarity and agreement, notably between Italy and Malta, about responsibilities for rescue. With reference to the operations carried out jointly with Libya in the central Mediterranean aimed at intercepting migrants fleeing Libya on boats and returning them there (so-called push-backs), the Commissioner urges the Italian authorities to discontinue and refrain from becoming involved in any practices in the field of interceptions at sea that may result in migrants being sent to places where they are at risk of ill treatment or onward refoulement.

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II. Protection of the human rights of migrants, including asylum seekers

44. Following the political unrest in Tunisia and the armed conflict in Libya, the number of migrants, including asylum seekers, arriving on boats to Italy, and in particular Lampedusa, has increased sharply. Since mid-January, approximately 24 000 people have arrived from Tunisia. At the end of March 2011, migrants also started to arrive on boats from Libya (the biggest groups being nationals of Nigeria, Ghana, Mali, Ivory Coast, Bangladesh, Eritrea and Somalia) and by 23 June their number had almost reached 20 000. In addition to arrivals from Tunisia and Libya, some 2 000 migrants landed in southern Italy on boats coming from Egypt, Greece and Turkey. On 23 June, the total figure of arrivals by sea to Italy since January 2011 therefore stood at around 46 000.

45. It is clear that these events pose a number of challenges relating to a wide range of human rights, including the right to seek asylum and the right to life, notably in connection with rescue operations at sea. With most of the migrants from Northern Africa seeking refuge and a new life in “Europe” generally, and not specifically in the countries that they reach first, the European dimension of these challenges is equally clear. Certainly, the ongoing military operations in Libya and their impact on migratory movements bound to Europe has lent further visibility to this European and international dimension. Accordingly, the Commissioner has on many occasions called for a greater European role, in the form of solidarity and co-operation in meeting the human rights challenges relating to arrivals of migrants, including asylum seekers, from Northern Africa, but unfortunately the response has been limited. The Commissioner reiterates this call in respect of the situation with which Italy is confronted at the moment.

46. At the same time, the Commissioner wishes to stress that Italy must abide by its human rights obligations vis-à-vis all migrants, including asylum seekers, who find themselves within Italy’s jurisdiction – a responsibility which in the Commissioner’s view has not been met fully. While the Italian authorities have taken a number of steps to protect the human rights of these persons, from rescue at sea through to reception and access to asylum, concerns remain in different subject areas, some of which are highlighted below.

47. More generally, the Commissioner wishes to stress that a more objective and balanced representation of the migration movements prompted by the events in Northern Africa, and notably the conflict in Libya, would assist in ensuring a human rights compliant response to these phenomena in both Italy and Europe as a whole. In this respect, the Commissioner notes that the 20 000 arrivals from Libya to Italy mentioned above stand, at least for the moment, in stark contrast with the many times greater forecasts concerning the potential number of arrivals from Libya which had been made publicly in Italy at the beginning of the conflict. It is also sobering to note that these arrivals account for around 2% of the persons having left Libya as a result of the conflict. Indeed, 98% of the approximately 1 100 000 people who have left Libya so far have done so by crossing land borders into Tunisia, Egypt, Niger, Chad and Algeria.

a. Rescue operations and interceptions at sea

48. The Italian authorities, and particularly the coast guard and customs police, have been instrumental in saving the lives of many migrants who have attempted to reach European shores from Northern Africa on unseaworthy boats. Rescue operations have obviously intensified in recent months, reflecting the increase in departures of migrant boats from Tunisia and Libya since January 2011.

49. Over the same time period, however, at least as many as 1 500 persons have lost their lives while trying to cross the Mediterranean to seek a safe haven. The Commissioner notes that responsibilities remain to be ascertained in certain cases. For instance, in an episode which is currently being investigated by the Parliamentary Assembly of the Council of Europe, and which resulted in the death at sea of 61 persons, including over 20 women and children, a boat carrying 72 migrants was left adrift for two weeks in spite of its presence having reportedly been signalled to the authorities of Italy, Malta and NATO, and the boat itself having been spotted by a helicopter and a passing vessel of unidentified nationalities. The Commissioner notes that in some cases, lack of clarity and agreement, notably between Italy and Malta, about responsibilities for rescue may delay operations or otherwise put the lives of migrants in distress at risk. More generally, the Commissioner finds it difficult to accept that people in distress at sea can face death in one of the busiest areas of the Mediterranean, especially now with the large numbers of military and other vessels in the area.

50. The Commissioner also notes that since May 2009, and up to the beginning of the armed conflict in Libya in February 2011, the Italian authorities have carried out operations jointly with Libya in the central Mediterranean, aimed at intercepting migrants fleeing Libya on boats and returning them there (so-called respingimenti, or push-backs). The practice has been repeatedly criticised for violating international human rights law, as migrants, including asylum seekers, are returned to Libya where they risk being ill-treated or in turn deported to other countries where they are exposed to such a risk, without being given an opportunity to seek and enjoy international protection through an individual assessment of their case. Indeed, in a case that is currently pending before the Grand Chamber of the European Court of Human Rights, a group of Somali and Eritrean migrants who were travelling by boat from Libya have argued that the decision of the Italian authorities to intercept their vessels on the high seas and send them straight back to Libya exposed them to a risk of ill-treatment there, as well as to a serious threat of being sent back to their countries of origin, where they might also face ill-treatment.24

51. The Commissioner notes that the beginning of these operations started shortly after the conclusion of agreements between Italy and Libya in 2008 and 2009.25 In his 2009 report on Italy, the Commissioner expressed “his disapproval of bilateral or multilateral agreements for the forced return of irregular migrants to countries with long-standing, proven records of torture”,26 a concern which was shared by the Parliamentary Assembly in June 2010.27 In February 2011, following the beginning of the armed conflict in Libya, Italy announced that it had suspended the implementation of its agreements with Libya. However, the Commissioner also notes that on 17 June 2011, Italy signed with the Libyan National Transitional Council a Memorandum of Understanding, which refers to the commitments contained in the agreements previously signed with Libya and provides for mutual assistance and co-operation in combating irregular immigration, “including the repatriation of immigrants in an irregular situation.”28

Conclusions and recommendations

52. The Commissioner welcomes the invaluable efforts of the Italian authorities aimed at rescuing migrants on boats in the Mediterranean, which have saved thousands of lives over the past months and years. He strongly encourages the Italian authorities to maintain their long-standing tradition of rescue, a task which is all the more indispensable in the current context of forced migration from Libya.

53. At the same time, the Commissioner calls on the Italian authorities to ensure that in all cases where migrants are in distress at sea their rescue and safety enjoy absolute priority over all other considerations. The attention of the Italian authorities is drawn to the PACE resolution 1821 (2011)29 adopted in June 2011, which calls on member states to “fulfil without exception and without delay their obligation to save people in distress at sea.”30 In this connection, the Commissioner recalls that on 8 April, just two days after a boat from Libya carrying more than 220 migrants capsized near the Italian island of Lampedusa causing the death by drowning of more than 200 persons, UNHCR recommended that “[a]ny overcrowded boat leaving Libya these days should be considered to be in distress.” On the same occasion UNHCR also underlined that “[a] long-standing tradition of saving lives at sea may be at risk if it becomes an issue of contention between States as to who rescues whom.”

54. The Commissioner urges the Italian authorities to discontinue and refrain from becoming involved in any practices in the field of interceptions at sea that may result in migrants being sent to places where they are at risk of ill treatment or onward refoulement. The Commissioner wishes to highlight that when a state exercises effective control, authority or power over third-country nationals rescued or intercepted at sea (including the state’s own territorial waters, those of another state and international waters) its obligations include ensuring effective access to adequate asylum determination procedures and not returning individuals to countries where they would face a real risk of persecution or treatment contrary notably to Articles 2 (right to life) and 3 (prohibition of torture) of the ECHR.

55. In this connection, the Commissioner draws once more the attention of the Italian authorities to the PACE resolution 1821 (2011) which calls on member states to: “refrain from any practices that might be tantamount to direct or indirect refoulement, including on the high seas, in keeping with the UNHCR’s interpretation of the extraterritorial application of that principle and with the relevant judgements of the European Court of Human Rights”; and to “suspend any bilateral agreements they may have concluded with third states if the human rights of those intercepted are not appropriately guaranteed therein, particularly the right of access to an asylum procedure, and wherever these might be tantamount to a violation of the principle of non-refoulement […].”31

56. In accordance with UNHCR’s recommendations on protection with regard to people fleeing from Libya, the Commissioner strongly encourages the Italian authorities to continue to keep the country’s borders open for people who are forced to flee from Libya and are in need of international protection.32

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Click here for Report.

Click here for CoE Press Statement.

Click here for CoE Human Rights website regarding human rights of immigrants, refugees, and asylum seekers.

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Maltese Minister Says Malta Will Not Reconsider Its Detention of Migrants

Malta Today reports that Justice and Home Affairs Minister Carm Mifsud Bonnici reaffirmed Malta’s detention law and disagrees with the comments made by COE Human Rights Commissioner Thomas Hammarberg.  From Malta Today: “‘This [the detention policy] is compliant with Malta’s EU and other international obligations. As a matter of fact, the European Convention on Human Rights does not rule out detention,’ Mifsud Bonnici said, citing Article 5 (1)(f) of the Convention. … Mifsud Bonnici however said that the judgement in the [ECtHR’s] Massoud vs Malta case, ‘cannot, in any way be interpreted as constituting a condemnation of Malta’s detention policy. This has been proved and explained time and again.’”

Click here for article.

Click here for Commissioner Thomas Hammarberg’s statement.

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500 Migrants Reach Malta from Libya – First Arrivals in 2011

300 migrants arrived in Malta this afternoon.  A second group of approximately 250 is expected to arrive this evening.  The migrants are believed to be Sub-Saharan asylum seekers from Libya.

Under Maltese law, the arriving asylum seekers will be detained.  The law purports to authorise detention for up to 18 months.  Malta’s detention centres are at present largely empty due to the lack of recent migrant arrivals.  COE Human Rights Commissioner Thomas Hammarberg concluded a visit to Malta just last week.  The Commissioner’s report pertaining to his visit has not yet been released, but a statement was released in which the Commissioner called for “the policy of mandatory detention of all irregular migrants, including asylum seekers, [to] be reconsidered.”

Excerpts from the Statement:

“‘Malta and Europe need each other if the challenges of migration are to be met in a manner that respects human rights,’ said the Council of Europe Commissioner for Human Rights, Thomas Hammarberg, following his visit to Malta from 23 to 25 March. According to the Commissioner, Malta needs to move away from a reactive approach to migration and establish a system that is fully in line with European standards concerning the human rights of immigrants and asylum seekers. At the same time, a much more generous and collegial approach is needed on the part of other European states, by accepting to host some of the persons to whom Malta has rightly accorded international protection. ‘However, with the exception of France and Germany – and further afield the US – this has not been the case so far.’

The Commissioner underlined that the current uncertainty related to the events in Libya and possible forced migration towards Malta and Europe should not deter the Maltese authorities from undertaking the necessary reforms. ‘Instead this is another reason for more European solidarity to support these reforms’ said the Commissioner, noting also that the substantial decrease in the number of irregular arrivals in Malta over the last two years has taken considerable pressure off Malta.

In this context, the policy of mandatory detention of all irregular migrants, including asylum seekers, should be reconsidered. The Commissioner notes that the mandatory detention of migrants can hardly be reconciled with the requirements set by the European Convention on Human Rights, as also reflected in a July 2010 judgment of the Strasbourg Court in the case of Louled Massoud, which found that Malta had violated the Convention by detaining an asylum seeker, whose claim had been rejected, for almost 18 months. ‘Malta should take all necessary legislative and other measures in order to implement fully and effectively this important judgment of the European Court of Human Rights’ said the Commissioner. Alternatives to the detention of migrants should be provided for in law, in accordance with the Council of Europe Parliamentary Assembly’s Resolution 1707 (2010). …”

Click here and here for articles.

Click here for the Commissioner’s full statement

Click here for link to Commissioner’s thematic web page on human rights of immigrants, refugees and asylum seekers.

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

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

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

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

Click here for draft programme.

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Exchange of Letters Between COE HR Commissioner and Greece

COE Human Rights Commissioner Thomas Hammarberg has released copies of the correspondence between his office and the Greek government concerning his February visit to Greece and his concerns over a variety of issues, including Greece’s treatment of asylum seekers.  According to the Commissioner’s web site “[t]he letters focus on the human rights of migrants, especially asylum seekers, minorities, and the conduct of members of law enforcement agencies.  In view of long-standing, serious shortcomings in the field of asylum, the Commissioner highlights the urgent need for the authorities to support the ongoing reform in this field with the necessary institutional capacity and tools for implementation. The Commissioner also urges the authorities to address the situation of unaccompanied or separated migrant children.”

Click here for link to the statement and the letters.

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COE Committee of Ministers: “Europe’s boat people: mixed migration flows by sea into southern Europe”

The Council of Europe’s Committee of Ministers on 31 March adopted its Reply to COE Parliamentary Assembly Recommendation 1850 (2008) on“Europe’s boat people: mixed migration flows by sea into southern Europe.”

Comments from the COE European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment are attached to the Rely as an Appendix.

The Reply contains an acknowledgement that the Committee of Ministers was not able to reach agreement on the recommendation that guidelines be prepared for minimum standards to be applied to the detention of irregular migrants:

“5. The Committee of Ministers has taken note of the proposal that guidelines be prepared for minimum standards to be applied to the detention of irregular migrants and asylum seekers. However, the Committee of Ministers has not, at the present time, reached a common position with regard to examining possibilities for Council of Europe action in this area. The Committee of Ministers underlines the importance of the relevant instruments of the Council of Europe, such as the European Convention on Human Rights and the recommendations adopted by the Committee of Ministers in this field (see paragraph 9 below), as well as those emerging from the work of the CPT and the Commissioner for Human Rights. It notes the ongoing work in the European Union in this field, including the revision under way of the 2003 directive laying down minimum standards for the reception of asylum seekers.”

Parliamentary Assembly Recommendation 1850 was issued in 2008 prior to the implementation in 2009 of Italy’s push-back practice and the Committee of Ministers’ Reply does not make explicit reference to Italy’s push-back policy.  The Recommendation and Reply are focused on the treatment of irregular migrants as they arrive on the shores of member states.

But there are several statements in the Reply which should apply implicitly to the irregular migrants whether encountered upon arrival on shore or intercepted or rescued in international waters.

For example:

“6. Particularly significant instruments in this field, also to be borne in mind in the framework of any possible activity in this area, include Committee of Ministers’ Recommendation No. R (98) 13 of 18 September 1998 on the right of rejected asylum seekers to an effective remedy against decisions on expulsion in the context of Article 3 of the European Convention on Human Rights, Recommendation No. R (98) 15 on the training of officials who first come into contact with asylum seekers, in particular at border points and Recommendation Rec(2003)5 on measures of detention of asylum seekers. The Committee of Ministers would also signal the “Twenty guidelines on forced return” adopted on 20 May 2005 and the Guidelines on human rights protection in the context of accelerated asylum procedures adopted on 1 July 2009.”

“7. The Committee of Ministers would also refer to other texts relevant in this area, such as its reply to Parliamentary Assembly Recommendation 1755 (2006) on “Human rights of irregular migrants” in which it draws attention to the minimum safeguards provided for in the European Convention on Human Rights that can be applied to irregular migrants. It also recalls its Recommendation No. R (2000) 3 to member states on the right to satisfaction of basic material needs of persons in situations of extreme hardship, which provides a minimum threshold of rights which should be recognised regardless of their status.”

“10. The Committee of Ministers would also draw attention to the extensive work of the Commissioner for Human Rights in this field and to his recommendations to member states and his appeals for solidarity within Europe with those countries that are on the frontline and facing a very difficult situation. It also refers to the regular exchanges of views that it holds with the Commissioner during the year. These exchanges are both of a general nature but also concern specific country reports in which he addresses, inter alia, the protection of human rights of immigrants and asylum seekers, including, where relevant, those arriving by sea. [***]”

Click here for the full Committee of Ministers Reply.

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