Approximately 2000 migrants in 11 boats reached Lampedusa and Pantelleria over the past 36 hours or so. Most of the migrant boats were rescued by Italian authorities and most are believed to have travelled from Libya, though one small boat is believed to have left from Tunisia. Good weather is again the likely reason for the latest surge in numbers.
Tag Archives: Maritime Interdiction
According to calculations made by Fortress Europe, 2011 is the deadliest year in the Mediterranean since at least 1994. 1,931 people have died during the first seven months of 2011. This number is higher than the total number of deaths in all of 2008, the year with the previous highest death toll of 1,274. Fortress Europe estimates that 1,674 (87%) of the 1,931 deaths have occurred in the Sicilian Channel and that most of the deaths in the Sicilian Channel have involved migrants travelling from Libya towards Europe.
Click here for Fortress Europe post. (IT)
Click here for Clandestina blog post. (EN)
From Fortress Europe:
|Vittime del Canale di Sicilia dal 2002 ai primi 7 mesi del 2011|
Italian authorities responded to a migrant boat in distress Sunday night near Lampedusa. The boat was carrying about 270 migrants. Seas were too rough to transfer the migrants to the Italian vessels and the migrant boat was escorted towards Lampedusa. The boat broke down about one mile from Lampedusa and a transfer operation was begun this morning. During the transfer 25 bodies were discovered in the boat. It is believed that the deaths were probably caused by asphyxiation because the boat was overloaded and packed very tightly with passengers.
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.
A coalition of migrants’ rights organisations, including Migeurop, Cimade, Gisti, FIDH, and others hope to organise a humanitarian “flotilla which will undertake maritime surveillance so that assistance is finally provided to people in danger. The participatory organisations call on European bodies and governments on both sides of the Mediterranean to establish relations within this common area on the basis of exchange and reciprocity. This flotilla will embark political figures, journalists, artists, and representatives of the organisations involved in the project. Any organisation, trade-union, political representative, seafarer, journalist, artist or other individual interested in this initiative may join this mailing list : « Mediterranean Intervention ».” To subscribe to the mailing list, please send an email to firstname.lastname@example.org.
Click here for full Migreurop statement.
In a presentation on 28 June before the Italian Parliament’s Schengen Committee (Comitato parlamentare di controllo sull’attuazione dell’accordo di Schengen), officials from the Italian Coast Guard reported that at least 44,000 migrants have reached Italy by boat so far in 2011.
1,000 additional migrants arrived in Lampedusa over the 24 hour period Wednesay to Thursday of this week. With the exception of one small boat carrying 8 Tunisians, all of the boats are believed to have left from Libya in recent days.
Klepp, Int J Refugee Law, “A Double Bind: Malta and the Rescue of Unwanted Migrants at Sea, a Legal Anthropological Perspective on the Humanitarian Law of the Sea”
An article by Silja Klepp (Research Associate, Research Center for Sustainability Studies (artec), University of Bremen) entitled “A Double Bind: Malta and the Rescue of Unwanted Migrants at Sea, a Legal Anthropological Perspective on the Humanitarian Law of the Sea” has been published as an online advance access article by the International Journal of Refugee Law.
Abstract: “This paper discusses research results from anthropological fieldwork carried out in Malta in 2007. The island, which is situated in the central Mediterranean Sea between Tunisia, Libya and Italy, is a focal point regarding the continuing refugee situation. One of the research aims was to investigate the situation at sea concerning Search and Rescue (SAR) operations for migrants and refugees crossing the Mediterranean by boat. In the year 2006, 556 missing and drowned migrants were registered in the central Mediterranean between Libya, Malta and Italy, this number increased to 642 in 2008.1 The goal of the research in Malta was therefore to understand why an increasing number of migrants were dying at sea and what role the European security forces play in this context.
After introducing the research perspective of this article, background information concerning migration movements in the Mediterranean Sea between Libya, Italy and Malta in recent years is provided. Due to European regulations, which are considered unfavourable for the island, and its population density, Malta feels under pressure from migrants arriving by boat across the Mediterranean. Different concepts regarding a ‘place of safety’ to disembark rescued boat migrants are debated. The ambiguities in the responsibilities cause problems for the captains who rescue migrants in distress at sea. These ambiguities may in turn lead to a weakening of the SAR regime. Following discussion of the legal and political quarrels on the place of safety, the SAR operations at sea of the Armed Forces of Malta is analysed. The findings show that it is not merely a case of enforcing legal norms created by international law. The process is much more complex: legal gaps are filled by regional actors, through informal or even illegal practices, asserting their own claims at their convenience. Thus, transnationalization processes of law, such as the international SAR regime, are a fragmented and ambiguous set of regulations, creating space for negotiation and manoeuvre.2”
Click here for link. (Subscription or payment required.)
Also by Klepp from 2010, European Journal of Migration and Law: “A Contested Asylum System: The European Union between Refugee Protection and Border Control in the Mediterranean Sea.”
A boat carrying 840 sub-Saharan asylum seekers from Libya reached Lampedusa on 22 June. According to media reports this landing constitutes the largest single landing of a migrant boat on Lampedusa, though boats carrying larger numbers of persons have arrived elsewhere. Among the 840 persons were 117 women and 28 children. 932 migrants landed in Pozzallo, Ragusa, several weeks ago. Because the 20-metre long boat was dangerously overcrowded and unstable, Italian authorities boarded the vessel as it approached Lampedusa in order to redistribute weight and to steer the boat into the harbour in an effort to prevent the vessel from capsizing.
The Migration Committee of the Parliamentary Assembly of the Council of Europe has appointed Tineke Strik (Netherlands, SOC) to prepare a report on the deaths of boat people who have died in the Mediterranean since January 2011.
From the PACE press statement: “‘There have been allegations that migrants and refugees are dying after their appeals for rescue have been ignored,’ said Mrs Strik. ‘Such a grave allegation must be urgently investigated. I intend to look into the manner in which these boats are intercepted – or not – by the different national coastguards, the EU’s border agency FRONTEX, or even military vessels. I also intend to speak to witnesses directly involved in reported incidents, and put questions to national authorities, the UNHCR, FRONTEX and NATO, among others.’ On 8 May, the Guardian newspaper reported that 61 boat people escaping from Libya had died after their appeals for rescue had been ignored by armed forces operating in the Mediterranean. The following day PACE President Mevlüt Çavusoglu called for ‘an immediate and comprehensive enquiry’ into the incident.”
Click here for PACE press statement.
PACE Adopts Resolution and Recommendation Regarding the Interception and Rescue at Sea of Asylum Seekers, Refugees and Irregular Migrants
Here are extensive excerpts:
“1. The surveillance of Europe’s southern borders has become a regional priority. The European continent is having to cope with the relatively large-scale arrival of migratory flows by boat from Africa, reaching Europe mainly through Italy, Malta, Spain, Greece and Cyprus.
5. The Assembly notes that measures to manage these maritime arrivals raise numerous problems, of which five are particularly worrying:
5.1. Despite several relevant international instruments satisfactorily setting out the rights and obligations of states and individuals applicable in this area, interpretations of their content appear to differ. Some states do not agree on the nature and extent of their responsibilities in specific situations and some states also call into question the application of the principle of non-refoulement on the high seas;
5.2. While the absolute priority in the event of interception at sea is the swift disembarkation of those rescued to a “place of safety”, the notion of “place of safety” does not appear to be interpreted in the same way by all member states. Yet it is clear that the notion of “place of safety” should not be restricted solely to the physical protection of people, but necessarily also entails respect for their fundamental rights;
5.3. Divergences of this kind directly endanger the lives of the persons to be rescued, in particular by delaying or preventing rescue measures, and are likely to dissuade seafarers from rescuing people in distress at sea. Furthermore, they could result in a violation of the principle of non-refoulement in respect of a number of persons, including some in need of international protection;
5.4. Although the European Agency for the Management of Operational Cooperation at the External Borders of the Member states of the European Union (Frontex) plays an ever increasing role in interception at sea, the guarantees of respect for human rights and obligations arising under international and European Union law in the context of the joint operations it co-ordinates are inadequate;
5.5. Finally, these sea arrivals place a disproportionate burden on the states located on the southern borders of the European Union. The goal of responsibilities being shared more fairly and greater solidarity in the migration sphere between European states is far from being attained.
6. The situation is rendered more complex by the fact that these migratory flows are of a mixed nature and therefore call for specialised and tailored protection-sensitive responses in keeping with the status of those rescued. To respond to sea arrivals adequately and in line with the relevant international standards, the states must take account of this aspect in their migration management policies and activities.
8. Finally and above all, the Assembly reminds the member states that they have both a moral and legal obligation to save persons in distress at sea without the slightest delay, and unequivocally reiterates the interpretation given by the Office of the United Nations High Commissioner for Refugees (UNHCR), which states that the principle of non-refoulement is equally applicable on the high seas. The high seas are not an area where states are exempt from their legal obligations, including those emerging from international human rights law and international refugee law.
9. Accordingly, the Assembly calls on the member states, when conducting maritime border surveillance operations, whether in the context of preventing smuggling and trafficking in human beings or in connection with border management, be it in the exercise of de jure or de facto jurisdiction, to:
9.1. fulfil without exception and without delay their obligation to save people in distress at sea;
9.2. ensure that their border management policies and activities, including interception measures, recognise the mixed make-up of flows of individuals attempting to cross maritime borders;
9.3. guarantee for all intercepted persons humane treatment and systematic respect for their human rights, including the principle of non-refoulement, regardless of whether interception measures are implemented within their own territorial waters, those of another state on the basis of an ad hoc bilateral agreement, or on the high seas;
9.4. 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;
9.5. carry out as a priority action the swift disembarkation of rescued persons to a “place of safety” and interpret a “place of safety” as meaning a place which can meet the immediate needs of those disembarked and in no way jeopardises their fundamental rights, since the notion of “safety” extends beyond mere protection from physical danger and must also take into account the fundamental rights dimension of the proposed place of disembarkation;
9.6. guarantee access to a fair and effective asylum procedure for those intercepted who are in need of international protection;
9.7. guarantee access to protection and assistance, including to asylum procedures, for those intercepted who are victims of human trafficking or at risk of being trafficked;
9.8. ensure that the placement in a detention facility of those intercepted – always excluding minors and vulnerable categories –, regardless of their status, is authorised by the judicial authorities and occurs only where necessary and on grounds prescribed by law, that there is no other suitable alternative and that such placement conforms to the minimum standards and principles set forth in Assembly Resolution 1707 (2010) on the detention of asylum seekers and irregular migrants in Europe;
9.9. 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, and conclude new bilateral agreements specifically containing such human rights guarantees and measures for their regular and effective monitoring;
9.10. sign and ratify, if they have not already done so, the aforementioned relevant international instruments and take account of the Guidelines of the International Maritime Organisation (IMO) on the Treatment of Persons rescued at Sea;
9.11. sign and ratify, if they have not already done so, the Council of Europe Convention on Action against Trafficking in Human Beings (CETS No. 197) and the so-called “Palermo Protocols” to the United Nations Convention against Transnational Organized Crime (2000);
9.12. ensure that maritime border surveillance operations and border control measures do not affect the specific protection afforded under international law to vulnerable categories such as refugees, stateless persons, women and unaccompanied children, migrants, victims of trafficking or at risk of being trafficked, or victims of torture and trauma.
10. The Assembly is concerned about the lack of clarity regarding the respective responsibilities of European Union states and Frontex and the absence of adequate guarantees for the respect of fundamental rights and international standards in the framework of joint operations co-ordinated by that agency. While the Assembly welcomes the proposals presented by the European Commission to amend the rules governing that agency, with a view to strengthening guarantees of full respect for fundamental rights, it considers them inadequate and would like the European Parliament to be entrusted with the democratic supervision of the agency’s activities, particularly where respect for fundamental rights is concerned.
4. [***] the Assembly reminds the Committee of Ministers of its dual responsibility: to support those member states that are in need, but also to make sure that all human rights obligations are complied with in the context of the interception and rescue at sea of asylum seekers, refugees and irregular migrants, including by guaranteeing to those intercepted access to a fair and efficient asylum procedure.
5. The Assembly therefore calls on the Committee of Ministers to:
5.1. include in the training material all necessary elements to enable the trained persons to proceed to a screening assessment of the international protection needs of intercepted persons and to ensure that staff involved in the operations of the European Agency for the Management of Operational Cooperation at the External Borders of the Member states of the European Union (Frontex) are trained accordingly;
5.2. define, in close co-operation with the Office of the United Nations High Commissioner for Refugees (UNHCR), guidelines and standard operating procedures, when interception and rescue at sea takes place, determining minimum administrative procedures to guarantee that those persons with international protection needs are identified and provided with the appropriate protection;
5.3. continue monitoring the situation of large-scale arrivals of irregular migrants and asylum seekers, and in particular the issue of interception and rescue at sea, including by holding extraordinary meetings on the situation, where appropriate, and use the good offices of the UNHCR with its representative at the Council of Europe, where relevant.”
Click here for full text of Resolution 1821 (2011).
Click here for full text of Recommendation 1974 (2011).
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.
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.)
[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:
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:
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
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 ?
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.
Also, click here for a post by Costanza Hermanin, an Open Society Justice Initiative consultant.
PACE President Mevlüt Cavusoglu announced today that the PACE Migration Committee will conduct an inquiry into the incident that occurred in April when 61 migrants died at sea after leaving Libya. Survivors from the boat reported that several ships, including naval ships, ignored their calls for assistance. The Committee will designate a Rapporteur this week who will look into this incident as well as “other cases where better interception and rescue co-ordination could have saved human lives.”