Tag Archives: European Convention of Human Rights

by | 08 Sep 2011 · 05:57

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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by | 23 Jun 2011 · 16:18

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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by | 23 Jun 2011 · 04:43

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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by | 22 Jun 2011 · 04:12

22 June, 09.15 CEST, ECtHR Grand Chamber Hearing in Hirsi and Others v. Italy

[Update:  A web cast of the hearing is available here.  (I was able to view this with IE but not with Firefox.)]

The case of Hirsi and others v Italy, Requête no 27765/09, will be heard by the Grand Chamber of the European Court of Human Rights today, 22 June, 09.15 am CEST.

Given the events in Libya and the resulting halt to the Italian push-back practice, there may have been a moment some weeks ago when the question of mootness of the case might have been considered, but given the recently executed Memorandum of Understanding between Italy and the Libyan National Transitional Council and the public promises made by the leadership of the NTC to respect and implement the migration and other agreements made by the Gaddafi government, it would appear Italy hopes to revive the push-back practice at some point in the future.

From the Registrar’s Press Release:

“The case concerns a group of Somalian and Eritrean migrants travelling from Libya who were intercepted at sea by the Italian authorities and sent back to Libya. The applicants are eleven Somalian and thirteen Eritrean nationals. They were part of a group of about 200 people who left Libya in 2009 on board three boats bound for Italy. Among them were women who were pregnant at the time and children. On 6 May 2009, when the boats were 35 miles south of Lampedusa (Agrigento), in waters under Maltese jurisdiction for search and rescue purposes, 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. The applicants consider that their case falls within the jurisdiction of Italy. Relying on Article 3 of the Convention (prohibition of inhuman or degrading treatment), they argue that the decision of the Italian authorities to intercept the vessels on the high seas and send the applicants straight 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). Lastly, relying on Article 13 of the Convention (right to an effective remedy), they complain that they had no effective remedy against the alleged violations of Articles 3 of the Convention and 4 of Protocol No. 4. The application was lodged with the European Court of Human Rights on 26 May 2009. The Chamber to which the case was assigned relinquished jurisdiction in favour of the Grand Chamber on 15 February 2011.”

From my previous post of 16 March:

The case of Hirsi and others v Italy, Requête no 27765/09, has been scheduled for a hearing on 22 June 2011, 9.15 am, before the Grand Chamber of the European Court of Human Rights.

Proceedings before the Grand Chamber were initiated on 1 March 2011 when the Second Section of the Court relinquished jurisdiction.  On 17 November 2009 the Second Section of the Court communicated the case.  The case was filed on 26 May 2009 by 11 Somalis and 13 Eritreans who were among the first group of about 200 migrants interdicted by Italian authorities and summarily returned to Libya under the terms of the Libya-Italy agreement which took effect on 4 February 2009.  The Applicants were intercepted on 6 May 2009 approximately 35 miles south of Lampedusa.

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

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

Art. 3 Torture;

Art. 1 (1) General undertaking/HPC;

Art. 13 Effective remedy/national authority; and

Art. 3 Inhuman or degrading treatment.

The Statement of facts, complaints and questions (EXPOSÉ DES FAITS et QUESTIONS AUX PARTIES ET DEMANDES D’INFORMATIONS) issued by the Second Section to the parties is available only in French:

GRIEFS

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

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

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

QUESTIONS AUX PARTIES ET DEMANDES D’INFORMATIONS

QUESTIONS

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

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

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

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

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

DEMANDES D’INFORMATIONS

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

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

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

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

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

Click here (FR) for EXPOSÉ DES FAITS et QUESTIONS AUX PARTIES ET DEMANDES D’INFORMATIONS.

Click here, here, and here for my previous posts on the case.

Also, click here for a post by Costanza Hermanin, an Open Society Justice Initiative consultant.

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by | 14 Jun 2011 · 04:12

Moreno-Lax, Int J Refugee Law, “Seeking Asylum in the Mediterranean: Against a Fragmentary Reading of EU Member States’ Obligations Accruing at Sea”

The latest edition of the International Journal of Refugee Law, contains an article by Violeta Moreno-Lax (PhD Candidate at Université catholique de Louvain; Visiting Fellow 2010-11 at Refugee Studies Centre, University of Oxford) entitled “Seeking Asylum in the Mediterranean: Against a Fragmentary Reading of EU Member States’ Obligations Accruing at Sea.”

Abstract: “Although both international and EU law impose a number of obligations on the EU Member States with regard to persons in distress at sea, their effective implementation is limited by the manner in which they are being interpreted. The fact that the persons concerned are migrants, who may seek asylum upon rescue, has given rise to frequent disputes and to episodes of non-compliance. Frontex missions and the Italian 2009 push-back campaign illustrate the issue. With the objective of clarifying the scope of common obligations and to establish minimum operational arrangements for joint maritime operations, the EU has adopted a set of common guidelines for the surveillance of the external maritime borders. On the basis of the principle of systemic interpretation, this article intends to contribute to the clarification of the main obligations in international and European law binding upon the EU Member States when they operate at sea.”

This is a revised and updated version of the paper presented at the 12th IASFM Conference held in Nicosia, 28 June-2 July 2009.  [The article was written and sent for typesetting before the various uprisings in North Africa – IJRL Editor, 4 March 2011]

Click here for link.  (Subscription or payment required.)

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by | 24 May 2011 · 04:52

CoE Report Regarding Accession of EU to ECHR

“The seventh working meeting of the CDDH informal working group on the accession of the European Union to the European Convention on Human Rights (CDDH UE) with the European Commission was held in Strasbourg on 10-13 May 2011” and the report of the meeting was released on 16 May.  The meeting report includes a Draft Revised Accession Agreement (see Appendix III in meeting report).  (HT to @echrnews.)

Click here for meeting report.

Click here for link to web page of CoE Informal Group on Accession of the European Union to the Convention (CDDH-UE).

Click here for submission by the AIRE Centre and Amnesty International to the working group.

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by | 05 Apr 2011 · 04:52

Frontex Releases its “Fundamental Rights Strategy”

According to a Frontex press release, “Frontex’s Management Board endorsed the Agency’s Fundamental Rights Strategy during its most recent meeting, on March 31. The approved document sets out the objectives, legal and political context, operational implications and implementation plan for the strategy.”  “The new strategy will be elaborated into an Action Plan, which has been requested by the Management Board with a view to adopting it at the next meeting, scheduled for May 24.”

I have done a quick read of the 8 page document and overall had a positive reaction to the strategy.  One weakness, and there are probably others, is that in the end “Member States remain primarily responsible for the implementation of the relevant international, EU or national legislation and law enforcement actions undertaken in the context of Frontex coordinated joint operations…”  (See Para 13 below.)  There is not much that Frontex can do about this, unless Frontex is given authority to act independently from individual MS.

The strategy does contemplate that Frontex can terminate a Joint Operation if respect for fundamental rights can not be guaranteed.  (See Para 15 below.)  I try to imagine how this strategy would operate within the current Joint Operation Hermes if the influx of Tunisians were to continue and expand and if Italy were to begin unilateral returns of Tunisian nationals (or others) to Tunisia without adequate process.  Would Frontex discontinue Operation Hermes?  It is hard to imagine that happening given the current situation in North Africa.

Here are some excerpts from the strategy consisting of some of the provisions which jumped out at me – the full document however should be consulted:

“Preamble

Frontex considers that respect and promotion of fundamental rights are unconditional and integral components of effective integrated border management.

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The Legal and Political Context

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13. Member States remain primarily responsible for the implementation of the relevant international, EU or national legislation and law enforcement actions undertaken in the context of Frontex coordinated joint operations (JOs) and therefore also for the respect of fundamental rights during these activities. This does not relieve Frontex of its responsibilities as the coordinator and it remains fully accountable for all actions and decisions under its mandate. Frontex must particularly focus on creating the conditions for ensuring compliance with fundamental rights obligations in all its activities.

The Operationalisation

Joint Operations

14. [***] One particular objective in [Joint Operations] is ensuring that the right to international protection must not be hampered by the law enforcement action and that persons seeking protection are referred to the competent national authorities to assess their case.

15. [***] Corrective measures should be taken in case of breach or serious risk of breach of fundamental rights. As last resort, Frontex might terminate a JO if the conditions guaranteeing the respect for fundamental rights are no longer met. [***]

17. Frontex will put in place an effective reporting system to ensure that any incidents or serious risks regarding fundamental rights are immediately reported by any participating officer or Frontex staff member and can be acted upon. This reporting should be the basis for effective monitoring of all its operations. The monitoring effectiveness and credibility will rely heavily on the commitment of national border guard services to report but also on the involvement of external stakeholders. The Operational Plan shall set out the modalities for reporting, including how and to who report.

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19. Alleged violations of human rights reported either by national or Frontex officers or third parties, when substantiated, will be followed up by Frontex by communicating and clarifying the situation in cooperation with the competent national authorities without prejudice to any resulting administrative or penal procedures. Member States should also inform Frontex on the follow-up measures.

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21. In addition to pursuing a regular exchange of information with external partners engaged in fundamental rights protection activities, in particular the Fundamental Rights Agency (FRA), the European Asylum Support Office (EASO), the United Nations High Commissioner for Refugees (UNHCR), the International Organization for Migration (IOM) and the EU Anti-Trafficking Coordinator, Frontex will endeavour to ensure their regular involvement in the relevant operational activities in accordance with the Working Arrangements with these partners. The involvement of these external partners or others should be foreseen in the Operational Plan, which should also define the scope of the cooperation.

22. Frontex will also seek advice from its external partners on the relevant instructions or guidelines for officers taking part in Frontex activities. These instructions or guidelines, which should form an integral part of each Operational Plan, could relate to methods for better identifying people seeking international protection, proper treatment of vulnerable groups including potential victims of trafficking or fundamental rights monitoring of operational activities. The final aim is to promote the highest standards in compliance with fundamental rights by the development and promotion of best practices.

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External Relations

28. Frontex cooperation with Third Countries’ border-guard services is conducted under the EU External Relations Policy and shall therefore be guided by the principle of the respect of human rights. Frontex is committed to adjusting its cooperation arrangements and activities to the EU foreign policy measures adopted as a consequence of the human rights situation in the partner Third Country.

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The Implementation

[***]

38. In order to increase the transparency and credibility of this process, external third parties, in particular those representing civil society, shall be involved. Their concerns and perspectives must be taken into account for the evaluation and revision of the strategy. Frontex, national border-guard services, external partners and representatives of civil society shall therefore have the possibility to exchange views and suggest means of improvement for the strategy and the Action Plan in a consultative forum, to be convened periodically at Frontex Headquarters.

[***]”

Click here for the Frontex strategy document.

Click here for Frontex press release.

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by | 16 Mar 2011 · 03:08

Hirsi and Others v. Italy – ECtHR Grand Chamber Hearing Scheduled for 22 June

The case of Hirsi and others v Italy, Requête no 27765/09, has been scheduled for a hearing on 22 June 2011, 9.15 am, before the Grand Chamber of the European Court of Human Rights.

Proceedings before the Grand Chamber were initiated on 1 March 2011 when the Second Section of the Court relinquished jurisdiction.  On 17 November 2009 the Second Section of the Court communicated the case.  The case was filed on 26 May 2009 by 11 Somalis and 13 Eritreans who were among the first group of about 200 migrants interdicted by Italian authorities and summarily returned to Libya under the terms of the Libya-Italy agreement which took effect on 4 February 2009.  The Applicants were intercepted on 6 May 2009 approximately 35 miles south of Lampedusa.

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

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

Art. 3 Torture;

Art. 1 (1) General undertaking/HPC;

Art. 13 Effective remedy/national authority; and

Art. 3 Inhuman or degrading treatment.

The Statement of facts, complaints and questions (EXPOSÉ DES FAITS et QUESTIONS AUX PARTIES ET DEMANDES D’INFORMATIONS) issued by the Second Section to the parties is available only in French:

GRIEFS

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

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

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

QUESTIONS AUX PARTIES ET DEMANDES D’INFORMATIONS

QUESTIONS

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

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

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

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

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

DEMANDES D’INFORMATIONS

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

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

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

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

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

Click here (FR) for EXPOSÉ DES FAITS et QUESTIONS AUX PARTIES ET DEMANDES D’INFORMATIONS.

Click here, here, and here for my previous posts on the case.

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by | 21 Jan 2011 · 17:05

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Click here for full ECRE Statement on the decision.

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

Click here, here, and here for articles.

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by | 23 Nov 2010 · 17:20

INTERIGHTS Litigation Workshop: Human Security and Migration (27-28 Jan)

Of possible interest to some readers. The deadline for applications [INTERIGHTS_Workshop_Application_Form] is Sunday, 12 December 2010.  Early applications are strongly encouraged.

INTERIGHTS‘ Europe Programme covering Council of Europe countries within Central and Eastern Europe and former Soviet Union is pleased to invite applications for a strategic litigation workshop on “Human Security and Migration” which will be held in London on 27-28 January 2011. The workshop is open to lawyers and human rights activists engaged in legal advocacy from Council of Europe states, especially those from Central and Eastern Europe, the Baltic States and the Caucasus. To ensure a fruitful in-depth discussion, only a limited number of places will be offered.

Throughout the region, migrants – in particular, undocumented/irregular migrants, unskilled migrant workers, and asylum seekers and refugees – are vulnerable to a wide range of human rights abuses such as ill-treatment, arbitrary detention, servitude and forced labour, denial of access to justice, interference with private and family life, and denial of access to medical treatment and social services.  Moreover, due to their non-citizen (often irregular) status, migrants can be denied or severely restricted in their access to legal redress both in theory and practice.

The workshop’s objectives include:

  • – facilitating cooperation and exchange of ideas and experiences between local lawyers and human rights defenders who are engaged in litigation and other forms of legal advocacy related to human security in the context of migration;
  • – achieving a better understanding of the nature and scale of violations occurring in this context;
  • –  examining legal strategies to address those violations, including the identification of applicable legal standards and appropriate international, regional and national legal fora;
  • –  increasing the capacity of participating lawyers and NGOs to litigate abuses of human rights in the context of migration at international and regional level, especially before the European Court of Human Rights;
  • –  improving INTERIGHTS’ understanding of the legal challenges existing in the field of human security and migration and the ways in which we can participate in addressing them;
  • –  nurturing cooperation between INTERIGHTS and local lawyers and NGOs on the thematic issues identified below.

As an organisation focussing on strategic litigation, we are primarily interested in applications from practicing lawyers who have experience of representation and legal advice in cases involving serious violations of human rights of migrants or victims of trafficking.  However, we also wish to encourage applications from non-lawyers or non-litigating lawyers who are directly involved in protecting the rights of migrants. We shall prioritise applications from lawyers and activists working in Central and Eastern Europe (including Russia and Ukraine), the Baltic States and the Caucasus. In exceptional cases, however, applications from Western Europe could be accepted as well. We are especially – but not exclusively – interested in applicants who have an experience of working on any of the following areas:

  • (a)     treatment of asylum seekers and refugees, including issues arising under Articles 2, 3, 5, 6, 8 and 14 of the European Convention of Human Rights, such as violations of the right to life, the non-refoulement principle in the context of expulsions and deportations, unlawful detention, ill-treatment in detention, inadequate procedural guarantees for detainees or persons subject to transfer, such as denial of access to a lawyer, and discrimination in the application of immigration rules;
  • (b)     prevention of trafficking and human beings and protection of the human rights of victims of trafficking, including in the context of transit countries and countries of origin;
  • (c)    treatment of migrant labourers/undocumented migrants, especially issues arising under Article 4 (e.g. exploiting their vulnerable position to deny remuneration or provide grossly inadequate remuneration for their work; coercing into work by withholding their identity papers or deliberately failing to regularise their legal status); and Articles 2, 3 and 8 (e.g. poor health and safety standards at work, a lack of access to health care).

To ensure that the workshop reflects current and emerging trends in the identified area and is practical use to the participating lawyers, all applicants are asked to submit the description of a relevant case they have worked/are working on. The workshop’s agenda will be shaped by the legal issues arising out of the cases submitted by the selected participants.

The workshop will be held in English with simultaneous interpretation into Russian. Therefore, it is essential that participants are proficient in either English or Russian.

All reasonable travel and subsistence costs associated with attendance at the training will be covered by INTERIGHTS.

To apply, please email a completed application form (SEE BELOW) to Arpi Avetisyan, Legal Team Coordinator, at aavetisyan@interights.org. The deadline for applications is Sunday, 12 December 2010.  Early applications are strongly encouraged.

For further information, please contact Yuri Marchenko at ymarchenko@interights.org.

Click on this link for Application:  INTERIGHTS_Workshop_Application_Form

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